Kent Clark v. United States, 76 F.4th 206

In 1985 Clark committed multiple violent offenses (including kidnapping and a § 924(c) firearms offense) and was convicted at trial; the kidnapping count carried a life sentence and the § 924(c) count a mandatory consecutive five-year term.
Clark’s offenses predated the Sentencing Guidelines; the life sentence for kidnapping ran concurrent to other counts, with the § 924(c) term consecutive.
After the Supreme Court’s decision in United States v. Davis (2019) invalidated part of § 924(c)’s definition of “crime of violence,” Clark obtained leave to file a successive § 2255 motion challenging his § 924(c) conviction.
The district court agreed kidnapping no longer qualified as a predicate under Davis, vacated Clark’s § 924(c) conviction and its five-year consecutive term, but declined to hold a full resentencing on the remaining counts. The court left the life sentence intact, concluding vacatur did not affect other sentences.
Clark appealed, arguing this was a direct appeal from a new sentence (no COA required). The government contended the appeal attacks the district court’s choice of remedy in a § 2255 proceeding and therefore requires a certificate of appealability (COA). The Third Circuit held a COA is required and denied one because Clark failed to make a substantial showing of the denial of a constitutional right, dismissing the appeal for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a COA is required to appeal a district court’s choice of remedy after § 2255 relief	Clark: This is a direct appeal from a new criminal sentence; no COA needed	Gov: This is an appeal from the final order in a § 2255 proceeding; § 2253(c) requires a COA	COA required to appeal the district court’s choice of remedy in a § 2255 proceeding
Whether the district court erred by denying a full resentencing (including due-process/right-to-be-present claims)	Clark: Court abused discretion; he had a right to be present at a full resentencing and collateral consequences (parole) warranted resentencing	Gov: Vacatur of § 924(c) did not change guidelines/offense level; resentencing was not required and court acted within its discretion	No abuse of discretion; no due-process violation; COA not warranted (appeal dismissed)

United States v. Davis, 139 S. Ct. 2319 (2019) (Supreme Court invalidating part of § 924(c)’s "crime of violence" definition)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA standard: substantial showing of denial of a constitutional right)
United States v. Cody, 998 F.3d 912 (11th Cir. 2021) (holding COA required when defendant appeals district court’s choice to correct rather than resentence after § 2255 relief)
United States v. Hadden, 475 F.3d 652 (4th Cir. 2007) (contrary view: challenge to appropriateness of § 2255 relief may be appealed without COA)
United States v. Williams, 158 F.3d 736 (3d Cir. 1998) (discussing appealability of modified sentences after § 2255 relief)
United States v. Mannino, 212 F.3d 835 (3d Cir. 2000) (defendant’s right to be present at sentencing/resentencing)