Post-Taylor Resentencing Permits Reapplication of Firearm Enhancements; Reasonable-Suspicion Electronic-Search Conditions Sustained on Plain-Error Review

Introduction

This commentary analyzes the Sixth Circuit’s unpublished opinion in United States v. Gholston (No. 24-5059, Dec. 4, 2024), affirming a resentencing and a supervised-release search condition following partial collateral relief under 28 U.S.C. § 2255. The case sits at the intersection of post-Taylor resentencing doctrine, substantive reasonableness review of upward variances, and the standards governing special conditions of supervised release—particularly search conditions that encompass electronic devices.

Background: In 2008–2009, Ricky Gholston and an accomplice robbed two Dollar General stores; during the second incident, Gholston pointed a loaded .32-caliber revolver at a manager and pulled the trigger, but the gun misfired. He pleaded guilty in 2009 to two Hobbs Act robbery counts (one completed, one attempted) and two 18 U.S.C. § 924(c) counts for using a firearm during crimes of violence. In 2011, he received a 432-month sentence driven in part by § 924(c)’s mandatory minimum scheme.

Key legal development: In 2022, the Supreme Court held that attempted Hobbs Act robbery is not a “crime of violence” under § 924(c). See United States v. Taylor, 596 U.S. 845 (2022). On § 2255 review, the district court vacated Gholston’s § 924(c) conviction tied to the attempted robbery. That vacatur, however, removed the double-counting bar that had previously prevented a firearm-specific increase on the underlying attempted-robbery guideline count. The district court resentenced Gholston, recalculated the Guideline range to include the firearm enhancement on the attempted-robbery count, and imposed an upward variance to 276 months (42 months above the revised high end). The court also imposed a supervised-release condition permitting searches of Gholston’s property—including electronics—upon reasonable suspicion of a violation.

Issues on appeal:

Whether the district court erred by choosing the “resentence” remedy (rather than a mechanical correction) after vacating one § 924(c) count under Taylor;
Whether the 42-month upward variance was substantively unreasonable;
Whether the electronic search condition on supervised release was plainly erroneous where the court did not orally articulate reasons at sentencing.

Summary of the Opinion

The Sixth Circuit (Judge Julia Smith Gibbons, joined by Judges Boggs and Nalbandian) affirmed in all respects:

Resentencing remedy: No plain error. With the § 924(c) count vacated, the underlying attempted-robbery count required a guideline recalculation to apply the firearm enhancement that had previously been blocked by anti-double-counting principles.
Upward variance: No abuse of discretion. The district court reasonably weighed the severity of the conduct (including pulling the trigger at a store manager), Gholston’s criminal history, institutional disciplinary violations, lack of acceptance of responsibility, and the needs for deterrence and public protection.
Supervised-release condition: No plain error. Although the court did not orally explain the electronic-search condition, the record made the rationale clear—close supervision was warranted by Gholston’s history and risk of reoffending—satisfying § 3583(d) under controlling Sixth Circuit doctrine that treats inadequate on-the-record explanation as harmless when the reasons are otherwise apparent.

