### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 1680
S TACY M. H AYNES , Petitioner

- Appellant ,

v.
U NITED S TATES OF A MERICA , Respondent

- Appellee

.

____________________ Appeal from t he United States District Court for the Central District of Illinois

. No. 16

- 4106

— Joe Billy McDade
, Judge

.

____________________
A RGUED O CTOBER 4, 2017

— D ECIDED O CTOBER 17, 2017

____________________

Before B AUER , E ASTERBROOK , and M ANION , Circuit Judges

. E ASTERBROOK , 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) (u npublished 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 co l-2 No. 17

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lateral review, w e authorized Haynes to pursue another co llate ral 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 v ague. That clause l abels as a violent felony a crime that “ involves conduct that presents a serious potenti al risk of physical injury to anot her ”. 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 , 84 2 F.3d 959, 996 (7th Cir. 2016) (18 U.S.C. §924(c)(3)(B)). The district

c ourt 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. Uni ted States , 237 F. Supp. 3d 81 6, 823 (C.D. Ill. 2017). Haynes’s life sentences depend on that residual clause, the judge d etermined, and he held that Haynes must be resentenced. The Supreme Court has under advisement a case, Sessions v. D imaya , 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 co ntrolling unless the Justices say otherwise. Although he concluded that Haynes must be rese ntenced, the judge did not set aside any of Haynes’s convi ctions. Haynes argued that three of his §924(c) convictions depend on a conclusion that interstate travel in aid of racke teering, 18 U.S.C. §1952 (a)(2) , is a crim e of violence. Section 924(c) makes it a crime to use a firearm when committing a

cr ime of violence. Knock out the classification of a predicate offense as a crime of vio lence and you kn ock out the §924(c) conviction.No. 17

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T he dis trict court recognized that Hobbs Act robbery , 18 U.S.C. §19 51, 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 e leme nts clause designates as a crime of vio lence a felony that “ has as an element the use, attemp ted use, or threatened use of physical force against the person or property of another ”

. Johnson does not affect the elements clause s 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 co ncluded that Haynes’s §1952 (a)(2) convictions should be cla ssified the same w ay as the §1951 offense , because his inte rstate travel set the stage for robberies

. Haynes immediately appealed, and his br ief in this court contends that, whatever may hold for Hobbs Act robbery, the crime of interstate travel for the purpose of commit tin g 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 receive d under §3559(c)

— one for each conviction under §1951 or §1952

— plus his six convi ctions under §924 (c). He won in part and lost in part. The r esentencing that has been ordered on the § 1951 and §1952 convictions may well affect the sente nces on the §924(c) co nvictions, if only because the norm is to resentence on all counts when any conviction is vacated or needs a new se ntence. 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 re quires the court to craft a penalty appropriate to the of fender and all related convictions and4 No. 17

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relevant conduct. After removing the life sentences that had been mandated by §3559(c), the district judge must select new sentences for the §1 951 and §1952 convictions. T he length of tho se sentences may affect the appropriate length of the §924(c) sentenc es as well

. So this proceeding is not over. Until the judge has rese ntenced Haynes, a step that lies in the future, it is not over on any of the 1 2 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 co ntests in this court, the appeal would be prematur e. The unit of finality in federal criminal law is the indictment, not a single count of an indictment. Although the Criminal A ppeals Act, 18 U.S.C. §3731 , permits the United States to a ppeal from an order dismi ssing a single count , see United States v. Da vis , 793 F.3d 712 (7th Cir. 2015) (en banc) (discus sing how §3731 departs from ordinary rules of finality) , a d efendant normally must wait until the whole prosecution has been completed, and every count has been finally resolved, before taking an ap peal. H olman 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 fract ured. Take Haynes’s situation: a n appeal concerning the validity of three §924(c) counts may well be followed b y 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 Unit ed States assum ed that finality in proceedings under §2255 is evaluated without regard to impending resenten c-No. 17

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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 defen dant’s resentencing

. Andrews and a co defendant filed §2255 motions c o ntending that their sentences were invalid because they had not been offered an opportunity for allocution. After the di strict judge agreed, the United States appealed. The court of appeals reversed, holding that the absence of an opportunity to address t he sentencing judge was not a ground of colla teral 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 procee ding orders a resentencing, the §2255 proceeding is not over,

an d the decision is not appealable, until that resentencing has occurred

. Andrews did not entail multiple counts for each defen dant, nor did it present a situation in which a collateral attack under §2255 leads to resentencing on some counts while the validi ty of others is unaffected. But it strongly suggests that the §2255 proceeding is not over until any required rese ntencing 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 under stood it, holding that in multi count situations the final resolution must be achieved on all counts before the decision may be6 No. 17

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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 rec ognize that Ackerland v. United States , 633 F.3d 698 (8th Cir. 2011) , permitted the prosecutor to appeal in a §2255 proceeding in advance of r esentencing, but that deci sion contradicts Andrews , a case the Eighth Circuit did not mention. Indeed, the Eighth Circuit did not discuss finality at all. (It discussed wheth er t he a ppeal 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 resenten cing, 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 re sentencing on any count, the decision is not final until the new sentence has been imposed. The appeal is dismissed for want of jurisdiction.