                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-1997

United States v. Martin
Precedential or Non-Precedential:

Docket 96-7373




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Recommended Citation
"United States v. Martin" (1997). 1997 Decisions. Paper 134.
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Filed June 18, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7373

UNITED STATES OF AMERICA

v.

JOHN MARTIN

JOHN W. MARTIN, JR.,

Appellant.

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 93-cr-00176)

Argued January 15, 1997

Before: SLOVITER, Chief Judge, SCIRICA and SEITZ,
Circuit Judges.

Filed: June 18, 1997

James V. Wade, Esq., (Argued)
Federal Public Defender
Lori J. Ulrich, Esq.
Assistant Federal Public Defender
Office of Federal Public Defender
100 Chestnut Street
Harrisburg, Pennsylvania 17101

Attorneys for Appellant
David M. Barasch, Esq.
United States Attorney
Eric Pfisterer, Esq. (Argued)
Assistant United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, Pennsylvania 17108

Attorneys for Appellee

OPINION OF THE COURT

PER CURIAM.

This appeal arises in the wake of the Supreme Court's
interpretation of 18 U.S.C. § 924(c)(1) in Bailey v. United
States, 116 S. Ct. 501 (1995).

John Martin ("Appellant") was convicted on December 2,
1993 of violating 18 U.S.C. §§ 922(g) and 924(a)(2)
(possession of a firearm by a convicted felon) ("Count I")
and 18 U.S.C. § 924(c)(1) ("Count II") (use of a firearm
during or in relation to a drug trafficking crime). He was
sentenced by the district court to a term of imprisonment
of thirty-seven months on Count I and a consecutive term
of sixty months on Count II. This court affirmed both
convictions on February 24, 1995.

On December 6, 1995, the Supreme Court filed its
opinion in Bailey, in which it held that a conviction under
18 U.S.C. § 924(c)(1) for using a firearm during and in
relation to a drug trafficking crime requires the "active
employment" of the weapon by the defendant. Bailey, 116
S. Ct. at 506, 509. The Court's decision has generated
numerous appeals, both direct and collateral, from
convictions under section 924(c)(1) that predated the ruling
in Bailey.

Having lost his direct appeal to this court only ten days
before the Court decided Bailey, Appellantfiled a motion in
the district court under 28 U.S.C. § 2255 on February 23,
1996 to vacate, set aside, or correct his sentence for

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violating section 924(c)(1). The government concurred in the
vacatur of the Count II conviction and sentence, but
requested that Appellant be resentenced on his Count I
conviction. The district court vacated the Count II
conviction, but rejected Appellant's jurisdictional and
constitutional arguments as to the Count I conviction and
resentenced him to a term of imprisonment of fifty-seven
months on that count.1 This timely appeal followed.

Appellant argues here that the district court lacked
jurisdiction to resentence him on his Count I conviction,
which he did not challenge in the section 2255 proceeding.
He claims that the district court's jurisdiction was limited
to a review of Count II and the concomitant "sentence" that
he attacked. Appellant further asserts that his resentencing
by the district court on Count I violated his due process
rights and the prohibition against double jeopardy because
he possessed a legitimate expectation of finality as to the
portion of his original sentence imposed under Count I.

Our jurisdiction arises under 28 U.S.C. § 1291, and our
review is plenary as to both issues. United States v.
Barnhart, 980 F.2d 219, 222 (3d Cir. 1992); Zettlemoyer v.
Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991).

Since the date of oral argument before us in this case,
another panel of this court has filed a reported opinion
holding that a district court has jurisdiction to resentence
a section 2255 petitioner on unchallenged counts where the
petitioner successfully attacks a section 924(c)(1) conviction
on the basis of the Supreme Court's decision in Bailey. See
United States v. Davis, 112 F.3d 118 (3d Cir. 1997).

Third Circuit Internal Operating Procedure 9.1 reads:

It is the tradition of this court that the holding of a
panel in a reported opinion is binding on subsequent
panels. Thus, no subsequent panel overrules the
holding in a published opinion of a previous panel.
Court in banc consideration is required to do so.

3d Cir. R., App. I, I.O.P. 9.1 (West Supp. 1997). Given the
_________________________________________________________________

1. At the time of the resentencing hearing, Appellant had completed 23
months of his original, 37-month term of imprisonment on Count I.

