United States of America v. Rickey Claybron

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2665
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
R ICKEY C LAYBRON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:16-cr-50030-1 — Iain D. Johnston, Judge.
____________________
A RGUED NOVEMBER 28, 2023 — DECIDED D ECEMBER 19, 2023
____________________
Before EASTERBROOK , HAMILTON, and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. At sentencing, Rickey Claybron’s
criminal history category included two “status points” for
committing Hobbs Act robberies while on parole for a previ-
ous crime. Months later, the United States Sentencing Com-
mission proposed and enacted a retroactive amendment,
changing how status points are applied. Had that amendment
been in effect at his sentencing, Claybron’s criminal history

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2 No. 22-2665
score would have been one point lower, enough to lower his
criminal history category and resulting Guidelines range.
Claybron appeals and seeks (1) a remand to reconsider the
sentence imposed for his Hobbs Act robbery convictions, and
(2) reversal of his firearm-related convictions under 18 U.S.C.
§ 924(c). We affirm Claybron’s firearm-related convictions
and sentences. But because of the post-sentencing, retroactive
change to the Guidelines, we order the remand Claybron re-
quests.
I
Rickey Claybron committed several violent robberies over
a three-week period in October and November 2015. During
these robberies, he and his co-conspirators brandished fire-
arms, assaulted civilians, and shot a store clerk. A grand jury
indicted Claybron on nine counts: one for conspiracy to com-
mit Hobbs Act robbery, three for Hobbs Act robbery, one for
attempted Hobbs Act robbery, and four firearm-related
counts in connection with the robbery counts. A jury con-
victed him on all counts in January 2022.
The government moved to continue Claybron’s sentenc-
ing hearing while the Supreme Court considered whether at-
tempted Hobbs Act robbery constituted a crime of violence in
United States v. Taylor, 142 S. Ct. 2015 (2022). The district court
granted the unopposed motion.
Following the holding in Taylor that attempted Hobbs Act
robbery was not a crime of violence, id. at 2020, the district
court reset Claybron’s sentencing and ordered an amended
presentence report. The revised PSR calculated Claybron’s to-
tal offense level at 30 for the robbery counts. Claybron was
assigned a criminal history score of 13: an initial score of 11,

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No. 22-2665 3
plus two status points for committing the instant offenses
while under a criminal justice sentence. The two status points
were assigned pursuant to § 4A1.1(d) of the then-applicable
2021 Sentencing Guidelines. This score placed him in criminal
history category VI. With a total offense level of 30 and a crim-
inal history category of VI, Claybron’s Guidelines range for
the Hobbs Act robbery counts was 168 to 210 months’ impris-
onment. On the remaining three firearm-related counts, the
Guidelines ranges were 84 months’ imprisonment, 120
months’ imprisonment, and 120 months’ imprisonment, re-
spectively, to be served consecutively to the sentence imposed
on the Hobbs Act robbery counts.1
At sentencing in September 2022, neither party objected to
the PSR’s statement of facts or its Guidelines calculations, and
the district court adopted the PSR in full. Considering the fac-
tors under 18 U.S.C. § 3553(a), the court determined that a sen-
tence at the bottom of the Guidelines range was appropriate.
Claybron was sentenced to 168 months’ imprisonment on the
Hobbs Act robbery counts, to run consecutive to the statutory
minimum sentences on the firearm-related counts, for a total
of 41 years’ imprisonment, with three years of supervised re-
lease. The district court did not state that it would impose the
same sentence regardless of the applicable Guidelines range
1 Claybron’s attempted Hobbs Act robbery charge in Count Six was
the crime of violence underpinning one of the four firearm-related counts,
Count Seven. After Taylor, 142 S. Ct. at 2020, attempted Hobbs Act robbery
does not constitute a crime of violence. So, Claybron’s Guidelines range
required recalculation. The government dismissed Count Seven and in-
corporated its elements as an enhancement to Count Six pursuant to
§ 2B3.1(b)(2)(B) of the 2021 Guidelines.

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4 No. 22-2665
or regardless of any error in calculating that range.2 Claybron
timely appealed.
In April 2023—after Claybron’s sentencing and after he
filed his appeal—the Sentencing Commission submitted
amendments to the Guidelines for Congressional approval,
two of which are relevant here. First, the Commission
amended Guidelines § 4A1.1(d). U.S. SENT ’ G G UIDELINES
MANUAL A MEND. 821 (U.S. SENT ’ G C OMM’ N 2023). Pursuant to
Amendment 821, district courts could no longer add two
additional criminal history points when the offense of convic-
tion was committed by the defendant while under any crimi-
nal justice sentence. Id. Instead, a defendant would receive
only one additional point “if the defendant (1) receives 7 or
more points … and (2) committed the instant offense while
under any criminal justice sentence … including … parole.”
Id.
Second, the Commission proposed Amendment 825 to
make Amendment 821 retroactive. Id. at A MEND. 825. Amend-
ment 825 instructs that courts “shall not order a reduced term
of imprisonment based on … Amendment 821 unless the ef-
fective date of the court’s order is February 1, 2024, or later.”
Id. The accompanying application note “does not preclude the
court from conducting sentence reduction proceedings and
entering orders under 18 U.S.C. § 3582(c)(2) and this policy
2 See United States v. Caraway, 74 F.4th 466, 468 (7th Cir. 2023) (noting
the “inoculating” effect on appellate review of sentencing decisions where
district court provides a detailed, unambiguous statement that the same
sentence would apply regardless of the applicable Guidelines range or any
error); United States v. Tate, 822 F.3d 370, 377 (7th Cir. 2016).

