United States of America v. Duane D. Worthington

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-resentencing-
under-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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