United States v. John Kennedy, 683 F. App'x 409

Background

Kennedy manufactured/possessed a destructive device; initially sentenced to 108 months after Guidelines range of 87–108 months. He pleaded guilty to some counts and was convicted of others.
On first appeal this court vacated and remanded because the district court failed to address Kennedy’s nonfrivolous double-counting argument (prior convictions increased both base offense level and criminal history).
On remand (nearly two years later) Kennedy renewed the double-counting argument and added a Pepper-based claim for a downward variance based on postsentencing rehabilitation (programs, work, no disciplinary record, family support).
The district court resentenced Kennedy to the same 108 months, addressing only double-counting and not explaining consideration or rejection of the rehabilitation evidence; Kennedy appealed.
The panel majority vacated and remanded again, holding the remand was general (not limited) and the district court procedurally erred by failing to consider and explain its treatment of Kennedy’s postsentencing rehabilitation evidence; it also rejected Kennedy’s challenge to the § 4B1.2 "crime of violence" basis for his higher base offense level, concluding his prior machine‑gun possession qualifies under the enumerated clause (Amendment 798 treated as clarifying).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court procedurally erred by failing to consider postsentencing rehabilitation at resentencing	Kennedy: Pepper allows consideration of postsentencing rehabilitation on resentencing; this evidence warranted a downward variance and the court had to address it	Government/district court: either did not treat the remand as allowing new evidence or argued the programs were not voluntary so not entitled to weight	Court: Vacated and remanded — remand was general; district court must consider and explain treatment of postsentencing rehabilitation evidence
Scope of prior remand — limited vs general remand	Kennedy: remand allowed reconsideration of sentencing factors including new rehabilitation evidence	Government: remand limited to double-counting issue only	Court: Remand presumptively general absent explicit limitation; prior opinion did not unmistakably limit scope, so general remand applied
Whether prior conviction still qualifies as a "crime of violence" to trigger § 2K2.1(a)(3) higher base offense level after Johnson/Pawlak developments	Kennedy: residual‑clause invalidation arguments undermine the predicate and base level	Government: even without residual clause, the prior unlawful possession of a machine gun is an enumerated crime of violence	Court: Amendment 798 is clarifying and may be applied retroactively; machine‑gun possession qualifies under the enumerated clause — enhancement stands
Whether sentence was substantively unreasonable given device danger	Kennedy: device was limited in capability and posed less risk; 108 months is excessive	Government: within Guidelines presumption of reasonableness and risk justified	Court: Did not decide substantive reasonableness because procedural error (failure to address rehabilitation) required vacatur and remand

Key Cases Cited

Pepper v. United States, 562 U.S. 476 (2011) (district courts may consider postsentencing rehabilitation on resentencing)
Gall v. United States, 552 U.S. 38 (2007) (standard for abuse-of-discretion review of sentences and requirement to address procedural errors)
Beckles v. United States, 137 S. Ct. 886 (2017) (Sentencing Guidelines not subject to vagueness challenge under Due Process Clause)
United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016) (invalidated residual clause of § 4B1.2(a) in this circuit prior to Beckles)
Rita v. United States, 551 U.S. 338 (2007) (district court must provide sufficient statement of reasons to show it considered parties’ arguments)
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (record must reflect consideration of defendant’s circumstances and arguments)