United States Court of Appeals

For the Eighth Circuit 

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No. 21-2218

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United States of America

 Plaintiff - Appellee

v.

Duane D. Worthington

 Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa 

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Submitted: April 13, 2022

Filed: January 5, 2024

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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges. 

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GRASZ, Circuit Judge. 

After vacating Duane D. Worthington’s sentence of 425 months of 

imprisonment under 28 U.S.C. § 2255, the district court1 imposed a reduced sentence 

1

The Honorable John A. Jarvey, then Chief Judge, United States District Court 

for the Southern District of Iowa, now retired.
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of 420 months. Worthington appeals, arguing the district court procedurally erred 

by miscalculating his advisory sentencing range. We affirm.

I. Background

 In 1996, Worthington stole $30,000 worth of traveler’s checks from an 

insurance and travel agency in Iowa. During the robbery and getaway, Worthington 

threatened two people with a firearm. Eventually he was arrested, and a grand jury 

charged him with four crimes: (Count One) receipt and possession of stolen 

property, 18 U.S.C. § 2315; (Count Two) interfering with and affecting commerce 

by robbery, 18 U.S.C. §§ 1951, 3559(c); (Count Three) using and carrying a firearm 

during and in relation to the robbery, 18 U.S.C. § 924(c); and (Count Four) 

unlawfully possessing a firearm as an armed career criminal, 18 U.S.C. §§ 922(g)(1), 

924(e). Later, the government filed a notice that it would seek enhanced penalties

on account of Worthington’s past convictions for robbery and attempted robbery. 

The government alleged the past convictions constituted “serious violent felonies” 

under 18 U.S.C. § 3559(c) (also known as the federal three strikes statute), and 

“violent felonies” under 18 U.S.C. § 924(e) (also known as the Armed Career 

Criminal Act or ACCA). If convicted, Worthington thus faced a mandatory life 

sentence on Count Two and a fifteen-year minimum sentence on Count Four. 

On the morning of trial, Worthington and the government reached a binding 

plea deal. See Fed. R. Crim. P. 11(c)(1)(C) (providing a plea agreement may 

stipulate “that a specific sentence or sentencing range is the appropriate disposition 

of the case” and “such a recommendation or request binds the court once the court 

accepts the plea agreement”). Under the agreement, Worthington would plead guilty 

to all four counts of the indictment, and receive concurrent prison sentences of 365 

months on Counts One, Two, and Four, to be followed by a statutorily-required 60-

month sentence on Count Three, see 18 U.S.C. § 924(c)(1)(A)(i). The agreement 

prevented the government from seeking a life sentence and required Worthington to 

waive his right to appeal or seek collateral relief under § 2255. The district court 

accepted the plea, and the case proceeded to sentencing. 
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United States Probation completed a presentence investigation report (PSR). 

The PSR noted the binding plea agreement and the resulting “agreed upon sentence 

[of] 425 months imprisonment[.]” The PSR noted the sentence was within the range 

calculated under the then-mandatory United States Sentencing Guidelines (U.S.S.G. 

or Guidelines) of 292 to 365 months for Counts One, Two, and Four, plus an 

additional 60 months on Count Three to run consecutively. For purposes of 

sentencing, the PSR determined Worthington was both: (1) a “career offender” under 

U.S.S.G. § 4B1.1 because of multiple past convictions for robbery and attempted 

robbery that were “crimes of violence” as defined by U.S.S.G. § 4B1.2(a); and (2) 

an “armed career criminal” under U.S.S.G. § 4B1.4(a) because those same crimes

were “violent felonies” as defined by 18 U.S.C. § 924(e). The district court adopted 

the PSR and imposed the agreed upon 425-month sentence. Worthington did not 

directly appeal his federal conviction or sentence. 

In 1998, Worthington moved under 28 U.S.C. § 2255, claiming ineffective 

assistance of counsel in violation of the Sixth Amendment. See Strickland v. 

Washington, 466 U.S. 668, 687–88 (1984). The district court denied the motion, 

explaining Worthington could not show prejudice as necessary for an ineffective 

assistance claim, noting his attorney “vigorously represented him and negotiated 

very favorable terms for his plea agreement.” Worthington applied for a certificate 

of appealability, which this court denied.

