UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > Nos. 21-1503/1519 │ v. │ │ NATHANIEL PEMBROOK (21-1503); ORLANDO JOHNSON │ (21-1519), │ Defendants-Appellants. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:14-cr-20525—Laurie J. Michelson, District Judge.

Decided and Filed: August 21, 2023

Before: BATCHELDER, GIBBONS, and NALBANDIAN, Circuit Judges.

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COUNSEL ON BRIEF: Benton C. Martin, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant in 21-1503. Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant in 21-1519. Erin S. Shaw, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

BATCHELDER, J., delivered the opinion of the court in which NALBANDIAN, J., joined. GIBBONS, J. (pp. 22–27), delivered a separate dissenting opinion.

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OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. In this consolidated appeal, which follows a remand for resentencing, two convicted bank robbers challenge the district court’s decision to Nos. 21-1503/1519 United States v. Pembrook, et al. Page 2

redo the guidelines calculations and sentencing proceedings entirely, and to apply a new sentencing enhancement that was not considered or applied in their original sentencing. We affirm.

I.

Nathaniel Pembrook, Orlando Johnson, and two other men robbed two jewelry stores at gunpoint. A jury convicted each of them of Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), possession of a firearm by a felon, § 922(g), and two counts of brandishing a firearm during and in relation to a crime of violence, § 924(c). The two § 924(c) counts carried a combined 32-year additional mandatory-minimum prison sentence: seven years for the first count and an additional “stacked” 25 years for the second. At sentencing, the district court calculated a guidelines range for the robbery, conspiracy, and felon-in-possession counts of 78-to-97 months for Pembrook and 92-to-115 months for Johnson, but due to the additional 32-year mandatory minimum, granted a downward variance and sentenced each defendant to 33 years: one year each for the first three counts, to run concurrently, plus the mandatory 32 years for the § 924(c) convictions.

The defendants appealed and we affirmed. United States v. Pembrook, 876 F.3d 812 (6th Cir. 2017). In that appeal, they argued that 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague, so the § 924(c) minimum sentences did not apply and resentencing was necessary. We rejected their argument based on then-binding Sixth Circuit precedent, but acknowledged that resentencing would be warranted if they were correct. Pembrook, 876 F.3d at 831-32.

When the Supreme Court remanded in light of United States v. Davis, 139 S. Ct. 2319 (2019), which held that § 924(c)(3)(B) was unconstitutionally vague, we