                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       MAR 10 1998

                                                                   PATRICK FISHER
                                PUBLISH                                     Clerk

             UNITED STATES COURT OF APPEALS
                      TENTH CIRCUIT



UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                   No. 97-3142

JAMES MANDELL LEWIS,

      Defendant-Appellant,


                 Appeal from the United States District Court
                          for the District of Kansas
                           (D.C. No. 97-CV-3007)


SUBMITTED ON THE BRIEFS:

James Mandell Lewis, Pro Se.



Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.


SEYMOUR, Chief Judge.
      James Mandell Lewis brought this 28 U.S.C. § 2255 petition seeking

vacation of his conviction under 18 U.S.C. § 924(c) without fear of future

prosecution on other counts dismissed pursuant to his plea agreement. The

district court denied relief. Mr. Lewis appeals and we affirm.



                                         I

      Mr. Lewis was charged in a second superseding indictment with eleven

counts of various cocaine and firearms offenses. In accordance with a written

plea agreement filed with the court, Mr. Lewis pled guilty to count ten, which

charged him with using a firearm during and in relation to a drug trafficking

offense in violation of section 924(c)(1). The remaining counts were dismissed.

He was sentenced to sixty months in prison and did not file a direct appeal.

      The Supreme Court subsequently issued its opinion in Bailey v. United

States, 516 U.S. 137 (1995), in which the Court construed using a firearm in

violation of section 924(c)(1) more narrowly than this court had done previously.

Mr. Lewis then brought this action under 28 U.S.C. § 2255, in which he relied

upon Bailey to challenge his conviction under section 924(c)(1). In so doing, Mr.

Lewis emphasized that he was not seeking to set aside the plea agreement under

which the ten remaining counts against him were dismissed, and he asserted that

he was therefore entitled to immediate release. The government agreed with Mr.


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Lewis that in light of Bailey the evidence did not support his conviction under

section 924(c)(1). However, the government argued that if the count of

conviction were vacated, the entire plea agreement would be voided and Mr.

Lewis would again be subject to prosecution on the dismissed charges.

      In a thorough and thoughtful memorandum and order, the district court held

Mr. Lewis could seek to rescind his agreement with the government because of

the parties’ mutually mistaken belief when entering the plea bargain that the

evidence supported the section 924(c)(1) count. See United States v. Lewis, 964

F. Supp. 1513, 1521 (D. Kan. 1997). However, the court rejected Mr. Lewis’

assertion that he could challenge the count of conviction with impunity.

             Lewis is the party adversely affected by the parties’ mutual
      mistake. His plea agreement with the government is therefore
      voidable if he so chooses. Under contract, equitable and
      constitutional principles, Lewis may seek to withdraw his plea.
      Lewis is not, however, entitled to vacation of his conviction without
      fear of prosecution on the counts dismissed pursuant to the plea
      agreement.

Id.

      Pointing out that withdrawal of the plea might expose Mr. Lewis to a

substantially longer period of imprisonment than he had received under the plea

agreement, the district court strongly encouraged Mr. Lewis to seek the advice of

counsel, denied his section 2255 petition to the extent it sought to vacate only the

section 924(c)(1) conviction, and took the matter under advisement to allow Mr.


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Lewis the opportunity to review his options in light of the court’s ruling. Id. at

1521-22. In response, Mr. Lewis continued to argue that he was entitled to

challenge only the portion of the plea agreement under which he was convicted of

violating section 924(c)(1), and moved the court to treat his response as a notice

of appeal of the court’s ruling to the contrary. The court then construed Mr.

Lewis’ section 2255 petition as one seeking to vacate his section 924(c)(1)

conviction without fear of prosecution on the counts dismissed pursuant to the

plea agreement and denied it. 1

                                          II

      On appeal, Mr. Lewis contends that because he did not seek vacation of his

plea, the district court was without authority to direct him to choose between

vacating the entire plea agreement or having his section 2255 motion denied. He

further contends the district court erred in ruling that if Mr. Lewis successfully

challenged his section 924(c)(1) conviction, the government could proceed

against him on the dismissed charges.

      In support of his position, Mr. Lewis relies on the Ninth Circuit’s opinion

in United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997). In rejecting



      1
        The district court issued a certificate of appealability pursuant to this
court’s Emergency General Order, In re Procedures Regarding the Prison
Litigation Reform Act and the Antiterrorist and effective Death Penalty Act, No.
96-41 (10th Cir. Oct. 1, 1996).

                                         -4-
Mr. Lewis’ arguments, the district court relied on United States v. Barron, 940 F.

Supp. 1489 (D. Alaska 1996). The Ninth Circuit subsequently affirmed that

analysis, see United States v. Barron, 127 F.3d 890 (9th Cir. 1997), and

distinguished Sandoval-Lopez in so doing. We recently declined to follow

Sandoval-Lopez, see United States v. Bunner, No. 97-5066, 1998 WL 17352, at

*2 (10th Cir. Jan. 20, 1998), 2 and expressed no opinion on the Ninth Circuit’s

analysis in Barron because it was not pertinent to the arguments then before us,

see id. at *2, n.2. The instant case, however, does require that we consider the

rationale set out in Barron. As we discuss briefly below, we find Barron

persuasive and therefore affirm the district court.

