UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6060

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

SAMUEL KEITH KERR, II, 

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. Louise W. Flanagan, District Judge. (5:08-cr-00302-FL-1; 5:16-cv-00648-FL)

Argued: March 12, 2021 Decided: June 14, 2021

Before GREGORY, Chief Judge, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which 

Judge Floyd and Judge Thacker joined.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. David A. Bragdon, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois,

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, 

Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Chief Judge:

After pleading guilty, Samuel Keith Kerr II was convicted of conspiracy to commit 

robbery and for using a firearm in relation to a crime of violence. Following United States 

v. Davis, 139 S. Ct. 2319 (2019) and United States v. Simms, 914 F.3d 229 (4th Cir. 2019) 

(en banc), Kerr filed a § 2255 motion to vacate his firearm convictions on the grounds that 

his conspiracy conviction did not serve as a predicate crime of violence under § 924(c). 

The Government joined Kerr’s motion, and the court vacated Kerr’s firearm offenses and 

scheduled a resentencing. About three months later—but before the resentencing—the 

Government realized it made a mistake. It filed a Rule 60(b) motion seeking to amend the 

judgment and reinstate the firearm convictions, which the court granted. We affirm the 

district court’s order amending the judgment, as the court’s initial judgment was an 

interlocutory one, and Rule 54(b) permits a court to revise an interlocutory order at any 

time prior to final judgment.

I.

In 2008, Kerr pleaded guilty to one count of conspiracy to commit Hobbs Act 

Robbery, 18 U.S.C. § 1951, and to two counts of using a firearm in relation to a crime of 

violence, 18 U.S.C. § 924(c). According to the charges,1 Kerr and his co-conspirators 

robbed several stores and a restaurant from July 5 to July 9, for sums of cash ranging from 

$150 to $850. Kerr’s § 924(c) charges related to the robberies that took place on July 5 

1 Kerr’s plea agreement did not lay out a separate account of the facts—it simply 

states that he agreed to “plead guilty to the three count Criminal Information filed herein.” 

Plea Agreement, United States v. Kerr, No. 5:08-cr-302-f (E.D.N.C. Dec. 8, 2008).
3

and July 9; both charges stated that Kerr “knowingly used and carried a firearm during and 

in relation to a crime of violence prosecutable in a court of the United States, that is, 

robbery affecting interstate commerce in violation of Title 18, United States Code, Section 

1951[.]” J.A. 17. Following Kerr’s guilty plea, the district court sentenced him to 360 

months, or 30 years, in prison.2

After the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 

(2015), Kerr filed a pro se motion to vacate his § 924(c) charges under 28 U.S.C. § 2255. 

The trial court stayed proceedings pending the appeal in Simms, 914 F.3d at 233–37, where 

this Court held that conspiracy to commit Hobbs Act robbery could not serve as a predicate 

offense for a § 924(c) conviction. See also Davis, 139 S. Ct. at 2336. The Government 

subsequently joined Kerr’s motion to vacate his firearm convictions because conspiracy to 

commit Hobbs Act robbery was no longer a valid predicate for § 924(c). Given the joint 

request, the court granted Kerr’s § 2255 motion, vacating his § 924(c) convictions, 

vacating his sentence in its entirety, and scheduling a resentencing hearing. That same day, 

the court entered a judgment to the same effect.

About three months later, the Government realized it made a mistake. It filed a Rule 

60(b) motion seeking to amend the judgment and reinstate the § 924(c) convictions. 

Though Kerr’s § 924(c) convictions had been based on the same underlying conduct that 

formed the basis for his conspiracy conviction, the actual text of his charges referred to 

2 The court sentenced Kerr to 60 months’ imprisonment for his conspiracy count 

and his first § 924(c) conviction, to run concurrently, and 300 months’ imprisonment for 

his second § 924 conviction, to run consecutively.
4

substantive Hobbs Act robberies—not conspiracy—as the predicate crimes of violence for 

his § 924(c) convictions. J.A. 17; see also United States v. Mathis, 932 F.3d 242, 266 & 

n.24 (4th Cir. 2019) (holding substantive Hobbs Act robbery to be a valid predicate for a 

§ 924(c) conviction).

The court held a hearing on the Government’s motion. There, Kerr’s attorney 

argued that the court should deny the motion to amend as untimely because the 

Government filed its motion more than 60 days after the court had vacated Kerr’s 

convictions. Kerr’s attorney also argued that the Government’s motion unfairly prejudiced 

Kerr; but for the Government’s motion to amend, Kerr would have been released that day. 

