                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUL 17 1998
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,

 v.                                                        No. 97-3314
                                                            (D. Kan.)
 DONALD KENARD DAVIS,                               (D.Ct. No. 96-3042-DES)

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      Mr. Donald Davis was found guilty of five drug-related counts, including


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
two counts under 18 U.S.C. § 924(c) for use of a firearm in a drug trafficking

crime. He was sentenced to 240 months imprisonment, partly comprised of 120

months for the § 924(c) convictions. He subsequently filed a 28 U.S.C. § 2255

motion seeking to set aside his § 924(c) convictions in light of the United States

Supreme Court’s ruling in Bailey v. United States, 516 U.S. 137, 150 (1995)

(clarifying the term “use” of a firearm for purposes of § 924(c)). The

Government filed a response, claiming the § 924(c) convictions should stand in

spite of Bailey. In its response, the Government did not expressly request the

court to resentence Mr. Davis if it granted his § 2255 motion. The district court

granted Mr. Davis’ § 2255 motion, vacating his § 924(c) convictions. United

States v. Davis, 924 F. Supp. 1082 (D. Kan. 1996). The district court’s order,

however, did not address the effect of its ruling on Mr. Davis’ sentence. Id. at

1084. Six days later, the Government filed a motion to resentence Mr. Davis to

reflect the firearms sentence enhancement under United States Sentencing

Guidelines § 2D1.1(b)(1). The court denied the Government’s motion,

concluding it did not have jurisdiction to modify a previously imposed sentenced.

The Government appeals, and we reverse.




      The Government claims the district court retained jurisdiction to resentence


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Mr. Davis after it vacated his firearms convictions. We review the district court’s

determination as to its jurisdiction to resentence de novo. United States v.

Mendoza, 118 F.3d 707, 709 (10th Cir.), cert. denied, 118 S. Ct. 393 (1997). A

district court may modify a defendant’s sentence only when Congress has

expressly granted the court jurisdiction to do so. United States v. Blackwell, 81

F.3d 945, 947 (10th Cir. 1996), rev’d on other grounds, 127 F.3d 947 (10th Cir.

1997).



         The Government claims the district court retained jurisdiction under 28

U.S.C. § 2255 to resentence Mr. Davis. Section 2255 states, in part, if the court

finds the defendant entitled to relief under the statute, then “the court shall vacate

and set the judgment aside and shall discharge the prisoner or resentence him or

grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C.

§ 2255 (emphasis added). We agree with the Government that the clear language

of the statute confers jurisdiction on the district court to discharge the prisoner,

grant a new trial, resentence or correct the sentence as appropriate, after vacating

a judgment and conviction pursuant to § 2255. See United States v. Walker, 118

F.3d 559, 561 (7th Cir. 1997) (ruling a court has a reasonable amount of time to

resentence following its vacation of a conviction). Indeed, continuing jurisdiction

under § 2255 to discharge a prisoner, order a new trial, resentence or correct a


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sentence is necessary since once a court determines § 2255 relief from a § 924(c)

conviction is appropriate, it must then “set aside the judgment, which

encompasse[s] both convictions and sentences.” Mendoza, 118 F.3d at 709.



      Further, we believe Mr. Davis had no legitimate expectation of finality

since it is well established “a defendant who mounts a successful collateral attack

on a single count of conviction faces the risk that the district court will look anew

at the entire punishment and resentence on the remaining count[s].” Walker, 118

F.3d at 561 (citations omitted). It is appropriate for the district court to

resentence a defendant on remaining convictions that are interdependent with the

vacated convictions to carry out the intent of the United States Sentencing

Guidelines. Mendoza, 118 F.3d at 709-10 (noting sentencing under the

Guidelines constitutes a sentencing package which considers all counts together,

therefore, when interrelated counts are vacated, resentencing is appropriate).

Moreover, the Government requested resentencing only six days after the court’s

order vacating Mr. Davis’ convictions. For these reasons, we conclude the

district court erred in its conclusion it did not have jurisdiction to consider

resentencing.



      Accordingly, the decision of the district court is REVERSED. The case is


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REMANDED to the district court for resentencing on the remaining counts.



                                   Entered by the Court:


                                   WADE BRORBY
                                   United States Circuit Judge




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