      In Barron, the defendant entered into a plea agreement under which he pled

guilty to one firearm possession count, one drug possession count, and one count

of violating section 924(c)(1). He was given concurrent sentences of 120 months

on the possession charges, and a consecutive sentence of 60 months on the section

924(c)(1) count. After the defendant began serving his sentence, he sought relief

under section 2255 alleging that his section 924(c)(1) conviction was invalid



      2
        Applying contract principles, we held in Bunner that the purpose of the
plea agreement was frustrated by an intervening event, the decision in Bailey.
The defendant was then faced with two choices: he could perform under the
agreement as though Bailey did not exist, or he could move to vacate his sentence
on the basis of Bailey. Once he did the latter, he relieved the government from
performing its side of the plea bargain. See Bunner, 1998 WL 17352, at *4-5.

                                         -5-
under the recently decided Bailey. The district court agreed, but ruled that if the

defendant chose to let his section 2255 motion stand, the court would rescind the

entire plea agreement, reinstate all three counts, and return the parties to the

position they were in before entering the plea agreement. See Barron, 940 F.

Supp. at 1494.

      On appeal, the Ninth Circuit held that when the challenged conviction is

part of a package, the district court has jurisdiction to “abrogate an entire plea

agreement under section 2255, even when that entails vacating unchallenged

counts of conviction.” Barron, 127 F.3d at 895. In so doing, the court pointed to

unanimous circuit authority holding that “section 2255 confers jurisdiction on

district courts to resentence a defendant on unchallenged counts of conviction

after vacating a challenged 924(c) count, at least where the aggregate sentence

can be viewed as a ‘package.’” Id. at 894. Pointing out that the language of

section 2255 confers broad and flexible remedial power on the district court, the

Ninth Circuit concluded that “[j]ust as section 2255's grant of authority to

‘resentence’ the defendant and ‘correct the sentence as may appear appropriate’

confers remedial jurisdiction over the aggregate sentence, the grant of authority to

‘vacate and set the judgment aside’ and ‘correct the sentence as may appear

appropriate,’ confers remedial jurisdiction over the aggregate judgment.” Id. at

894-95.


                                          -6-
      This court has joined those circuits holding that “a district court has

authority to resentence a defendant on unchallenged related convictions, after

vacating a § 924(c) conviction in a § 2255 proceeding.” United States v.

Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). In Mendoza, the defendant pled

guilty to both a drug conspiracy and a section 924(c) violation and was given a

sentence of eighty-seven months on the conspiracy conviction and a consecutive

sixty months on the firearm conviction. After a successful section 2255 challenge

to the section 924(c) conviction, the district court resentenced the defendant to

one hundred eight months on the remaining conspiracy conviction after enhancing

it under the sentencing guidelines for possession of a weapon. Id. at 708-09. The

defendant appealed and we affirmed, holding that “[i]n light of § 2255's language

and the interdependence of defendant’s conspiracy and firearm sentences, the

district court possessed authority under § 2255 to resentence defendant on the . . .

conspiracy conviction, after having vacated the § 924(c) conviction and

sentence.” Id. at 710 (citation omitted). We also rejected the defendant’s

argument that the district court’s authority to resentence him was limited by his

failure to challenge the conspiracy conviction or sentence, stating that “[t]he

specific issues the defendant raises in a § 2255 motion, however, do not

circumscribe the district court’s authority when resentencing becomes necessary.”

Id.


                                         -7-
       We agree with the Ninth Circuit in Barron that the broad and flexible

remedial power conferred on the district court by section 2255 together with the

interdependence of the various counts disposed of in a plea agreement, upon

which we relied in Mendoza, provide the district court with authority to vacate an

entire plea agreement when a conviction that is part of the plea package is

vacated. 3

              Given the realities of plea bargaining, it makes good sense to
       apply the sentence package concept when a petitioner challenges one
       of multiple convictions obtained under a plea agreement. . . . Because
       the district court cannot possibly know what convictions or sentences
       [a defendant] would have received had he not pleaded guilty to the
       section 924(c) count . . ., an appropriate remedy is to put [the
       defendant] in the position he was in before he entered into the plea
       agreement or before the district court accepted the plea based on
       conduct which did not constitute the crime charged.

Barron, 127 F.3d. at 895. As the Ninth Circuit observed with regard to the

circumstances in the instant case, “[t]his remedy would also be appropriate where

the government agreed to drop some charges brought in the original indictment in

exchange for the petitioner’s agreement to plead to others.” Id. at 896 n.4.

       In sum, we AFFIRM the district court’s decision denying Mr. Lewis’

motion to vacate his section 924(c) conviction without vacating the plea



       3
        Although we were guided by contract principles when deciding United
States v. Bunner, 1998 WL 17352, inherent in our analysis under the “frustration
of purpose” doctrine was the notion that a plea package confers interdependent
benefits on both parties, see id. at *4-5.

                                         -8-
agreement under which it was entered.




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