                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 14a0211p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 UNITED STATES OF AMERICA,                                       ┐
                                         Plaintiff-Appellee,     │
                                                                 │
                                                                 │         No. 11-6414
            v.                                                   │
                                                                  >
                                                                 │
 LYNCE P. FOSTER,                                                │
                                     Defendant-Appellant.        │
                                                                 ┘
                              Appeal from the United States District Court
                          for the Eastern District of Tennessee at Greeneville.
                            No. 2:09-cr-5—J. Ronnie Greer, District Judge.
                                           Argued: June 25, 2014
                                   Decided and Filed: August 28, 2014

       Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge.*

                                            _________________

                                                 COUNSEL

ARGUED: Frederick Liu, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant.
Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for
Appellee. ON BRIEF: Frederick Liu, HOGAN LOVELLS US LLP, Washington, D.C., Renée
Paradis, San Francisco, California, for Appellant. Luke A. McLaurin, Robert M. Reeves,
UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.




        *
         The Honorable Paul L. Maloney, United States District Judge for the Western District of Michigan, sitting
by designation.




                                                        1
No. 11-6414            United States v. Foster                                 Page 2

                                      _________________

                                           OPINION
                                      _________________

       ROGERS, Circuit Judge. Lynce Foster was sentenced to 622 months’ imprisonment for
two counts of drug possession, two counts of firearm possession, one count of drug distribution,
and one count of conspiracy. Both parties now agree that Foster’s conviction and sentence for
one of the drug possession counts and one of the firearm possession counts violate the Double
Jeopardy Clause because those two counts duplicate other counts for which Foster was convicted
and sentenced. The issue before us is whether the sentences for the remaining four counts should
also be vacated and remanded for resentencing. The 120-month sentence for the duplicative
drug possession count was set to run concurrently with three sentences of equal or greater length,
such that its vacatur could not logically be a basis for increasing the overall sentence for the
remaining counts. And the district court made clear at sentencing that the duplicative firearm
possession count did not affect the length of other parts of the sentence. There is, accordingly,
no basis for the district court to increase the sentence on the four remaining counts. In vacating
the two duplicative counts, we decline to permit resentencing on the remaining counts.

       On February 5, 2006, a police car pulled up behind a truck driven by Foster. When
Foster abandoned the truck and fled on foot, officers searched the truck, discovering a pistol
inside and 225.8 grams of cocaine and a Bryco Jennings pistol on the ground nearby. In January
2009, the Federal Government indicted Foster for possessing cocaine with intent to distribute,
possessing a firearm in furtherance of a drug trafficking crime, and possessing the Bryco
Jennings pistol and ammunition as a convicted felon. Shortly thereafter, the police linked Foster
to the robbery of a cocaine supplier that occurred on January 29, 2006, a week before Foster
abandoned the truck. A federal agent recognized that the January robbery “was the source of the
drugs” the police found outside the truck in February. Two superseding indictments added three
counts to the three with which Foster had already been charged.           The final superseding
indictment charged Foster with 1) conspiring to distribute, and to possess with intent to
distribute, over 500 grams or more of cocaine from about January 2005 to March 2006, in
violation of 21 U.S.C. § 841(a)(1); 2) possessing with intent to distribute 500 grams or more of
No. 11-6414               United States v. Foster                              Page 3

cocaine “on or about January 29, 2006,” in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); 3)
possessing a firearm in furtherance of the drug trafficking charged in Count 2, in violation of 18
U.S.C. § 924(c)(1)(A); 4) possessing cocaine on February 5, 2006, with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); 5) possessing a firearm on February 5, 2006,
in furtherance of the drug trafficking crime charged in Count 4, in violation of 18 U.S.C.
§ 924(c)(1)(A); and 6) possessing, as a previously convicted felon, the Bryco Jennings pistol and
ammunition found outside the truck and the pistol found inside the truck on February 5, 2006.

       Foster went to trial, where a jury convicted him of all six counts. The district court
imposed a net effective sentence of 622 months’ imprisonment. In calculating Foster’s sentence,
the district court cumulated the three drug counts (Counts 1, 2, and 4), which, given the total
quantity of drugs involved, resulted in a base offense level of 26. A three-level managerial role
enhancement and a one-level multi-count enhancement for the felon-in-possession charge (Count
6) bumped Foster’s adjusted offense level to 30. The district court also determined that Foster
qualified as a career offender under U.S.S.G. § 4B1.1(a), thus raising his offense level to 34 and
yielding a criminal history category of VI. Those classifications, in turn, correspond to an
advisory guideline range of 262 to 327 months’ imprisonment for Counts 1, 2, 4, and 6. Because
Counts 3 and 5 (the § 924(c) offenses) carried statutorily-mandated consecutive 60-month and
300-month terms, respectively, Foster’s total applicable Guidelines range was 622 to 687
months’ imprisonment.