 In 2015, the Supreme Court held that increasing a statutory minimum sentence 

under the ACCA’s residual clause violated the Fifth Amendment’s due process 

clause. See Johnson v. United States, 576 U.S. 591, 593, 595, 602 (2015). In 2016, 

the Supreme Court determined Johnson’s holding was retroactive on collateral 

review. See Welch v. United States, 578 U.S. 120, 135 (2016). 

In May 2016, Worthington sought permission to file a successive § 2255 

motion in order for the district to fully explore and determine the merits of his claim 

for Johnson relief. Worthington suggested both his armed career criminal status and 

his career offender status should be revisited. Worthington also suggested Johnson

may impact his conviction and sentence for using a firearm during a crime of 
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violence in violation of 18 U.S.C. § 924(c). This court held the motion in abeyance 

pending the Supreme Court’s resolution in Beckles v. United States, 580 U.S. 256 

(2017). 

In Beckles, the Supreme Court held that § 4B1.2(a)’s residual clause for 

defining crimes of violence for purposes of the Guidelines was not subject to a 

challenge under the void-for-vagueness doctrine. 580 U.S. at 267. After Beckles

was decided, this court granted Worthington leave to file an optional supplement to 

his motion addressing the effect of the decision.

Worthington submitted a supplemental brief, arguing Beckles did not control 

because it only resolved the residual-clause issue in the context of an advisory 

Guidelines sentence. Unlike in Beckles, the sentence Worthington sought to 

challenge was imposed when the Guidelines were mandatory. Thus, Worthington 

argued, the due process concerns that triggered the Supreme Court’s decision in 

Johnson still applied with equal force to the mandatory Guidelines that controlled 

his sentence, including § 4B1.2(a)(2)’s residual clause. Without reliance on the 

ACCA’s or § 4B1.2(a)(2)’s residual clauses, Worthington argued he would be able 

to show that none of his state law robbery convictions qualified as career offender 

or ACCA predicate offenses. The government opposed Worthington’s request for 

authorization to file a successive § 2255 motion. 

This court entered judgment in January 2018, granting authorization for 

Worthington to challenge his ACCA sentence based on Johnson. But this court 

denied authorization for Worthington to challenge his career offender Guidelines 

sentence, or his conviction or sentence for the offense under 18 U.S.C. § 924(c).

After the district court’s receipt of the mandate, Worthington argued to the 

district court that his sentence was illegal because his prior robbery convictions no 

longer qualified as violent felonies under the ACCA. Worthington urged the district 

court to “grant his motion for § 2255 relief, vacate his sentence, and schedule a 

resentencing hearing to permit Mr. Worthington to be sentenced anew without 

application of the ACCA.” The government argued in part that relief was precluded 
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by the Rule 11(e)(1)(C) plea agreement and sought specific performance of the 

same. The district court rejected the government’s Rule 11 argument, reasoning 

“Worthington was sentenced on multiple counts that were interdependent” and the 

“parties made no agreement as to what sentence should be imposed if the ACCA did 

not apply.”2

 The district court vacated Worthington’s sentence, ordered preparation 

of a new PSR, and scheduled resentencing.

United States Probation completed an amended PSR to reflect the appropriate 

statutory penalties and exclude reference to the ACCA. The PSR still considered 

Worthington a career offender and kept the now advisory Guidelines range at 292 to 

365 months, plus an additional 60 months on Count Three to run consecutively.

At sentencing, the district court adopted this calculation over Worthington’s 

objection. In doing so, the district court rejected Worthington’s argument that he 

should not be considered a career offender for purposes of recalculating the 

Guidelines range. The district court concluded Worthington’s argument 

contradicted this court’s order granting the certificate of appealability because that 

order “prohibited [Worthington] from challenging his career offender status.” The 

district court then heard arguments from both sides as to the appropriate sentence. 

The government urged the district court to impose the same 425-month sentence, 

while Worthington argued for a “sentence that is below the 425 months.” After 

considering the relevant sentencing factors under 18 U.S.C. § 3553(a), and the 

parties’ arguments, the district court imposed a total sentence of 420 months of 

imprisonment, five months less than his previous sentence.

