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


4-23-1997

United States v. Davis
Precedential or Non-Precedential:

Docket 96-1721




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                          UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                         __________

                                        No. 96-1721
                                         __________


                              UNITED STATES OF AMERICA,

                                                     Appellee,

                                              vs.

                       BARRY DAVIS, a/k/a "MARK JOHNSON",


                                                     Appellant.

                                         __________

    Appeal from the Judgment of Sentence by the United States
District Court for the Eastern District of Pennsylvania
                      (Criminal No. 92-218)
                District Judge: James McGirr Kelly

                                         __________

                                  Argued
                             February 7, 1997
             Before: STAPLETON and MANSMANN, Circuit Judges,
              RESTANI, Judge, Court of International Trade.*

                                (Filed April 23, 1997)




  *
    Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
Mark S. Greenberg, Esquire [Argued]
Stephen Robert LaCheen & Associates
225 South 15th Street
3100 Lewis Tower Building
Philadelphia, Pennsylvania 19102
     Attorney for Appellant.

Eric W. Sitarchuk, Esquire
United States Attorney
Walter S. Batty, Jr., Esquire
Assistant United States Attorney, Chief of Appeals
Sarah L. Grieb, Esquire [Argued]
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106-4476
     Attorneys for Appellee.
                            __________

                       OPINION OF THE COURT
                            __________
RESTANI, Judge.



     Barry Davis appeals the district court's finding of

jurisdiction to resentence on a count related to the 18 U.S.C. §

924(c) conviction successfully challenged in Davis' 28 U.S.C. §

2255 motion.   In resentencing Davis, the district court vacated

the 60 month sentence imposed for the § 924(c) conviction and, as

required under the United States Sentencing Guidelines

("U.S.S.G.") § 2D1.1(b)(1), imposed a two level enhancement for

possession of a firearm during a drug crime.   The district court

also held that the resentencing did not violate Davis' due

process rights.   We will affirm.
                                I.




                                2
       Appellant, Barry Davis, was convicted after jury trial of:

six counts of making false statements in connection with the

acquisition of firearms, 18 U.S.C. § 922(a)(6); one count of

possession with intent to distribute cocaine, 21 U.S.C. §

841(a)(1); one count of making an apartment available for drug

distribution, 21 U.S.C. § 856; and one count of using a firearm

during and in relation to a drug trafficking crime, 18 U.S.C. §

924(c).      The district court originally sentenced Davis to a term

of imprisonment of 123 months.                  The sentence included a term of

63 months for the drug counts, 60 months for the false statement

count, and 60 months for the § 924(c) count.                         The terms for the

drug and false statement counts were to be served concurrently,

while the term for the § 924(c) count was to be served

consecutively to the other terms.

       Davis subsequently filed a motion under 28 U.S.C. § 2255

seeking to vacate, set aside, or correct his sentence.                               He

claimed that his conviction under § 924(c)(1) for use of a

firearm during a drug trafficking crime was inconsistent with the

Supreme Court's ruling in Bailey v. United States, 116 S. Ct. 501

(1995).1      The district court agreed, vacated the § 924(c)

conviction and ordered resentencing on the remaining counts.




  1
       The Supreme Court's decision in Bailey requires the government to prove "active
employment" of a firearm to sustain a conviction under the use prong of section 924(c). Bailey,
116 S. Ct. at 505.



                                                3
     On August 13, 1996, the district court held that it had

jurisdiction to resentence Davis on the remaining unchallenged

counts, finding support in both the language of § 2255 and the

sentencing package doctrine.    United States v. Davis, No. Crim.

92-218, Civ. 96-2540, 1996 WL 466940, at *2-3 (E.D. Pa. Aug. 13,

1996).    As the Bailey decision invalidated Davis' § 924(c)

conviction, the Sentencing Guidelines no longer barred

application of a two level enhancement pursuant to U.S.S.G. §

2D1.1.2   Id.   As a result, Davis' offense level was raised from

level 26 to level 28.    Combined with a Criminal History Category

I, this resulted in an imprisonment range of 78 to 97 months.

