[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________

No s . 12

- 12689 & 12

- 13244

________________________ D.C. Docket No s . 6:07

- cr - 00054

- JA

- GJK

- 1 & 6:07

- cr - 00073

- JA

- KRS

- 1

UNITED STATES OF AMERICA , Plaintiff

– Appell ee , versus RICKY DOUGLAS HAYNES, JR. , Defendant

– Appell ant
.

________________________ Appeal s from the United States District Court for the Middle District of Florida

_______________________ (August 22, 2014) Before WILSON, PRYOR and ROSENBAUM, Circuit Judges

. PRYOR, Circuit Judge : This appeal requires us to dec ide whether a federal prisoner who directly appeals a resentencing may raise new arguments unrelated to the errors corrected at the resentencing

. Ricky Haynes, a federal prisoner, filed a motion to vacate his sentence, 28 U.S.C. § 2255, which the district court granted in part because his

Case: 12-12689 Date Filed: 08/22/2014 Page: 1 of 132 sentence for possession of a firearm and am munition as a convicted felon, 18 U.S.C. § 922(g), exceeded the 10

- year statutory maximum , id. § 924(a)(2) . Now that he has been resentenced on that count, Haynes wants more. He asks us to

re visit an argument that he failed to raise in his direct appeal an d unsuccessfully raised in his motion to vacate

. But during the resentencing proceedings, Haynes invited the resentencing court to limit the scope of the resentencing to the counts affected by the order granting in part the motion to vacate. We will not no w vacate that new sentence for errors beyond the scope of that limited resentencing. I. BACKGROUND Haynes is currently serving three concurrent , 322

- month sentences for five counts of conviction: three counts of possessi ng with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), one count of possess ing a firearm and ammunition as a convicted felon, 18 U.S.C. § 922(g), and one count of using and carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug trafficking offense, id. § 924(c). A federal grand jury initially indicted Haynes for one count of possessi ng with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), one count of possessing a firearm an d ammunition by a convicted felon, 18 U.S.C. §§ 922(g), and one count of using and carrying a firearm, or possessing a firearm in furtherance of, a drug trafficking offense, id . § 924(c) (1)(A)

. Nearly a month later ,

Case: 12-12689 Date Filed: 08/22/2014 Page: 2 of 133 a federal grand jury indicted him for tw o counts of possession with intent to distribute crack cocaine, 21 U.S.C. § 841(a) (1) , (b)(1)(B). T he same district judge oversaw both prosecutions , but the prosecutions were never consolidated. Haynes pleaded guilty to all five counts in one hearing , a nd t he district court sentenced him on all counts at another hearing . In the earlier filed case, case no. 6:07

- cr - 000 54, the district court imposed a 322

- month sentence for each of the three counts , to be served concurrently

. Likewise, i n the later filed c ase, case no. 6:07

- cr - 000 73, the district court imposed two 322

- month sentences, one for each count, to be served concurrently with the sentence in case no. 6:07

- cr - 000 54. The district court sentenced Haynes as a career offender under the advisory Unit ed States Sentencing Guidelines

. See United States Sentencing Guidelines Manual § 4B 1 .1 (Nov. 2006) . Haynes had three qualifying prior convictions: (1) resisting arrest with violence in violation of Florida law; (2) carrying a concealed firearm in violation of Florida law; and (3) possession with intent to distribute cocaine base in violation of Florida law. Haynes failed to object to the career

offender enhancement at sentencing , b ut he did object to a statement in the presentence investigation rep ort that he qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)

. The district court overruled that objection.

Case: 12-12689 Date Filed: 08/22/2014 Page: 3 of 134 Haynes appealed his sentence. We asked appointed counsel to brief whether possessing a firearm as a conv icted felon constituted a violent felony under the Armed Career Criminal Act. Appointed counsel argued that Haynes was no longer eligible for an enhancement under the Act , but that Haynes nevertheless remained eligible for the career

- offender enhancement u nder the Guidelines . Appointed counsel then moved to withdraw his representation , and we granted that motion

. Haynes next filed a pro se motion to vacate his sentence, which raised s even arguments . Relevant to this appeal, Haynes argued that his sentenc e exceeded the statutory maximum because he was not an a rmed c areer c riminal. Haynes also argued that he was erroneously sentenced as a career offender under the Guidelines because his prior convictions were not crimes of violence. The district court granted the motion to vacate in part. The district court ruled that Haynes’s 322