Analysis

Precedents Cited and Their Influence

Post-§ 2255 remedial scope: Ajan v. United States, 731 F.3d 629 (6th Cir. 2013), gives district courts “wide berth” to select among § 2255(b)’s remedies—discharge, resentencing, new trial, or correction—based on what is “appropriate.” The panel used this to frame the district court’s choice to conduct a resentencing rather than a mere correction.
When resentencing (not just “correction”) is required: United States v. Flack, 941 F.3d 238 (6th Cir. 2019) (mechanical corrections are for cases where nothing else changes), and United States v. Augustin, 16 F.4th 227 (6th Cir. 2021) (new guideline calculations warrant resentencing), support the conclusion that, once the § 924(c) count fell out, a new guideline calculation was necessary and resentencing was proper.
Removing the § 924(c) count removes the double-counting bar: United States v. Duke, 870 F.3d 397 (6th Cir. 2017), explains that applying both a § 924(c) conviction and a firearm enhancement to the same underlying conduct is impermissible double counting. Once the § 924(c) count is vacated, the enhancement can be applied to the underlying count without double counting.
Common post-vacatur pattern: Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997), recognizes the routine practice of resentencing on remaining counts with appropriate enhancements after a § 924(c) vacatur. The panel also cites United States v. Meredith-Hill, 2024 WL 509611 (6th Cir. Feb. 9, 2024), as a post-Taylor example where a firearm-related increase was applied at resentencing after a § 924(c) count fell away.
Standards of review: United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc) and United States v. Gardiner, 463 F.3d 445 (6th Cir. 2006) underscore the rigor of plain-error review. For the upward variance, Gall v. United States, 552 U.S. 38 (2007), and United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009) frame the abuse-of-discretion standard. United States v. Thomas, 933 F.3d 605 (6th Cir. 2019) emphasizes the “high bar” to overturn upward variances.
Substantive reasonableness factors: Rita v. United States, 551 U.S. 338 (2007) and United States v. Vowell, 516 F.3d 503 (6th Cir. 2008) address presumptions for within-guidelines sentences (not applicable here). United States v. Milliron, 984 F.3d 1188 (6th Cir. 2021) stresses deference to district courts’ § 3553(a) balancing. United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018), United States v. Wright, 991 F.3d 717 (6th Cir. 2021), United States v. Mathews, 846 F. App’x 362 (6th Cir. 2021), and United States v. Ruffin, 978 F.3d 1000 (6th Cir. 2020) illustrate permissible reliance on history, characteristics, risk to the public, remorse, and disciplinary history in varying upward.
Scope of information at sentencing: United States v. Graham-Wright, 715 F.3d 598 (6th Cir. 2013) and Pepper v. United States, 562 U.S. 476 (2011) support the broad range of information that may inform sentencing. The court relied on this breadth to approve consideration of Gholston’s pulling the trigger at a person during the attempted robbery.
Credibility determinations: United States v. Ivy, 165 F.3d 397 (6th Cir. 1998) accords “considerable weight” to district courts’ credibility findings—a key point when Gholston continued to deny intent to harm despite his sworn statements and state guilty plea to attempted murder.
Supervised-release conditions: Mont v. United States, 587 U.S. 514 (2019) describes supervised release as conditional liberty. 18 U.S.C. § 3583(d) supplies the three-part statutory test (reasonable relation to sentencing factors; no greater deprivation than necessary; consistency with Sentencing Commission policy). United States v. Carter, 463 F.3d 526 (6th Cir. 2006) requires the court to state reasons for special conditions, but United States v. Booker, 994 F.3d 591 (6th Cir. 2021) allows inadequately explained conditions to stand if the record makes the rationale clear. United States v. Kingsley, 241 F.3d 828 (6th Cir. 2001) and United States v. Childress, 874 F.3d 523 (6th Cir. 2017) confirm that special conditions need not be tied to the specific offense; they can instead address the defendant’s history and characteristics. United States v. Mays, 558 F. App’x 583 (6th Cir. 2014) and United States v. Dominguez Benitez, 542 U.S. 74 (2004) reinforce the demanding nature of plain-error review on appeal.

Legal Reasoning

1) Resentencing after Taylor-based vacatur

The court held there was no plain error in the district court’s selection of the “resentence” remedy under § 2255(b). Vacating the § 924(c) count required a fresh guideline calculation because the firearm-related specific offense characteristic on the underlying attempted robbery (Count Three) had been omitted originally to avoid impermissible double counting. Once the § 924(c) count fell away under Taylor, the district court could lawfully apply the six-level firearm increase to the robbery guideline at resentencing. This was neither novel nor controversial; Sixth Circuit cases recognize and routinely approve that sequence.

2) Substantive reasonableness of the 42-month upward variance

Applying abuse-of-discretion review, the court affirmed the upward variance. The district court permissibly weighed:

the serious nature of the offense conduct—Gholston pointed a gun at a store manager and pulled the trigger, an action consistent with attempted killing that fortunately failed due to a misfire;
his criminal history and demonstrated resistance to authority, including numerous prison disciplinary violations;
his lack of acceptance of responsibility and credibility issues at sentencing; and
the § 3553(a) goals of general and specific deterrence and protection of the public.

The appellate court emphasized (1) the broad scope of information a sentencing judge may consider, (2) the deference owed to credibility findings, and (3) the “high bar” for overturning upward variances. Even without the within-Guidelines presumption, the totality of the circumstances supported the variance.

3) Electronic-search condition of supervised release

Although the district court did not orally justify the electronic-search condition at sentencing, reversal was unwarranted under plain-error review. The panel reiterated that a district court must state reasons for special conditions (Carter), but any inadequacy is harmless where the record shows a clear, permissible rationale (Booker). Here, the record showed that Gholston presented a high risk of reoffending and required close supervision.