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No. 22-2665 5
statement before February 1, 2024” so long as they do not have
an effective date of February 1, 2024, or later. Id.
Congress did not modify or change the amendments, so
both went into effect on November 1, 2023. Id. at §§ 1B1.10 (d)–
(e), 4A1.1(e).3
II
Claybron makes two sentencing-related arguments on ap-
peal. First, he asks us to reverse his firearm-related convic-
tions, contending that Hobbs Act robbery does not qualify as
a predicate crime of violence under 18 U.S.C. § 924(c). Second,
he asks us to order a remand for resentencing on the Hobbs
Act robbery counts because of these recent, retroactive Guide-
lines amendments.
We review de novo whether a prior conviction qualifies as
a crime of violence. United States v. McHaney, 1 F.4th 489, 491
(7th Cir. 2021). Generally, where a defendant fails to raise an
argument before the district court, we review the district
court’s decision for plain error. United States v. Harris, 51 F.4th
705, 711 (7th Cir. 2022). “To succeed under plain-error review,
the defendant[] must show that (1) the error complained of
actually occurred; (2) the error was clear or obvious; (3) the
error affected [his] substantial rights …; and (4) the error seri-
ously impugned the judicial proceeding’s fairness, integrity,
or public reputation.” Id. at 711–12 (internal marks omitted).
We can dispatch Claybron’s first argument swiftly: Hobbs
Act robbery constitutes a crime of violence under § 924(c).
United States v. Worthen, 60 F.4th 1066, 1069 (7th Cir. 2023);
3 Amendment 821 moves the new instructions regarding status points
to subsection (e) in § 4A1.1.

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6 No. 22-2665
McHaney, 1 F.4th at 490 (7th Cir. 2021); United States v. Rivera,
847 F.3d 847, 849 (7th Cir. 2017); United States v. Anglin, 846
F.3d 954, 965 (7th Cir. 2017). Claybron offers no convincing
arguments to the contrary, so we affirm his § 924(c) convic-
tions.
As to his second argument, applying the retroactive and
effective Amendment 821, Claybron’s criminal history score
would have been twelve points, not thirteen, reducing his
criminal history category on the robbery counts from VI to V.
A total offense level of 30 and a criminal history category of V
yields a Guidelines range of 151 to 188 months’ imprison-
ment, which is lower than the applied range of 168 to 210
months’ imprisonment. Because Amendment 821’s applica-
tion reduces his Guidelines range, and the Amendment is ret-
roactive, Claybron urges us to remand the Hobbs Act robbery
counts for the district court’s reconsideration, using 28 U.S.C.
§ 2106 as our vehicle. The government disagrees.
Claybron persuades us that remand is appropriate. Title
28 U.S.C. § 2106 states:
The Supreme Court or any other court of appel-
late jurisdiction may affirm, modify, vacate, set
aside or reverse any judgment … of a court law-
fully brought before it for review and may re-
mand the cause and direct the entry of such ap-
propriate judgment, decree, or order, or require
such further proceedings to be had as may be
just under the circumstances.
This statute authorizes limited or general remands for resen-
tencing. United States v. Adams, 746 F.3d 734, 744 & n.4 (7th
Cir. 2014) (citing United States v. Young, 66 F.3d 830, 835 (7th

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No. 22-2665 7
Cir. 1995)). This court has remanded cases for limited resen-
tencing under this authority. See United States v. Taylor, 628
F.3d 420, 425 (7th Cir. 2010) (granting limited remand for the
district court to exercise its discretion as to the consecutive or
concurrent treatment of defendant’s sentences where district
court improperly treated U.S.S.G. § 7B1.3(f) as mandating
consecutive sentences). Section 2106 has also been used to or-
der remand when the district court committed no error, albeit
in a civil proceeding. See Bell v. McAdory, 820 F.3d 880, 884 (7th
Cir. 2016) (remanding 42 U.S.C. § 1983 case to district court
with instructions to treat pro se motion as a request for an ex-
tension of time to appeal under FED. R. A PP. P. 4(a)(5) instead
of a FED. R. C IV. P. 60 Motion for Relief from Judgment).
Indeed, in similar circumstances this court has advised
that a remand would be appropriate. United States v. Alexan-
der, 553 F.3d 591 (7th Cir. 2009). There, the district court sen-
tenced Alexander as a career offender at the bottom of a
Guidelines range of 151 to 189 months’ imprisonment. Id.
Guidelines Amendment 709—requiring district courts to
count prior sentences separately unless imposed on the same
day for purposes of criminal history calculations—was pend-
ing at the time of sentencing. Id. If Amendment 709 had been
effective at sentencing, the applicable Guidelines range would
have been substantially lower: 63 to 78 months’ imprison-
ment. Id. Alexander argued that “since [Amendment 709] was
pending when he was sentenced, the judge should have con-
sidered it in deciding what sentence to impose,” requiring re-
mand for resentencing. Id. at 592.
Rejecting the opportunity to remand, this court recog-
nized that agreement with Alexander would “require that, in
preparation for sentencing, the judge canvass all the possible