       After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Foster to a
total of 622 months’ imprisonment: 262 months on Counts 1 and 2, and 120 months on Counts
4 and 6, all to be served concurrently; and consecutive terms of 60 and 300 months’
imprisonment, respectively, for Counts 3 and 5. At sentencing, Foster acknowledged that he
faced a mandatory consecutive term totaling 30 years on the § 924(c) convictions, and argued
that a 5-year sentence on the remaining counts—which was the statutory minimum—would be
sufficient when viewed in conjunction with the 30-year term.         The court rejected Foster’s
argument, stating that,

       It also would not be appropriate for me to simply look at the 30, 30 years that the
       Congress has said must be imposed on these gun counts and say that that’s
       enough in and of itself and so I ought to impose the minimum on the drug
No. 11-6414               United States v. Foster                                   Page 4

          count. . . . Congress has said that will be the penalty. And to simply say that,
          well, that’s enough for all this, or that’s enough in combination with the 5 year
          mandatory minimum for the drug charge simply requires me to ignore the
          seriousness of the drug charge and the conviction in those—that count and those
          related counts.

Foster appeals.

          On appeal, the parties agree that Counts 4 and 5 must be vacated on double jeopardy
grounds, since those Counts duplicate Counts 2 and 3, respectively. The Double Jeopardy
Clause prohibits multiple punishments for the same offense, which includes (as here), multiple
violations of the same statute based on a single, indivisible course of conduct. U.S. Const.
amend. V; United States v. Woods, 568 F.2d 509, 513 n.1 (6th Cir. 1995). In this case,

          [T]he United States concedes that the cocaine which Defendant possessed on
          February 5, 2006—i.e., the cocaine which served as the basis for Count Four—
          was, in fact, a portion of the same cocaine Defendant had possessed on January
          29, 2006—i.e., the cocaine which served as the basis for Count Two. . . . Since
          Defendant’s possession of that cocaine was continuous, he should have only been
          convicted of one violation of 21 U.S.C. § 841(a)(1). . . . Defendant’s conviction
          on Count Four should be vacated as multiplicitous with his conviction on Count
          Two.

Appellee Br. at 8. Similarly,

          Defendant’s conviction on Count Five also should be vacated because the
          firearms offense charged in that count was specifically alleged to have occurred
          during the commission of the drug-trafficking crime specified in Count Four.
          That Count Four drug-trafficking offense, however, was the same drug trafficking
          offense which was charged in Count Two. Since Defendant was properly
          convicted of possessing a firearm in furtherance of that drug-trafficking offense in
          Count Three, his Count Five conviction for the same conduct must also be
          vacated. See, e.g., United States v. Sims, 975 F.2d 1225, 1223 (6th Cir. 1992). . . .

Appellee Br. at 9. Accordingly, Counts 4 and 5 of Foster’s conviction must be vacated.

          The sentences the district court imposed on Counts 4 and 5 are not sufficiently
intertwined with the non-duplicative counts to warrant resentencing on the non-duplicative
counts.     Under 28 U.S.C. § 2106, after correcting an error in a defendant’s conviction or
sentence, this court has discretion to issue a general or a limited remand, and to “direct the entry
of such appropriate judgment, decree, or order, or require such further proceedings to be had as
No. 11-6414             United States v. Foster                                 Page 5

may be just under the circumstances.” The Government argues that we should remand in a way
that would permit the district court to increase the sentence on the four remaining counts. Foster,
however—while recognizing that a resentencing could result in a shorter sentence on the
remaining counts, for instance on the basis of intervening good behavior, see Pepper v. United
States, 131 S. Ct. 1229, 1241 (2011)—opposes (and thus perforce waives) resentencing or
reconsideration of the remaining sentence.

       A remand to permit an increase in Foster’s sentence for the four remaining counts is not
warranted here. Vacatur of Count 4 does not afford a coherent basis for increasing the sentence
for the remaining counts, because the sentence for Count 4 ran concurrently with three other
sentences of equal or greater length. The whole idea of a concurrent sentence assumes that the
sentence will remain the same even if a lesser concurrent sentence is later invalidated. While
there might be some intuitive appeal to reducing the overall length of imprisonment when one of
several concurrent sentences is reversed, there is nothing that could support increasing the
punishment for the remaining counts. Thus, vacatur of Count 4 cannot provide a basis for
remanding to allow for an increase in Foster’s sentence for the remaining counts.