The district court sentenced Davis to 95 months.    The court noted

that this would have been the result had Davis never been

convicted of the § 924(c) charge at the time of the original

sentencing.     Davis, 1996 WL 466940, at *2.

     Davis appeals the district court's judgment of sentence on

two grounds: (1) the court lacked jurisdiction to resentence

Davis on the unchallenged counts of his multicount conviction,

and (2) resentencing Davis violated his due process rights.    We


 2
     This two level enhancement was not available at the time of
original sentencing because the Sentencing Guidelines do not
permit a § 2D1.1(b)(1) enhancement when a defendant is convicted
on both a § 924(c) count and on an underlying drug count.
U.S.S.G. § 2K2.4, Commentary Background. Applying the
enhancement would have resulted in impermissible double counting,
essentially punishing the defendant twice for possession of a
firearm, once under § 924(c)(1) and once under U.S.S.G. §
2D1.1(b)(1). Id.



                                  4
have jurisdiction to adjudicate this appeal pursuant to 28 U.S.C.

§ 1291.   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).
                         II.   Jurisdiction

     The issue before the court is whether the district court had

jurisdiction to recalculate the aggregate sentence when the

petitioner's § 2255 motion successfully challenged only one of

the underlying convictions, the § 924(c)(1) conviction.     Two

circuits have ruled that district courts have jurisdiction to

resentence on the unchallenged but related drug counts following

a successful § 2255 motion.    United States v. Hillary, No. 96-

7463, 1997 WL 61398, at *3 (4th Cir. Feb. 14, 1997)(finding

jurisdiction under § 2255 to resentence because "sentence" is not

 a discrete, offense specific term but an aggregate);     United

States v. Smith, 103 F.3d 531, 534-535 (7th Cir. 1996) (finding

jurisdiction under § 2255 by applying sentencing package

doctrine);   see also United States v. Binford, 1997 WL 91851 (7th

Cir. Mar. 4 1997) (same).   Based on the facts of this case, in

which the petitioner collaterally attacks only one of his

multiple convictions, which are interdependent for sentencing

purposes, we find that the district court did not err in

asserting jurisdiction to recalculate the aggregate sentence.

     Davis argues that the court's resentencing jurisdiction does

not apply to the unchallenged but related drug counts, as those



                                 5
counts were not before the district court under the § 2255

motion.   Davis further notes that while a district court may

resentence on all counts when one count is challenged on direct

appeal, the district court does not have the same authority to

resentence on collateral attack.     We find Davis' arguments

unpersuasive.

     Section 2255 of Title 28 states:
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.

. . . 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.



28 U.S.C. § 2255 (emphasis added).    The plain language of § 2255

does not support Davis' argument that in all circumstances, the

court is limited in its resentencing options to only the count

challenged in the motion.    Instead, the plain language does not

restrict the word "sentence" and authorizes the court to act "as

may appear appropriate."    Hillary, 1997 WL 61398, at *2.      Thus,

it confers upon the district court broad and flexible power in

its actions following a successful § 2255 motion.    See Andrews v.


                                 6
United States, 373 U.S. 334, 339 (1963);                     Woodhouse v. United

States, 934 F. Supp. 1008, 1012 (C.D. Ill. 1996);                         United States

v. Rowland, No. 93-379-01, 1996 WL 524090, at *3 (E.D. Pa. Sept.

16, 1996).

       While we do not read the language "correct the sentence" in

§ 2255 as narrowly as Davis does, that is, as limited to the

portion of the sentence directly associated with the vacated

conviction, some district courts apparently have held that they

lack jurisdiction to resentence on the unchallenged convictions

based on such language.             They have not rejected expressly,

however, the holding that we make today, finding jurisdiction

based on the interdependence of the counts for Guideline

sentencing purposes.3

       The interdependence of the vacated § 924(c) conviction and

the remaining drug offenses suggests that resentencing on all

counts is the only result consistent with the punishment

prescribed by law.           Following a § 924(c) conviction, the law

requires the imposition of a five year sentence to be served

consecutively to any other term of imprisonment associated with

an underlying drug count.              18 U.S.C. § 924(c)(1).             Thus, § 924(c)

clearly contemplates an aggregate sentence some five years longer

than that which would result from the underlying drug offense.