                    3
circumstances here, we conclude that this court's holding
in Davis dictates our disposition here. See United States v.
Audinot, 901 F.2d 1201, 1204 (3d Cir. 1990).

The order of the district court resentencing Appellant to
a term of imprisonment of fifty-seven months on his Count
I convictions will be affirmed.

                    4
SLOVITER, Chief Judge, concurring in the judgment only.

This case raises the important question whether a
criminal defendant convicted on two counts who
successfully challenged his conviction on the second count
on a § 2255 petition pursuant to Bailey v. United States,
116 S. Ct. 501 (1995), may be resentenced on motion of the
government on the first count. After this case was argued
but before we rendered an opinion, another panel of this
court decided the same issue in United States v. Davis, 112
F.3d 118 (3d Cir. 1997), holding there was no impediment
to the resentencing. As the majority states, our Internal
Operating Procedures bind us to that holding unless
overturned by the court en banc. I disagree with the holding
in Davis and use this opportunity to state my position. I
believe that on collateral review a district court only has
jurisdiction over the particular sentence challenged in the
§ 2255 petition, not over all sentences which the petitioner
may be serving.

The district courts were divided on the issue, with some
holding that sentencing courts do not have the power to
resentence a prisoner after a successful collateral attack on
another count, and others holding that they do. Recently,
what had been a similar division among the courts of
appeals has shifted to the position that the district courts
do have the power to resentence under a broad
interpretation of 28 U.S.C. § 2255. See United States v.
Rodriguez, 1997 WL 265121, ___ F.3d #6D 6D6D# (5th Cir. 1997);
United States v. Harrison, 1997 WL 232266, #6D 6D6D# F.3d ___
(8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st
Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir.
1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996),
cert. denied, 1997 WL 221217 (1997). But see United States
v. Handa, 110 F.3d 42 (9th Cir. 1997) (approving district
court's holding that there was no authority to resentence
under Rule 35 or § 22551).
_________________________________________________________________

1. The court in Handa nonetheless directed resentencing based on 28
U.S.C. § 2106 which allows the Supreme Court or any court of appeals
to modify any sentence brought before it for review "as may be just
under the circumstances." As far as I know, no other court has relied on
this provision, and I believe its applicability under these facts is
questionable.

                   5
I will concentrate on our Davis opinion as that is the
controlling precedent.

Martin concedes that if this issue were raised in the
context of a direct appeal the district court could
resentence him. See Fed. R. Crim. P. 35(a); United States v.
Busic, 639 F.2d 940, 950-51 (3d Cir.), cert. denied, 452
U.S. 918 (1981). However, he notes that the Supreme Court
has emphasized the distinction between direct review and
review on a collateral proceeding. In United States v.
Addonizio, 442 U.S. 178, 184 (1979), the Court stated: "It
has, of course, long been settled law that an error that may
justify reversal on direct appeal will not necessarily support
a collateral attack on a final judgment."

Section 2255 is the federal analog to the common law
writ of habeas corpus allowing a criminal defendant to
challenge a federal sentence. In United States v. Hayman,
342 U.S. 205, 219 (1952), the Supreme Court explained
that § 2255 offered the same remedies as a traditional
habeas petition and was to have the same substantive
scope. A § 2255 petition, like a petition for a writ of habeas
corpus, is a remedy afforded the prisoner, not the
government, and the government has no power, either at
common law or by statute, to seek collateral review of a
prisoner's conviction or sentence.

In its discussion of the purposes behind habeas corpus
in McNally v. Hill, 293 U.S. 131, 136 (1934), the Supreme
Court explained that historically habeas was intended to
"inquire into the legality of the detention" and could only be
used if a decision in the prisoner's favor would result in his
immediate release. Id. at 138. The Court continued:
"Wherever the issue has been presented, this Court has
consistently refused to review, upon habeas corpus,
questions which do not concern the lawfulness of the
detention." 293 U.S. at 139 (footnote omitted). Patently, the
government's effort to have the sentence of a convicted
defendant enhanced raises a question which does not
concern the "lawfulness of the detention," which was the
limit of the scope of a collateral review iterated by the
Court.