- month sentence for possessing a firearm and ammunition as a convicted felon, 18 U.S.C. § 922(g), exceeded the applicable 10

- year statutory maximum, id. § 92 4(a)(2). In the same order, the district court rejected Haynes’s argument that he was not a career offender. The district court ruled that Haynes procedurally defaulted his argument that he was not a career offender because he failed to raise that argument in his direct appeal. The district court concluded that Haynes could not establish cause and prejudice to overcome that procedural default. As part of its partial grant of relief, the district court ordered that Haynes

Case: 12-12689 Date Filed: 08/22/2014 Page: 4 of 135 “be resentenced on count three of ca se 6:07

- cr - [ 000 ] 54.” The district court ordered only that count

— possession of a firearm and ammunition as a convicted felon, id. § 922(g)

— vacated

. The next day, the district court resentenced Haynes. When the resentencing court began the hearing, it call ed only case no. 6:07

- cr - 000 54. The court then stated it planned “ to take care of the business addressed in [ the ] Court’s [motion to vacate] order dated April 25, 2012,” which “require[d] resentencing because the sentence imposed in count three was illegal.” Defense counsel agreed that the court had convened resentencing for that purpose. Defense counsel also acknowl edged that “obviously” the court was “not going to touch the other case,” case no. 6:07

-
cr - 000 73, involving the two

- count indictment for possession with intent to distribute crack cocaine. D efense counsel urged the resentencing court to “restructure” the total
sentence in case no. 6:07

- cr - 00054 by modifying all three counts, but t he court questioned its j urisdiction to modify anything other than the sentence for possession of a firearm and ammunition as a convicted felon, the only sentence the
court vacat ed in its order partially granting the motion to vacate . Defense counsel persisted and asked that the court resentence count three to the statutory maximum penalty, 120 months, which c ould run concurrently with a 262

- month sentence for count one, the drug offense, and consecutively with a 60

- month sentence for count

Case: 12-12689 Date Filed: 08/22/2014 Page: 5 of 136 two , the other firearm offense . That way, the total sentence would still equal 322 months. The district court a gain doubted it could modify the sentences for the other
counts : No, I don’t think I can do that. Because the original sentence was 322 months on each of counts one, two, and three

. . . . The only thing I think I have jurisdiction to do is address counts three of that. I think the net is the same, but the structure is different. Beca use I don’t think I can go back, based on the current ruling as issued by the Court; go back and disturb counts one and two. I’ve only addressed three. The prosecutor then pointed the resentencing court to case law for the proposition that the resentencing court had the authority to adjust Haynes’s sentence for all three counts. Based on that agreement of the parties , the district court resentenced Haynes as follows: 262 months of imprisonment on count one for pos session with intent to distribute crack cocaine; 60 months of imprisonment on count two for carrying or using a firearm during and in relation to a crime of violence; and 120 months of imprisonment on count three for possessing a firearm and ammunition as a convicted felon. Haynes would serve the 262

- month and 120

- month sentences concurrently and then serve the 60

- month sentence consecutively. The total sentence remained 322 months of imprisonment, which Haynes wou ld serve concurrently with the two 322

- mont h sentences in case no. 06 :07

- cr - 00073

. After announcing the restructured sentence, the court stated that “[t]he remaining

Case: 12-12689 Date Filed: 08/22/2014 Page: 6 of 137 portions of the original judgment remain in effect” and that “the amendment only goes to th [ e ] extent just announced.” At the en d of the resentencing hearing, Haynes reasserted his objection that he was erroneously sentenced as a career offender . The resentencing court allowed him to restate his objection. Defense counsel admitted that she understood that the objection would not have any effect on the resentencing proceedings and understood that the court had already denied th at objection

. After his resentencing, Haynes applied for a certificate of appealability to contest the d enial of the other claims he raised in the motion to vacate his sentence. He asked to appeal, in part, the career

- offender enhancement. In his application, Haynes raised an altogether new argument about the career

- offender enhancement. Haynes’s newly appoi nted counsel discov e r ed that one of the prior convictions cited in the presentence investigation report was too old to count for purposes of Haynes’s criminal history score and the career

