In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1680

STACY M. HAYNES,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 16-4106 — Joe Billy McDade, Judge.

____________________

ARGUED OCTOBER 4, 2017 — DECIDED OCTOBER 17, 2017

____________________

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge. In 1998 Stacy Haynes was 

convicted of 12 federal crimes and sentenced to life plus 105 

years in prison. His direct appeal was unsuccessful. United 

States v. Haynes, No. 98-1460 (7th Cir. Jan. 13, 1999) (unpublished order). A collateral attack under 28 U.S.C. §2255 

also failed. But after the Supreme Court decided Johnson v. 

United States, 135 S. Ct. 2551 (2015), and in Welch v. United 

States, 136 S. Ct. 1257 (2016), made Johnson retroactive on col-
2 No. 17-1680

lateral review, we authorized Haynes to pursue another collateral attack. See 28 U.S.C. §§ 2244(b)(2)(A), 2255(h)(2).

Johnson holds that the residual clause in 18 U.S.C. 

§924(e)(2)(B)(ii) is unconstitutionally vague. That clause labels as a violent felony a crime that “involves conduct that 

presents a serious potential risk of physical injury to another”. Our court has held that other similarly worded clauses 

elsewhere in the Criminal Code also are unconstitutional. 

See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 

2015) (18 U.S.C. §16(b)); United States v. Cardena, 842 F.3d 

959, 996 (7th Cir. 2016) (18 U.S.C. §924(c)(3)(B)). The district 

court concluded that Johnson, as understood in Vivas-Ceja

and Cardena, implies the invalidity of yet another residual 

clause, the one in 18 U.S.C. §3559(c)(2)(F)(ii). Haynes v. United States, 237 F. Supp. 3d 816, 823 (C.D. Ill. 2017). Haynes’s 

life sentences depend on that residual clause, the judge determined, and he held that Haynes must be resentenced. The 

Supreme Court has under advisement a case, Sessions v. Dimaya, No. 15–1498 (argued Oct. 2, 2017), that may reveal 

whether Vivas-Ceja and Cardena correctly applied Johnson, 

but the district judge properly treated those decisions as controlling unless the Justices say otherwise.

Although he concluded that Haynes must be resentenced, the judge did not set aside any of Haynes’s convictions. Haynes argued that three of his §924(c) convictions 

depend on a conclusion that interstate travel in aid of racketeering, 18 U.S.C. §1952(a)(2), is a crime of violence. Section 

924(c) makes it a crime to use a firearm when committing a 

crime of violence. Knock out the classification of a predicate 

offense as a crime of violence and you knock out the §924(c) 

conviction.
No. 17-1680 3

The district court recognized that Hobbs Act robbery, 18 

U.S.C. §1951, is a crime of violence under the elements 

clause of §924(c)(3)(A) rather than the residual clause of 

§924(c)(3)(B). See United States v. Anglin, 846 F.3d 954, 964–65

(7th Cir. 2017), remanded on other grounds, No. 16–9411 

(U.S. Oct. 2, 2017). The elements clause designates as a crime 

of violence a felony that “has as an element the use, attempted use, or threatened use of physical force against the person 

or property of another”. Johnson does not affect the elements 

clauses of §924(c)(3)(A) and comparable statutes. See Stanley 

v. United States, 827 F.3d 562 (7th Cir. 2016); Yates v. United 

States, 842 F.3d 1051 (7th Cir. 2016). The district court concluded that Haynes’s §1952(a)(2) convictions should be classified the same way as the §1951 offense, because his interstate travel set the stage for robberies. Haynes immediately 

appealed, and his brief in this court contends that, whatever 

may hold for Hobbs Act robbery, the crime of interstate 

travel for the purpose of committing racketeering does not 

satisfy the elements clause of §924(c)(3)(A).

When this collateral attack began, Haynes contested the 

six life sentences he had received under §3559(c)—one for 

each conviction under §1951 or §1952—plus his six convictions under §924(c). He won in part and lost in part. The resentencing that has been ordered on the §1951 and §1952 

convictions may well affect the sentences on the §924(c) convictions, if only because the norm is to resentence on all 

counts when any conviction is vacated or needs a new sentence. See United States v. Pennington, 667 F.3d 953, 958 n.3 

(7th Cir. 2012); United States v. Shue, 825 F.2d 1111, 1113–14 

(7th Cir. 1987). Sentencing under 18 U.S.C. §3553(a) and the 

Sentencing Guidelines requires the court to craft a penalty 

appropriate to the offender and all related convictions and 
4 No. 17-1680

relevant conduct. After removing the life sentences that had 

been mandated by §3559(c), the district judge must select 

new sentences for the §1951 and §1952 convictions. The 

length of those sentences may affect the appropriate length 

of the §924(c) sentences as well.