It follows that if the sentencing court is to have the
jurisdiction to enhance the defendant's sentence through

                    6
the vehicle of a § 2255 petition after the time for direct
appeal has passed, then its authority to do so, in deviation
from the practice under a traditional habeas proceeding,
must derive from specific language in § 2255. That was the
basis on which the Fourth Circuit in Hillary found the
authority, focusing on the portion of § 2255 that provides
that if the district court grants a § 2255 motion, it "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.
Hillary interpreted that language as bestowing broad
remedial powers on the district court to correct a"sentence"
as it finds "appropriate." See Hillary, 106 F.3d at 1173.
That interpretation has been adopted in most of the recent
opinions on this issue in the other courts of appeals.

I find this court's opinion in Davis equivocal as to
whether it is adopting the conclusion in Hillary that the
language in § 2255 means that the court is not limited in
its resentencing options to only the count challenged in the
motion. On one hand, it approvingly cites Hillary and the
other courts so holding. On the other hand, it rather deftly
rests its express holding on a different analysis.

In any event, whether Davis holds or merely suggests
that the language of § 2255 gives the district court
authority to enhance an unchallenged sentence, I disagree.
Placed in context, the court's jurisdiction to "correct" the
sentence is limited to correction in favor of the petitioning
prisoner who is determined to be "entitled to relief."2 The
_________________________________________________________________

2. 28 U.S.C. § 2255 provides in relevant part:

A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall cause

                    7
"sentence" that is to be corrected is the one called into
question by the prisoner on his or her § 2255 petition. This
is the statutory interpretation also reached by Judge
Heaney in his dissenting opinion in Harrison, 1997 WL
232266, at *4.

To be sure, the Davis panel rests its explicit holding on
a ground other than this broad and, I believe,
unsupportable statutory interpretation. Instead, in Davis
the court based its holding on the "interdependence of the
counts for Guideline sentencing purposes." Davis, 112 F.3d
at ___ , 1997 WL 195397, at *3. Under U.S.S.G.
§ 2D1.1(b)(1), the court would have imposed a two-level
enhancement to the sentence on the drug counts for
possession of a firearm, but Davis' conviction under the
§ 924(c) count precluded that enhancement. See U.S.S.G.
§ 2K2.4 Background Commentary. Thus, the Davis court
held that vacating the now invalid § 924(c) sentence
because of Bailey without resentencing on the remaining
counts would mean that Davis' "sentence would not be in
conformity with the law." Davis, 1997 WL 195397, at *4.

In this respect, Davis relied on the "sentencing package"
doctrine. That doctrine seeks to reconstruct the sentencing
judge's overall plan in sentencing on a multi-count
indictment, and holds that when a conviction on one of the
counts of a multi-count conviction is vacated, the
sentencing judge "should be free to review the efficacy of
what remains in light of the original plan, and to
reconstruct the sentencing architecture upon remand,
_________________________________________________________________

notice thereof to be served upon the United States attorney, grant a
prompt hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto. If the court finds
that the judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open to
collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render
the judgment vulnerable to collateral attack, 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.

(emphasis added)

                    8
within applicable constitutional and statutory limits, if that
appears necessary in order to ensure that the punishment
still fits both crime and criminal." United States v. Pimienta-
Redondo, 874 F.2d 9, 14 (1st Cir.), cert. denied, 493 U.S.
890 (1989).

Although I believe the sentencing package doctrine fully
supports resentencing on a direct appeal, I believe that it
does not serve to place within "applicable constitutional
and statutory limits" the disturbance of a sentence at the
behest of the government after the time for direct appeal
has run.

Because the "sentencing package" doctrine is based on
the sentencing court's original intent in fixing the sentence,
the Supreme Court's decision in Addonizio, 442 U.S. at
179, is informative regarding the "sentencing package"
doctrine's applicability to a § 2255 proceeding. Addonizio, a
former mayor of the city of Newark, New Jersey, was
convicted of an extortion conspiracy and sentenced to 10
years imprisonment. See id. at 180 & n.2. While he was
serving his sentence, the Parole Commission changed its
policies to take the seriousness of the crime into
consideration and refused to release Addonizio once he
became eligible for parole because of the seriousness of his
crime. Addonizio filed a petition under § 2255, and the
same judge who had sentenced him granted that petition
on the ground that at the time he imposed sentence he
anticipated that Addonizio would be actually confined for
three and one-half to four years, and that his "sentencing
expectation" was frustrated by the Parole Commission's
new policies and procedures. See id. at 183.