The district court granted the Government’s motion and reinstated Kerr’s § 924(c) 

convictions. While the trial judge was “pained personally by this set of circumstances,” 

she stated that she “clearly did not have the authority to grant the relief that [she] did,” and 

that “the Government has established under Rule 60(b) of the Federal Rules of Civil 

Procedure[] that it is appropriate for this Court to set aside its prior judgment.” J.A. 85.

In a written order, the court held that the Government’s motion was timely because 

a judgment that grants habeas relief and orders resentencing does not become final until 

the defendant is resentenced. The court acknowledged that because the order was not final, 

the proper vehicle for amending it would not be Rule 60(b)—which governs final orders—

but Rule 54(b), which permits reconsideration of interlocutory orders. But because the 

parties’ briefing focused on Rule 60(b), the court concluded that the Government’s motion 

was timely under its more demanding standard. Kerr appealed.
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II.

This Court granted Kerr a certificate of appealability “on the issue of when the 60-

day period for filing a notice of appeal under Fed. R. App. P. 4(a) begins to run in a § 2255 

proceeding when the order granting relief contemplates resentencing on counts that were not 

the subject of the § 2255 motion, but the resentencing has not yet occurred.” ECF No. 22.

We review a court’s decision to amend a judgment for abuse of discretion. See Ward 

v. AutoZoners, LLC, 958 F.3d 254, 271 (4th Cir. 2020). In the case of an amended judgment 

under Rule 60(b), we “may not review the merits of the underlying order; [we] may only 

review the denial of the motion with respect to the grounds set forth in Rule 60(b).” MLC 

Auto., LLC v. Town of Southern Pines, 532 F.3d 269, 277 (4th Cir. 2008) (quoting In re 

Burnley, 988 F.2d 1, 3 (4th Cir. 1993)). If, however, the underlying order is an interlocutory 

one, then Rule 60(b) does not apply. Fayetteville Inv’rs v. Commercial Builders, Inc., 936 

F.2d 1462, 1473 (4th Cir. 1991). Rather, Rule 54(b) governs, and “any order or other 

decision, however designated, that adjudicates fewer than all the claims or the rights and 

liabilities . . . may be revised at any time before the entry of judgment adjudicating all the 

claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).3

3 Rule 54(b) applies to § 2255 motions due to Federal Rule of Civil Procedure 

81(a)(4) and Rule 12 of the Rules Governing Section 2255 Proceedings for the United 

States District Courts. Cf. United States v. MacDonald, 641 F.3d 596, 616 n.12 (4th Cir. 

2011) (citing same authorities to explain why Federal Rule of Civil Procedure 15 applies 

to § 2255 proceedings); United States v. McRae, 793 F.3d 392, 397 (4th Cir. 2015) (noting 

that Federal Rule of Civil Procedure 60(b) applies to § 2255 proceedings to the extent that 

it is consistent with habeas rules).
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III.

A.

On appeal, Kerr does not dispute that the district court erred by vacating his § 924(c) 

convictions. Instead, he argues that the court’s order vacating the § 924(c) counts was final; 

that the Government’s motion is untimely because it was filed beyond the 60-day timeline 

for appeal; and that the court therefore erred by amending its judgment. But because the 

court’s order vacating the § 924(c) counts was not final, the court was free to revisit its 

judgment and correct its error.4 See Fed. R. Civ. P. 54(b).

Section 2255 allows federal prisoners sentenced unlawfully to “move the court which 

imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). If 

the court finds the sentence unlawful, the court “shall vacate and set the judgment aside and 

shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as 

may appear appropriate.” Id. § 2255(b). Thus,

the end result of a successful § 2255 proceeding must be the vacatur of the 

prisoner’s unlawful sentence (and perhaps one or more of his convictions) 

and one of the following: (1) the prisoner’s release, (2) the grant of a future 

new trial to the prisoner, (3) or a new sentence, be it imposed by (a) a 

resentencing or (b) a corrected sentence.

4 If the court’s order were final and Rule 60(b) were to apply, this Court has “held 

on several occasions that a Rule 60(b) motion is not timely brought when it is made three 

to four months after the original judgment and no valid reason is given for the delay.” 

McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991). While the district 

court accepted the Government’s admission that they filed as soon as they discovered error, 

such negligence by the Government is no valid excuse for delay. See Moses v. Joyner, 815 

F.3d 163, 167 (4th Cir. 2016) (“Were we to reverse the district court’s ruling here as an 

abuse of discretion and accept as timely a motion filed two-and-a-half years after the 

appellant knew or should have known the basis for his 60(b) claim, the ‘reasonable time’ 

limitation in Rule 60(c)(1) would quickly lose all meaning.”) (emphasis added).
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United States v. Hadden, 475 F.3d 652, 661 (4th Cir. 2007).

A court’s § 2255 order granting resentencing does not become final until resentencing is complete. See Andrews v. United States, 373 U.S. 334, 340 (1963). In 

Andrews, the district court granted two prisoners’ § 2255 petitions because they had not been 

given the right to speak on their own behalf during their sentencing hearings. Id. at 337. The 

court scheduled resentencing, but the Government appealed. Id. The Supreme Court held 

that the Government’s appeal was improper because the district court’s order was a nonappealable interlocutory order. Id. Citing the “long-established rule against piecemeal 

litigation in federal cases,” the Court stated that the rule of finality requires “that the 

judgment . . . should be final not only as to all the parties, but as to the whole subject-matter 

and as to all the causes of action involved.” Id. at 340 (quoting Collins v. Miller, 252 U.S. 

364, 370 (1920)). “Until the petitioners are resentenced . . . . none of the parties to this 

controversy will have had a final adjudication of his claims by the trial court[.]” Id.; see also 

United States v. Stitt, 459 F.3d 483 (4th Cir. 2006) (applying Andrews to conclude that a 

§ 2255 order granting a new capital sentencing hearing was not final).

In Hadden, this Court restated the rule in Andrews: “When . . . the district court 

remedies a § 2255 petitioner’s unlawful sentence by resentencing him or correcting his 

sentence . . . [,] the § 2255 petition is not complete until the district court actually resentences 

the prisoner or corrects the prisoner’s sentence.” Hadden, 475 F.3d at 663. The defendant 

in Hadden had two drug convictions and a § 924(c) conviction, and the court granted the 

defendant’s § 2255 motion with respect to his § 924(c) conviction. But instead of ordering 

a resentencing hearing, the trial court “effectively vacated at least a portion of Hadden’s 
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original 228[-]month sentence by entering a new 168[-]month sentence on the remaining 

drug counts.” Id. at 657. This Court concluded that the order correcting the sentence was a 

final order. Id. at 663.

B.

Kerr argues that the only relief he requested was for the court to vacate his § 924(c) 

convictions, and that this relief was complete and final when the court entered its order and 

judgment vacating his § 924(c) convictions. But “the end result of a successful § 2255 

proceeding must be the vacatur of the prisoner’s unlawful sentence . . . and one of the 

following: (1) the prisoner’s release, (2) the grant of a future new trial to the prisoner, (3) 

or a new sentence[.]” Hadden, 475 F.3d at 661 (emphasis added). A court has not fulfilled 

this mandate if it vacates a person’s convictions only to maintain his sentence in jail as if 

he had committed the vacated offenses. Thus, Mr. Kerr’s § 2255 remedy was not complete 

until his sentence had been re-entered to reflect the removal of any unlawful convictions. 

See id. at 669 (acknowledging that this Court embraces the sentencing package theory and 

the idea that “a sentence is not merely the sum of its parts”). That is why Mr. Kerr filed 

his motion, and why he expected the court’s order granting relief to affect his sentence. 

See J.A. 69 (“He reasonably thought that he was going to be released today or could have 

thought that based on the amount of time served and [the Government] consenting to the 

defendant’s motion.”).

In reply, Kerr argues that vacatur of his § 924(c) convictions “corrected” his 

sentence and provided final relief under § 2255. See 28 U.S.C. § 2255(b). But § 2255 

specifies that a court may “correct the sentence.” Id. (emphasis added); see also Hadden, 
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475 F.3d at 661 (describing the “end result” of § 2255 relief as including “a new sentence, 

be it imposed by (a) a resentencing or (b) a corrected sentence”). Correcting the 

convictions—without correcting a person’s sentence based on those convictions—is not 

enough to complete the relief afforded under the statute.

