United States v. Mark Clark, 2016 U.S. App. LEXIS 4554

Clark was convicted in 1995 on five counts (including two drug counts carrying mandatory life terms and a § 924(c) gun count) and sentenced to life on counts 1 and 2; other counts received long terms; the § 924(c) sentence was ordered consecutive.
On direct appeal the Fifth Circuit affirmed all convictions and sentences except it reversed the § 924(c) conviction (count 4) and remanded for retrial on the "carry" prong; the government later moved to dismiss count 4 rather than retrying.
The district court dismissed count 4 in 1998 but did not enter an amended judgment or conduct a resentencing at that time; Clark pursued multiple collateral attacks over the years.
In 2014 Clark asked to be orally resentenced, to have counsel present, and to be allowed to raise Apprendi/Alleyne challenges; the district court instead entered an amended judgment memorializing dismissal of count 4 without an oral resentencing and denied a new hearing.
Clark appealed, arguing he was entitled to presence, counsel, and allocution at resentencing and that the reversal/remand of count 4 opened his other sentences to Apprendi/Alleyne-based challenge.

Issue	Clark's Argument	Government's Argument	Held
Whether Clark was entitled to an oral resentencing at which he was present, had counsel, and could allocute when the court entered the amended judgment deleting count 4	Clark: entry of amended judgment altered sentencing package; Rule 43 and Rule 32 required his presence and counsel; Sixth and Fifth Amendment rights implicated	Gov: court merely modified an existing sentence (deleted count 4); no new sentence imposed; Rule 43 not triggered; change not more onerous	Held: No resentencing required; deletion was a non-penal modification of an existing sentence and did not require Clark's presence or a hearing
Whether reversal/remand of count 4 allowed Clark to relitigate sentences on counts 1, 2, 3, and 5 and invoke intervening cases (Apprendi, Alleyne)	Clark: remand unbundled the sentencing package and his other sentences were open to challenge; Apprendi/Alleyne are intervening law because convictions weren’t final at the moment of those decisions	Gov: Clark's convictions and sentences on other counts were affirmed on direct appeal and became final when count 4 was dismissed; law-of-the-case bars relitigation; Apprendi/Alleyne decided after finality so not available	Held: Clark could not relitigate; law of the case barred Apprendi/Alleyne challenges because his other convictions and sentences were final before those decisions

Apprendi v. New Jersey, 530 U.S. 466 (statute-of-conviction facts that increase punishment beyond statutory maximum must be found by jury)
Alleyne v. United States, 570 U.S. 99 (any fact that increases mandatory minimum is an element and must be submitted to jury)
United States v. Patterson, 42 F.3d 246 (5th Cir. 1994) (distinguishes sentence modification from resentencing; presence not required for mere modification)
United States v. Moree, 928 F.2d 654 (5th Cir. 1991) (defendant’s presence required for resentencing but not for non-onerous sentence modification)
United States v. Erwin, 277 F.3d 727 (5th Cir. 2001) (amended judgment deleting reversed conviction was a non-resentencing modification)
United States v. Pineda, 988 F.2d 22 (5th Cir. 1993) (correction of illegal sentence under Rule 35(a) need not be a resentencing if the package was not set aside)
Griffith v. Kentucky, 479 U.S. 314 (rule of retroactivity: new rule applies to cases not yet final)