- offender enhancement. See U.S.S.G. § 4A1.2(e), (k). But a judge of t his Court denied his application , and a
two

- judge panel affirmed that denial

. W ithout a certificate of appealability , we will
not consider in this appeal his arguments about the partial denial of the motion to
vacate . 28 U.S.C. § 2253(c)(1). We decline to reconsider for a second time the denial of his application , which presents an issue that Haynes failed to raise in the district court

. See 11th Cir. R. 22

- 1(c) (“The denial of a certificate of appealability,

Case: 12-12689 Date Filed: 08/22/2014 Page: 7 of 138 whether by a single circuit judge or by a panel, may be the subject of a motion for reconsideration but may not be the subject of a petition for panel rehearing or a petition for rehearing en banc.”); s ee also Johnson v. United States , 340 F.3d 1219, 1228 n.8 (11th Cir. 2003) (“Arguments not raised in t he district court are waived.”) , aff ’ d , 544 U.S. 295, 125 S. Ct. 1571 (2005). II. STANDARD OF REVIEW When a defendant raises a sentencing argument for the first time on appeal, we review any alleged error for plain error. United States v. Bonilla , 579 F.3d 1233, 1238 (11th Cir. 2009). That standard requires an error, that is plain, which affects substantial rights, and which “ seriously affects the fairness, integrity, or public reputation of judicial proceedings. ” Id. at 1238

– 39 ( alteration and internal quotation marks omitted)

. But i f a defendant has “invited error,” that error will not be grounds for reversal on appeal. United States v. Love , 449 F.3d 1154, 1157 (11th Cir. 2006). We review for abuse of discretion the decision of a resentencing
court to limit the scope of resentencing after remand from a court of collateral review. United States v. Bryant , 246 F.3d 650, 654 (6th Cir. 2001). III. DISCUSSION In the tw o consolidated appeals, n os. 12

- 12689 and 12

- 13244, now before us, Haynes appeals his sen tences. Haynes urges us to vacate those sentences so that a resentencing court can recalculate his guideline range and resentence him without

Case: 12-12689 Date Filed: 08/22/2014 Page: 8 of 139 the career

- offender enhancement. Relatedly, Haynes also contends that the new penalties under the Fair Sentencing Act, 21 U.S.C. § 841(b)(1)(B)(iii), and an erroneous criminal history score warrant recalculating his guideline range. We decline to vacate Haynes’s sentence s . When a court of collateral review grants a federal prisoner relief, section 2255 calls for an “appropriate” remedy. 28 U.S.C. § 2255(b) (“[T]he 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.”). It was an “appropriate” remedy to vacate only the sentence exceeding the statutory maximum. And, as Haynes invited the resentencing court to do, the resentencing court exercised its discretion when it limited the resentencing hearing to correct only that issue. We will not now correct

err ors that Haynes invited the district court to ignore and that are wholly unrelated to th e error corrected during resentencing. “It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” United States v. Ross , 131 F.3d 970, 988 (11th Cir. 1997) (internal quotation marks omitted) . When a party invites an error , we are precluded from invoking plain

- error r eview to reverse that error. See United States v. Silvestri , 409 F.3d 1311, 1327 (11th Cir. 2005). For example , in United States v. Love , a defendant “repeatedly requested” the court to impose a term of impriso nment followed by a term of supervised release. 449 F.3d

Case: 12-12689 Date Filed: 08/22/2014 Page: 9 of 1310 at 1155. Then on appeal, the defendant argued that he was ineligible for supervised release and that the court should vacate the portion of his sentence requiring supervised release. Id. at 1155

– 56. Even though the defendant likely was ineligible for supervised release, we refused to vacate that part of the defendant’s sentence because he invited the error. Id. at 1157; see also United States v. Mancera

- Perez , 505 F.3d 1054, 1057 n.3, 1058 (10th Cir. 2007) (ruling that error was invited when

a defendant failed to offer any argument at sentencing for a lower sentence and agreed with the district court that the length of the sentence imposed was reasonable). Haynes asks us to vacate not only the restructured sentence, but also the two 322

- month sentences in case no. 6:07

- cr - 00073, but Haynes did not ask the resentencing court to modify those sentences . Haynes’s position now