So this proceeding is not over. Until the judge has resentenced Haynes, a step that lies in the future, it is not over on

any of the 12 counts of conviction, because the new sentences 

will affect all 12. See Garner v. United States, 808 F.3d 716 (7th 

Cir. 2015). But even if the district judge were not planning to 

resentence Haynes on the three §924(c) counts that he contests in this court, the appeal would be premature. The unit 

of finality in federal criminal law is the indictment, not a 

single count of an indictment. Although the Criminal Appeals Act, 18 U.S.C. §3731, permits the United States to appeal from an order dismissing a single count, see United 

States v. Davis, 793 F.3d 712 (7th Cir. 2015) (en banc) (discussing how §3731 departs from ordinary rules of finality), a defendant normally must wait until the whole prosecution has 

been completed, and every count has been finally resolved, 

before taking an appeal. Holman v. Gilmore, 126 F.3d 876, 881 

(7th Cir. 1997); United States v. Kaufmann, 951 F.2d 793, 795 

(7th Cir. 1992). Otherwise cases would be fractured. Take 

Haynes’s situation: an appeal concerning the validity of 

three §924(c) counts may well be followed by another appeal 

concerning the length of the sentences still to be imposed on 

six or more counts, plus the relation between those sentences 

and the sentences on the §924(c) convictions.

When this appeal was briefed, both Haynes and the 

United States assumed that finality in proceedings under 

§2255 is evaluated without regard to impending resentenc-
No. 17-1680 5

ing. They treated the request for collateral relief as a separate 

suit, which ended when the district court announced that 

some convictions required new sentences and that other 

convictions would not be vacated. But that’s not how the 

Supreme Court in Andrews v. United States, 373 U.S. 334 

(1963), understood the effect of an order requiring a defendant’s resentencing.

Andrews and a codefendant filed §2255 motions contending that their sentences were invalid because they had 

not been offered an opportunity for allocution. After the district judge agreed, the United States appealed. The court of 

appeals reversed, holding that the absence of an opportunity 

to address the sentencing judge was not a ground of collateral relief under §2255. The Supreme Court reversed in turn, 

holding that the district court’s decisions were not final and 

were not subject to interlocutory appeal under the Criminal 

Appeals Act, which does not apply in §2255 proceedings. 

The Court concluded that, when a judge in a §2255 proceeding orders a resentencing, the §2255 proceeding is not over, 

and the decision is not appealable, until that resentencing 

has occurred.

Andrews did not entail multiple counts for each defendant, nor did it present a situation in which a collateral attack 

under §2255 leads to resentencing on some counts while the 

validity of others is unaffected. But it strongly suggests that 

the §2255 proceeding is not over until any required resentencing has occurred, after which an appeal from the new 

sentence presents all issues in the §2255 proceeding and the 

criminal case alike. At least five circuits have so understood 

it, holding that in multicount situations the final resolution 

must be achieved on all counts before the decision may be 
6 No. 17-1680

appealed with respect to any count. See United States v. 

Hammer, 564 F.3d 628, 632–34 (3d Cir. 2009); United States v. 

Hayes, 532 F.3d 349, 352 (5th Cir. 2008); United States v. Futch, 

518 F.3d 887, 894 (11th Cir. 2008); United States v. Stitt, 459 

F.3d 483, 485–86 (4th Cir. 2006); United States v. Martin, 226 

F.3d 1042, 1048 (9th Cir. 2000). We recognize that Ackerland

v. United States, 633 F.3d 698 (8th Cir. 2011), permitted the 

prosecutor to appeal in a §2255 proceeding in advance of resentencing, but that decision contradicts Andrews, a case the 

Eighth Circuit did not mention. Indeed, the Eighth Circuit 

did not discuss finality at all. (It discussed whether the appeal was timely but not whether the district court’s decision 

was final.)

At oral argument we asked the parties to file memoranda 

discussing Andrews and later decisions such as Hammer. To

their credit, they acknowledged the jurisdictional problem. 

We understand why Haynes filed an immediate appeal; his 

lawyer was concerned that, if he waited until the resentencing, the prosecutor might contend that the time to appeal 

had expired. But with today’s opinion the law in the Seventh 

Circuit is clear. We agree with Hammer, Hayes, Futch, Stitt, 

and Martin, and we hold that, whether a §2255 proceeding 

concerns one count or many counts, when a district court 

orders resentencing on any count, the decision is not final 

until the new sentence has been imposed.

The appeal is dismissed for want of jurisdiction.