3

2

The government continues to maintain that the district court erred by 

declining to hold Worthington to the promises in his plea agreement to forgo

collateral relief under § 2255. However, the government did not file a cross appeal 

and so the issue is not properly before us. See Greenlaw v. United States, 554 U.S. 

237, 240 (2008).

 3

The 420-month sentence consisted of 120 months on Count One, 240 months 

on Count Two, 60 months on Count Three, and 120 months on Count Four. Counts 
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II. Analysis

On appeal, Worthington argues the district court procedurally erred by failing 

to correctly calculate the applicable Guidelines range. Worthington claims our 

precedent required the district court to apply the law in effect at resentencing 

following the grant of his § 2255 motion, citing to United States v. Tidwell, 827 F.3d 

761, 764 (8th Cir. 2016).

According to Worthington, “[t]he de novo nature of the resentencing hearing 

required the district court to correctly assess [his] career offender status” for 

purposes of making its calculation under the current version of the Guidelines, which 

no longer includes a residual clause in § 4B1.2’s definition of crime of violence. See 

U.S.S.G. supp. to app. C, amend. 798, at 128 (U.S. Sentencing Comm’n 2016) 

(amending the definition of “crime of violence” to remove the residual clause). And, 

because of the removal of § 4B1.2(a)(2)’s residual clause and intervening 

interpretative case law, Worthington maintains that his past robbery and attempted 

robbery convictions, as well as his Hobbs Act robbery conviction, all fail to qualify 

as crimes of violence. Thus, under Worthington’s theory of the case, he should not 

have been considered a career offender and his advisory Guidelines range should 

have been calculated at 70 to 87 months of imprisonment, to be followed by the 

60-month consecutive sentence for Count 3.

The district court rejected Worthington’s argument in light of our January

2018 judgment granting only limited authorization to pursue his § 2255 motion. The 

district court reasoned Worthington’s argument was foreclosed by our express denial 

of authorization to challenge his career offender Guidelines sentence. Applying de 

novo review to the district court’s interpretation of our judgment’s effect on the 

resentencing, see United States v. Hamilton, 950 F.3d 567, 571 (8th Cir. 2020), we 

affirm. 

One and Two were to be served concurrently. Counts Three and Four were to be 

served consecutive to each other and to Counts One and Two.
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It is fundamental that “inferior tribunals are bound to honor the mandate of 

superior courts within a single judicial system.” United States v. Castellanos, 608 

F.3d 1010, 1016 (8th Cir. 2010) (quoting United States v. Bartsh, 69 F.3d 864, 866 

(8th Cir. 1995)). “When an appellate court remands a case to the district court, all 

issues decided by the appellate court become the law of the case, and the district 

court on remand must adhere to any limitations imposed on its function . . . by the 

appellate court.” Id. (cleaned up) (ellipsis in original) (quoting same). See also 

United States v. Behler, 187 F.3d 772, 777 (8th Cir. 1999) (declining to consider the 

appellant’s arguments relating to the propriety of certain enhancements “[i]n light of 

the law of the case and the limited language of our prior opinion”). 

Here, we granted Worthington authorization to challenge his 

statutory-minimum sentence under the ACCA. Without such authorization, 

Worthington could not bring his motion. See 28 U.S.C. §§ 2244(b)(3), 2255(h). But 

in the same judgment, we expressly denied Johnson authorization to challenge his 

“career-offender Guidelines sentence” or his “conviction and sentence for the 

offense under 18 U.S.C. § 924(c).” The district court rightly understood it was 

bound by this limitation and thus not free to relitigate the issue of whether 

Worthington was a career offender for purposes of sentencing. 

Worthington downplays this limitation on the district court, claiming it was 

mere dicta and had no bearing on the district court’s ability to reconsider 

Worthington’s status as a career offender under the then-current version of the 

Guidelines. We disagree.