This court affirmed but the Supreme Court reversed,
holding that as long as the sentence was a lawful one
under "all of the objective criteria - federal jurisdiction, the
Constitution, and federal law," id. at 187, Addonizio was
not entitled to relief under § 2255. The Court stated, in
language of interest here, "in our judgment, there is no
basis for enlarging the grounds for collateral attack to
include claims based not on any objectively ascertainable
error but on the frustration of the subjective intent of the
sentencing judge." Id.

                     9
I recognize that here the expectation of the sentencing
judge was dependent upon the interaction between the
statute and the Sentencing Guidelines, whereas in
Addonizio only the subjective intent of the sentencing judge
was at issue. Nonetheless, the frustration of the sentencing
judge's expectation can no more create jurisdiction to open
a sentence on a count unchallenged in the § 2255
proceeding than it could authorize resentencing on a count
dismissed as part of a plea bargain when the counts on
which the defendant pled and was sentenced are later
successfully challenged on a § 2255 petition. Inasmuch as
the intent of the sentencing judge was held in Addonizio to
be an inadequate basis for a defendant to open the
sentence under § 2255, I believe it cannot be used to
support the sentencing package theory as a rationale to
permit the sentencing judge to revisit the entire sentence
on a § 2255 motion at the behest of the government.

I find that my views comport with those expressed by the
court of appeals in Chandler v. United States, 468 F.2d 834
(5th Cir. 1972), an opinion since limited by that court's
decision in United States v. Rodriguez, 1997 WL 265121
(5th Cir. 1997). The defendant in Chandler had been
convicted of one count of tax evasion and one count of
subscribing a fraudulent tax return, and was sentenced to
five years imprisonment on count one and three years
imprisonment on count two. After the defendant
successfully moved under § 2255 to vacate the sentence on
count one because it was in excess of the statutory
maximum, the district court resentenced her on the second
count to five years in order to have its sentencing intent
fulfilled. The court of appeals reversed on double jeopardy
grounds, holding that the district court could not
resentence the defendant on a count not raised in her
§ 2255 petition.

While I prefer to rest my opinion on the lack of
jurisdiction rather than reach the double jeopardy issue, I
am impressed by the force of the Chandler court's comment
that:

To allow the trial court's action in this case to stand
would place a rather formidable deterrent in the path
of a convicted defendant who desires to apply for post-

                   10
conviction relief on only one count of a multi-count
conviction. By subjecting the defendant to the
contingency of having a non-challenged sentence
escalated to the statutory maximum, we would truly be
inviting the defendant to play `Russian Roulette.'

468 F.2d at at 837.

The concerns raised in Chandler are not merely
academic, as defendants who have used Bailey to
successfully challenge their § 924(c) convictions on one
count of a multi-count indictment and even have completed
the service of the term to which they were sentenced on the
other count have been resentenced to a longer term. See,
e.g., United States v. Smith, 103 F.3d 531, 532 (7th Cir.
1996) (enhancing and using the resentence also to correct
an improper calculation of the base offense level to the
defendant's detriment); Woodhouse v. United States, 109
F.3d 347, 348 (7th Cir. 1997) (returning a released prisoner
to prison on the subsequently enhanced sentence).

The availability of a collateral attack via § 2255 is thereby
being transformed from a symbol of personal liberty into a
tool for the government to revisit final sentences. Once the
distinctions between direct review and collateral attacks are
extinguished, there may be no principle that would prohibit
a court from resentencing a defendant to an even higher
sentence than s/he had been given before ever filing the
petition. The writ that originally could only be used to seek
immediate release from custody could now be used by the
government to extend custody.

I recognize that the recent cases from the other circuits
make my view a lonely one (joined only by Judge Heaney's
dissent in the Eighth Circuit), but I believe our Davis
opinion sets us on a dangerous road for which only the
Supreme Court may provide a different destination.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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