— that the two sentences from case no. 6:07

- cr - 00073 are also in play

— is inconsistent with th e position he took at resentencing. T he resentencing court called only case no. 6:07

-
cr - 00054, and Haynes did not object

. Haynes’s counsel told the resentencing court that the parties were “here for” o nly “the first case, the 7

- 54 case” and that “obviously” the resentencing court was “not going to touch the other case.” Haynes then specifically asked the district court to modify only the sentence s in case no. 6:07

- cr - 00054. Near the end of the proceedin gs, Haynes did not object when the resentencing court stated that “[t]he remaining portions of the original judgment

Case: 12-12689 Date Filed: 08/22/2014 Page: 10 of 1311 remain in effect” and “the amendment only goes to th [ e ] extent just announced.” The resentencing court then issued a new judgment in both c ases only to reaffirm that Haynes would serve the sentences concurrently. We refuse to entertain Haynes’s argument that the resentencing court should have corrected the two sentences in case no. 6:07

- cr - 00073

— a dubious proposition given the limited scope of collateral relief

— because Haynes invited the court to limit the resentencing proceedings to case no. 6:07

- cr - 00054. At resentencing, Haynes remarked that “obviously” the resentencing court would “not . . . touch the other case.” We will not now fault t he district court for abiding by his request. See Silvestri , 409 F.3d at 1327. Haynes also invited the resentencing court to limit the resentencing to restructuring the sentences affected by the partially vacated sentence. At the resentencing, a ll parties acknowledged that they were there to correct the 322

- month sentence for possession of a firearm and ammunition as a convicted felon, 18 U.S.C. § 922(g), which exceeded the statutory maximum, id. § 924(a)(2). And defense counsel herself proposed the amended sentence lengths. To be sure, defense counsel reasserted the objection to the career

- offender enhancement at the end of the resentencing, but she expressed that she did not expect that objection to have any “effect” on the resentencing.

Case: 12-12689 Date Filed: 08/22/2014 Page: 11 of 1312 Give n this conduct at the resentencing, we will not entertain Haynes’s argument about the career

- offender enhancement. Just as the defendant in Love asked for a sentence with supervised release, 449 F.3d at 115 5

– 5 7 , Haynes asked for an amended sentence that in corporated the career

- offender enhancement. Because Haynes appeals the very sentence he invited the resentencing court to impose, we decline to review the alleged errors. We finally note that, even if Haynes h ad not invited the resentencing court to limi t its review, a resentencing court has the discretion to limit resentencing to the “appropriate” relief granted in the order to vacate , set aside, or correct the prisoner’s sentence

. 28 U.S.C. § 2255(b). Haynes’s court of collateral review ruled that the sentence imposed for his conviction for possession of a firearm and ammunition as a convicted felon was illegal. As a result, the court vacated that particular sentence and ordered resentencing. In that sa me order granting partial relief, the court denied relief to Haynes on the basis that he was erroneously sentenced as a career offender. We cannot now rule that the resentencing court abused its discretion when it did not address Haynes’s argument that he was erroneously sentenced as a career offender

— an argument th at the district court o n collateral review denied

— and instead limited the resentencing to the counts affected by the collateral

- review proceedings. See United States v. Willis , 649 F.3d 1248, 125 6 (11th Cir. 2011) (“The district court rejected [the defendant’s

Case: 12-12689 Date Filed: 08/22/2014 Page: 12 of 1313 arguments] regarding those issues and had no reason to relitigate what had, in its view, been decided without error.”); Bryant , 246 F.3d at 654 (“When a district court orders a r esentencing the court has the power to determine the appropriate scope of the resentencing .” ); United States v. Jones , 114 F.3d 896, 897 (9th Cir. 1997) (“[T]he statute[, 28 U.S.C. § 2255,] gives district judges wide berth in choosing the proper scope of post

- 2255 pro ceedings.”); United States v. Moore , 83 F.3d 1231, 1235 (10th Cir. 1996) ( “[W]here the district court itself ordered the vacation, it has the discretion to determine the scope of the resentencing.” ). IV. CONCLUSION We AFFIRM Haynes’s sentence. Case: 12-12689 Date Filed: 08/22/2014 Page: 13 of 13