Our statement denying Worthington authorization to challenge his career

offender Guidelines sentence was not dicta. “Dicta is a judicial comment made 

while delivering a judicial opinion, but one that is unnecessary to the decision in the 

case and therefore not precedential.” Sanzone v. Mercy Health, 954 F.3d 1031, 1039 

(8th Cir. 2020) (cleaned up) (quoting Passmore v. Astrue, 533 F.3d 658, 661 (8th 

Cir. 2008)). Because Worthington had already unsuccessfully sought § 2255 relief, 

he needed our authorization to challenge his sentence. See Donnell v. United States, 
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826 F.3d 1014, 1015, 1017 (8th Cir. 2016) (denying authorization for petitioner to 

file a successive § 2255(h) motion based on an argument that § 4B1.1’s residual 

clause was unconstitutionally vague); United States v. LaPrade, 733 F. App’x 592, 

594 (3d Cir. 2018) (unpublished) (explaining the district court lacked jurisdiction to 

consider a challenge to a sentence that was outside the district court’s mandate 

“unless and until” the circuit court authorized a separate successive § 2255 motion 

to pursue this new challenge). 

In seeking this authorization, Worthington argued Johnson gave the necessary 

hook to relitigate his (1) sentence under the ACCA, (2) career offender sentence, and 

(3) conviction and sentence for using a firearm during a crime of violence in 

violation of 18 U.S.C. § 924(c). In resolving his motion, we authorized a challenge 

to his ACCA sentence based on Johnson, but denied authorization to bring his other 

two challenges. This was not dicta because it was necessary to resolve his motion. 

Under the circumstances of this case, the denial of authorization for Worthington to 

bring these other challenges was akin to a remand to the district court with express 

limitations on its review. The district court was not free to ignore the limitation. See 

Behler, 187 F.3d at 777. 

Contrary to Worthington’s contention, our holding here does not run afoul of 

our opinion in Tidwell. In Tidwell, we held that when calculating the Guidelines 

range during a resentencing ordered under § 2255, the district court could consider 

a defendant’s conviction that occurred after his original sentencing. 827 F.3d at 763, 

764. In reaching this conclusion, we distinguished a de novo resentencing under 

§ 2255 from resentencing after a general remand on direct appeal, during which the 

district court should apply the Guidelines that were in place during the original 

sentencing. Id. at 764 n.3. It was in this context the court in Tidwell observed that 

when resentencing de novo under § 2255 the district court “was clearly correct” in 

applying “the guidelines in effect at the time of resentencing, not at the time of the 

original sentencing.” Id. at 764. 
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Although this observation was arguably dicta, a later panel characterized this 

statement as a holding. See United States v. Binkholder, 909 F.3d 215, 219 n.5 (8th 

Cir. 2018).

4

 Regardless, the rule from Tidwell cannot be divorced from its rationale. 

As explained in Binkholder, “[t]he rationale for this rule, according to Tidwell, is 

that a resentencing under § 2255 is de novo, unlike a resentencing on remand from 

a direct appeal.” 909 F.3d at 219 n.5 (citing Tidwell, 827 F.3d at 764 & n.3). Outside 

the context of a de novo re sentencing, the rationale disappears for applying 

Tidwell’s rule regarding which version of Guidelines to use. 

And this brings us back to the impact of our denial of authorization for 

Worthington to challenge his career offender sentence. The district court was bound 

to adhere to this denial of authorization and thus, unlike most § 2255 proceedings,

was not free to engage in a true de novo resentencing. Thus, we conclude the district 

court did not procedurally err by refusing to relitigate Worthington’s career offender 

status or recalculate Worthington’s advisory sentencing range under the newer 

version of the Guidelines. 

 

4

The court in Binkholder also observed that Tidwell’s § 2255-resentencingunder-the-current-version-of-the-Guidelines rule created a “discrepancy” with an 

“otherwise uniform sentencing scheme” that typically sought to “make sure that 

defendants are sentenced under the version of the Guidelines in effect on the date of 

their original sentencing.” Id. at 218–19 & n.5. Under the normal resentencing 

rules, the “defendants who receive an erroneous sentence and successfully appeal 

are returned to the position they would have been in had they been correctly 

sentenced the first time around.” Id. at 219. “But they do not receive the 

unwarranted benefit of a favorable change in the Guidelines—unless the change was 

made retroactive, in which case it would be available to all defendants regardless of 

the outcome of a direct appeal.” Id. Observing “[n]o other circuit” had addressed 

this discrepancy in approaches, the court questioned Tidwell’s § 2255 resentencing 

rule. Id. at 219 n.5 (explaining it need not address the issue, “as any irrationality 

would only call into question Tidwell’s rule”). 
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III. Conclusion

Accordingly, we affirm the district court’s judgment. 

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