       As to Count 5, the record makes clear that vacatur of that count—and the accompanying,
mandatorily-consecutive 25-year sentence—may not serve as a basis for a remand to permit an
increase in Foster’s sentence for the remaining counts. It might make sense to increase the
sentence for the remaining counts if the district court took into account the lengthy, consecutive
sentence for Count 5 in imposing a sentence for the drug and conspiracy counts shorter than the
court might otherwise have imposed. If there were such a possibility, the sentence for Count 5
might be sufficiently intertwined with the sentence for the remaining counts to permit the district
court to revisit the sentence for those counts. See Pasquarille v. United States, 130 F.3d 1220,
1222 (6th Cir. 1997). But there is no such possibility on the record in this case. At sentencing,
Foster asked the district court to take into account the lengthy, mandatorily-consecutive
sentences for Counts 3 and 5 when determining the length of the sentence for the drug possession
counts. The district court refused to do so, saying:

       It also would not be appropriate for me to simply look at the 30, 30 years that
       Congress has said must be imposed on these gun counts and say that that’s
       enough in and of itself and so I ought to impose the minimum on the drug count.
No. 11-6414            United States v. Foster                                   Page 6

       I, I frankly don’t feel like it’s appropriate for me to consider that in that way, Mr.
       Foster. It’s—Congress has said that will be the penalty. And to simply say that,
       well, that’s enough for all this, or that’s enough in combination with the 5 year
       mandatory minimum for the drug charge simply requires me to ignore the
       seriousness of the drug charge and the conviction in those—that count and those
       related counts.

Because the district court explicitly declined to take Foster’s sentence for Count 5 into account
when sentencing Foster for the remaining counts, vacatur of Count 5 cannot be the basis for
revisiting the sentence imposed for the remaining counts.

       The cases cited by the Government do not require a different result. The Government
contends that cases such as United States v. Campbell, 168 F.3d 263, 265–68 (6th Cir. 1999), and
United States v. McFalls, 675 F.3d 599, 604 (6th Cir. 2012), establish a presumption that
remands are general rather than limited.        The presumption, however, is used to determine
whether unclear or ambiguous remands are general or limited in nature. It says nothing about
whether a remand should be general or limited in the first place.

       The Government also points to language from our unpublished opinion in United States
v. Faulkenberry, to the effect that, “[w]hen a defendant is convicted of and sentenced for
multiple offenses stemming from the same course of conduct and one or more of those
convictions is reversed on appeal, the court of appeals can—and ordinarily should—remand the
case for resentencing on the remaining counts.” 461 F. App’x 496, 502 (6th Cir. 2012). But, as
Faulkenberry itself makes clear, that is true only when “a multiple-count criminal judgment”
produces “‘interdependent’ sentences.”        Id. at 499, quoting United States v. Faulkenberry,
614 F.3d 573, 590 (6th Cir. 2010). In those circumstances, a complete remand is apposite
because “[w]hen a defendant challenges convictions on particular counts that are inextricably
tied to other counts in determining the sentencing range under the guidelines, the defendant
assumes the risk of undoing the intricate knot of calculations should he succeed.” Id., at 501–02
(quoting United States v. Atehortva, 69 F.3d 679, 685–86 (2d Cir. 1995)). Here, however, there
is no evidence that the sentence for the four remaining counts was “inextricably tied” to Counts 4
and 5. To the contrary, the sentencing record establishes that Counts 4 and 5 had no effect on the
sentence for the remaining counts. Faulkenberry, then, does not supply a basis for reopening
Foster’s sentence for the remaining counts.
No. 11-6414            United States v. Foster                                  Page 7

       Finally, the Government cites United States v. Clements, 86 F.3d 599 (6th Cir. 1996), for
the proposition that “a mandatory-consecutive [18 U.S.C.] § 924(c) sentence [is] interdependent
with a sentence on the underlying drug-trafficking count.” But Clements is not so categorical.
Clements’s sentences for drug offenses and using or carrying a firearm were interdependent
because: “Had the defendant not been convicted under § 924(c), the District Court would have
had the discretion [under the Sentencing Guidelines] to increase his drug trafficking offense level
for firearm possession. However, since he was in fact convicted under § 924(c), it did not have
such discretion.” 86 F.3d at 601. By contrast, even had Foster not been convicted on Count 5,
the district court could not have increased his drug trafficking offense level for firearm
possession, because Count 3 of the second superseding indictment already punished Foster,
under § 924(c), for that very offense.     When a defendant “is charged with and sentenced
separately for using or carrying a firearm in violation of 18 U.S.C. § 924(c), the two-level
enhancement for firearm possession pursuant to [USSG] § 2D1.1(b)(1) is not permitted so as to
avoid double counting.” Id. (citing USSG § 2K2.4, cmt. 3). Thus, with or without Count 5, the
district court was precluded from enhancing Foster’s drug trafficking sentence to account for
Foster’s firearm possession.

       In light of our holding, we need not address Foster’s argument that the Constitution’s
Double Jeopardy Clause prohibits resentencing on the four non-duplicative counts. We vacate
only Foster’s sentences on Count 4 (a concurrent 120-month sentence for possessing cocaine
with intent to distribute), and Count 5 (a consecutive 25-year sentence for possessing a firearm in
furtherance of a drug trafficking crime).        The case is remanded to the district court for
proceedings in accordance with this opinion.