Importantly, § 3583(d) does not demand that a special condition be offense-specific. Consistent with Kingsley and Childress, a condition may be tailored to the defendant’s history and characteristics and the need to protect the public. The condition here was further cabined by a “reasonable suspicion” threshold and applied to “property, including electronics,” limiting its use to circumstances where officers have articulable reasons to suspect a violation. On that record, the panel found no clear or obvious error, no effect on substantial rights, and no impact on the fairness or integrity of the proceedings.

Impact

Resentencing after Taylor remains robust: Defendants who secure vacatur of § 924(c) convictions tied to attempted Hobbs Act robbery should anticipate full resentencings when the original guideline calculations are affected. Where the § 924(c) count suppressed a firearm enhancement on the underlying count, courts will reapply that enhancement at resentencing without running afoul of double-counting rules.
Upward variances anchored in egregious facts will stand: When the record contains serious aggravating facts (e.g., pulling a trigger at a person), criminal history, institutional misconduct, and weak acceptance of responsibility, appellate courts will generally defer to an upward variance, even of significant magnitude, provided the district court ties its reasoning to § 3553(a).
Supervised-release conditions and technology: Electronic-search conditions imposed with a reasonable-suspicion threshold can survive appellate scrutiny even if not tethered to the exact offense conduct, so long as the defendant’s history and risk profile justify close monitoring and the record explains why. That said, district courts are best served by making contemporaneous, individualized findings to forestall challenges.
Preservation matters: Failure to object to resentencing scope or special conditions at sentencing invites plain-error review, which is exceptionally difficult for defendants to overcome. Timely objections preserve de novo or ordinary review and significantly enhance the prospect of relief.

Complex Concepts Simplified

Hobbs Act robbery vs. attempted robbery: Hobbs Act robbery (18 U.S.C. § 1951) prohibits actual or threatened force to obtain property affecting interstate commerce. “Attempted” robbery is trying but failing to commit robbery.
“Crime of violence” under § 924(c): § 924(c) punishes using a firearm during a “crime of violence.” After Taylor (2022), attempted Hobbs Act robbery no longer qualifies, which invalidates § 924(c) convictions premised on attempted robbery.
Double counting: Sentencing law generally bars “counting” the same firearm conduct twice—once through a § 924(c) conviction and again as a specific offense characteristic on the underlying count. If § 924(c) is vacated, applying the firearm enhancement on the underlying count no longer double counts.
Guidelines range and upward variance: The U.S. Sentencing Guidelines produce an advisory range. A court may “vary” upward or downward based on the statutory factors in § 3553(a), with reasons stated on the record. Appellate review asks whether the variance was substantively reasonable.
Plain-error review: If a defendant fails to object, he must show a clear or obvious error that affected substantial rights and seriously affected the fairness, integrity, or public reputation of the proceedings. This is a demanding standard.
Special conditions of supervised release: Under § 3583(d), a special condition must be reasonably related to sentencing goals, involve no greater deprivation of liberty than necessary, and align with Sentencing Commission policy. It need not be tied to the offense of conviction; a defendant’s history and risk may justify it.
Reasonable suspicion-based search condition: A condition authorizing searches of a defendant’s property (including electronic devices), upon reasonable suspicion of a violation, is narrower than suspicionless searches and is often upheld where a defendant’s history indicates heightened monitoring is warranted.

Conclusion

United States v. Gholston reinforces three important points in the post-Taylor landscape:

District courts possess broad authority under § 2255(b) to resentence when vacatur of a § 924(c) count necessitates a new guideline calculation—including reapplication of firearm-specific enhancements to the surviving counts that were previously suppressed to avoid double counting.
Upward variances remain durable on appeal when grounded in concrete aggravating facts, the defendant’s history, and the § 3553(a) purposes of sentencing, especially under the deferential abuse-of-discretion standard.
Special conditions of supervised release—here, a reasonable-suspicion search condition encompassing electronic devices—may be sustained on plain-error review even without an oral explanation if the record makes the rationale clear and the condition is reasonably related, not overly intrusive, and consistent with policy.

Although not recommended for publication, the decision is a practical roadmap for post-Taylor resentencings and a reminder that preservation of objections is critical. For practitioners, the case underscores the importance of developing a thorough resentencing record and obtaining explicit, individualized explanations for special conditions—both to withstand appellate scrutiny and to ensure that the conditions are properly tailored to the defendant’s circumstances and the goals of supervised release.