Rather, a district court “correct[s]” a sentence when the district court vacates the 

original sentence and enters a new one. As this Court explained in Hadden:

To “correct” means to “make or set right.” Merriam Webster’s Collegiate 

Dictionary 280 (11th ed. 2004). This is precisely what the district court did 

here; it removed the error from Hadden’s original sentence—and thereby 

made it “right”—by excising the unlawful 60 month term on the § 924(c) 

count and re-entering Hadden’s original 168 month term on the drug counts

. . . . If the phrase “correct[ing the prisoner’s unlawful] sentence” means 

anything in this context, it must describe what the district court did here.

Hadden, 475 F.3d at 667–68 (alterations added in Hadden); United States v. Chaney, 911 F.3d 

222, 224, 226 (4th Cir. 2018) (affirming the district court’s decision “to strike that [unlawful] 

conviction and sentence” but “reimpos[e] . . . the sentences on the other two counts [], thereby 

‘indicat[ing] that it was satisfied with the resulting sentence’”). Here, the court did not correct 

Kerr’s sentence because it had not yet entered a new sentence. Thus, the § 2255 relief it 

granted was not final.

Other circuits agree that a petitioner seeking to correct their sentence has not 

received final relief under § 2255 until the petitioner receives a new sentence. “At least 

five circuits have [understood Andrews to say] that in multicount situations the final 

resolution must be achieved on all counts before the decision may be appealed with respect 

to any count.” Haynes v. United States, 873 F.3d 954, 956–57 (7th Cir. 2017) (citing 

United States v. Hammer, 564 F.3d 628, 632–34 (3d Cir. 2009); United States v. Hayes, 
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532 F.3d 349, 352 (5th Cir. 2008); United States v. Futch, 518 F.3d 887, 894 (11th Cir. 

2008); Stitt, 459 F.3d at 485–86; United States v. Martin, 226 F.3d 1042, 1048 (9th Cir. 

2000)).

C.

Kerr also emphasizes that the district court entered a “judgment” following its order 

vacating his convictions and scheduling resentencing. See Opening Br. at 6, 10–11, 13. 

However, the court’s entry of judgment does not transform an interlocutory order into a 

final one. The entry of judgment is a procedural action: its “sole purpose . . . [i]s to clarify 

when the time for appeal [] begins to run” in cases where the judgment accompanies a final 

order. Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 (1978). According to the Civil Rules 

Advisory Committee’s comments to the 1963 rules amendment requiring a separate entry 

of judgment, “some difficulty ha[d] arisen, chiefly where the court has written an opinion 

or memorandum containing some apparently directive or dispositive words . . . . it ha[d] 

become a matter of doubt whether the purported entry of a judgment was effective, starting 

the time running for post-verdict motions[.]” Id. at 384–85. “The amended rule eliminates 

these uncertainties by requiring that there be a judgment set out on a separate document—

distinct from any opinion or memorandum—which provides the basis for the entry of 

judgment.” Id. at 385. The entry of judgment in a separate document is therefore a 

procedural action to mark when applicable time limitations begin to run—the entry itself 

does not transform an interlocutory order into a final one.
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Rule 54 confirms this reading. Under Rule 54(b),

any order or other decision, however designated, that adjudicates fewer than 

all the claims or the rights and liabilities . . . does not end the action as to any 

of the claims or parties and may be revised at any time before the entry of a 

judgment adjudicating all the claims and all the parties’ rights and liabilities.

Fed. R. Civ. P. 54(b) (emphasis added). While Rule 54(b) permits a district court to “direct 

entry of a final judgment” on an order resolving fewer than all claims, it may do so “only 

if the court expressly determines that there is no just reason for delay.” Id. Thus, even if 

the court had intended to direct partial, final judgment in its initial order granting relief, the 

court could not have done so by entry of judgment without also expressly finding that there 

were no just reasons for delaying final judgment. See MCI Constructors, LLC v. City of 

Greensboro, 610 F.3d 849, 855 (4th Cir. 2010).

Consequently, the court’s initial judgment granting Kerr § 2255 relief 

“adjudicate[d] fewer than all the claims or the rights and liabilities,” meaning that it did 

not “end the action as to any of the claims” and could be revised “at any time before the 

entry of a judgment adjudicating all the claims[.]” Fed. R. Civ. P. 54(b). Accordingly, the 

court did not abuse its discretion by amending its initial judgment prior to resentencing.

IV.

We recognize that the Government made an egregious error in this case. But 

because the Federal Rules of Civil Procedure provide flexibility to correct mistakes prior 

to final judgment, the court was free to amend the judgment before resentencing. For the 

foregoing reasons, we affirm the district court’s judgment.

AFFIRMED