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8 No. 22-2665
sources of information or opinion or insight or advice that
might influence him in deciding how severe a sentence to im-
pose.” Id. Moreover, his position would entitle a defendant to
resentencing whenever “his lawyer discovered a source of en-
lightenment that the judge had somehow overlooked.” Id.
However, two scenarios might change the calculus. First,
“[w]e would have a different case if the Sentencing Commis-
sion had, as it could have done but did not do, made the
amendment retroactive.” Id. “Then, unless it was apparent
from the sentencing hearing that the judge would have im-
posed the same sentence even if the amendment had been in
force, we would remand the case for the judge to decide
whether to impose a different sentence in light of the new
amendment.” Id. Second, Alexander’s case would have been
“slightly more appealing” had he “been sentenced before
Amendment 709 [was] proposed.” Id. at 593 (citing United
States v. Godin, 522 F.3d 133 (1st Cir. 2008) (per curiam).
Both scenarios apply to Claybron. The Commission made
Amendment 821 retroactive through Amendment 825. The
district court sentenced him before Amendment 821 was pro-
posed. Both amendments are now effective. And nothing in
the record indicates the district court would have imposed the
same 168-month sentence regardless of the applicable Guide-
lines range. Given the lower Guidelines range for the robbery
counts if Amendment 821 had been in effect at sentencing,
and our discretionary authority under 28 U.S.C. § 2106, re-
mand for resentencing is proper here.
The government argues we should decline to exercise our
discretion under § 2106 and, instead, wait for Claybron to file
a motion under 18 U.S.C. § 3582. That statute provides that a
defendant can seek a reduction of a previously-imposed

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No. 22-2665 9
sentence when the Commission later lowers the applicable
Guidelines range. See 18 U.S.C. § 3582(c)(2). This statute, the
government submits, provides the appropriate vehicle for the
relief Claybron seeks. To the government, a remand under
§ 2106 requires us to rule that the district court plainly erred
in imposing sentence, which would entitle Claybron to a full
resentencing on the robbery counts.
The district court did not plainly err. A sentencing court
should ordinarily calculate the Guidelines range under the
Guidelines “in effect on the date the defendant is sentenced.”
18 U.S.C. § 3553(a)(4)(A)(ii); see also U.S.S.G. § 1B1.11(a) (U.S.
SENT ’ G C OMM’ N 2021) (“The court shall use the Guidelines
Manual in effect on the date that the defendant is sentenced”);
United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008) (noting
the command of 18 U.S.C. § 3553(a)(4)(A)(ii) and U.S.S.G.
§ 1B1.11(a)). The complained-of error did not actually occur.
The district court sentenced Claybron more than six months
before the Commission proposed Amendment 821. Even if
the Commission had proposed Amendment 821 before
Claybron’s sentencing, federal statutes and the Guidelines re-
quire the district court to consider only those Guidelines in
effect on the date of sentencing. Moreover, the failure to apply
Amendment 821 did not affect Claybron’s substantial rights
or impugn the fairness, integrity, or public reputation of his
sentencing, because federal law foreclosed its application.
We agree that § 3582(c)(2) is available to Claybron as a
path for him to seek relief. But here, we see no difference be-
tween that statute and § 2106. Amendment 821 is retroactive,
and the district court did not state it would have imposed the
same sentence regardless of the applicable Guidelines range.
So, the same relief would be available to Claybron on either

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10 No. 22-2665
statutory path. And there is no reason why remand under
§ 2106 is unjust or imprudent, particularly where it promotes
judicial economy.
Additionally, § 2106 gives this court discretion to remand
a cause and “require such further proceedings to be had as
may be just under the circumstances.” Remand under that
statute is not limited to when the district court errs or when a
full resentencing is needed. Again, the district court did not
plainly err. We hold that the post-sentencing proposal and
enactment of retroactive Amendment 821 warrants a § 2106
remand and limited resentencing on Claybron’s Hobbs Act
robbery convictions.
On remand, the district court can reassess Claybron’s sen-
tence considering the Amendment’s effect on his Guidelines
range and the 18 U.S.C. § 3553(a) factors. Because “we have
no way of knowing … whether a different guideline range
would have prompted the district court to weigh the [18
U.S.C.] § 3553 factors differently … the district court may, if it
believes it appropriate, allow new arguments and a new hear-
ing on the § 3553 factors.” Adams, 746 F.3d at 745 (emphasis in
original).
III
For these reasons, we A FFIRM Claybron’s convictions and
sentences under 18 U.S.C. § 924(c). We VACATE the sentence
imposed on his convictions for the Hobbs Act robbery counts
only, and R EMAND for resentencing in light of Amendments
821 and 825.

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