  3
      See, e.g., Warner v. United States, 926 F. Supp. 1387, 1398 & n.8 (E.D. Ark. 1996);
Gardiner v. United States, Crim. No. 4-89-1269(1) Civ. No. 4-96-251, 1996 WL 224798, at *1 (D.
Minn. May 3, 1996); Rodriguez v. United States, 933 F. Supp. 279, (S.D.N.Y. 1996).



                                              7
See Reyes v. United States, 944 F. Supp. 260, 263 (S.D.N.Y.

1996).     Moreover, under U.S.S.G. § 2D1.1(b)(1), the base offense

level for crimes involving drugs must be increased by two levels

if "a dangerous weapon (including a firearm) was possessed."

U.S.S.G. § 2D1.1(b)(1);    see Reyes, 944 F. Supp. at 263;      United

States v. Acosta, No. Crim.A. 90-323-01, 1996 WL 445351, at *5

(E.D. Pa. Aug. 5, 1996).    The Guidelines further direct that this

enhancement should not be applied when a sentence under § 924(c)

is also imposed.    U.S.S.G. § 2K2.4, Commentary Background.     In

fact, the Guidelines explicitly acknowledge that a conviction

under § 924(c)(1) "may affect the offense level for other

counts."    U.S.S.G. § 3D1.1 note 1;   Reyes, 944 F. Supp. at 263.

     Clearly, the § 924(c) offense and the underlying offense are

interdependent and result in an aggregate sentence, not sentences

which may be treated discretely.      See Reyes, 944 F. Supp. at 263.

If the district court were to vacate the term associated with the

§ 924(c) count and not resentence on the remaining counts, Davis

would not receive the two level enhancement required for the

remaining counts under the Sentencing Guidelines and his sentence

would not be in conformity with the law.       See U.S.S.G. §
2D1.1(b)(1);     Reyes, 944 F. Supp. at 263.    As the court in Mayes

v. United States, 937 F. Supp. 659, 661 (E.D. Mich. 1996),

stated, it would
indeed, [seem] odd that section 2255 would grant the
     district court the power to 'correct' the petitioner's
     sentence, yet require the court to leave in place a
     sentence that is undoubtedly incorrect, in that it no
     longer represents the seriousness of petitioner's


                                  8
       actions and no longer comports with the sentencing
       guidelines.



Mayes, 937 F. Supp. at 661.

       Moreover, resentencing on the entire aggregate sentence is

supported by the policy argument which gave rise to the

sentencing package doctrine, a doctrine usually applied on direct

appeal that allows resentencing on all counts when a multicount

conviction produces an aggregate sentence or "sentencing

package."4        Merritt v. United States, 930 F. Supp. 1109, 1113-14

(E.D.N.C. 1996). The sentencing package doctrine suggests that
when a defendant is found guilty on a multicount indictment,
     there is a strong likelihood that the district court
     will craft a disposition in which the sentences on the
     various counts form part of an overall plan. When a
     conviction on one or more of the component counts is

  4
        Davis suggests that the sentencing package doctrine and its rationale do not apply to
collateral attacks. Davis also argues that unlike on direct appeal, the defendant on a collateral
attack has an expectation in the finality of the sentence imposed on the unchallenged counts.
        We find this argument unpersuasive for three reasons. First, as the court noted in
Rowland, whether a sentence is a "package" is determined at time of sentencing and is not
determined by the form of the appeal. 1996 WL 524090, at *3. Second, the interdependence of
the counts and the resulting sentence eliminate any expectation of finality the defendant may have
had upon collateral attack, as an attack on one count affects the validity of the aggregate sentence.
Mayes, 937 F. Supp. at 661. Third, allowing resentencing only on direct appeal would create an
unacceptable windfall for habeas petitioners. Gordils v. United States, No. 89 Cr. 0395 (DNE), 95
Civ. 8034 (RPP), 1996 WL 614139, at *7 (S.D.N.Y. Oct. 23, 1996). As one court noted,

[t]he law cannot rationally subject prisoners who directly appeal their Section 924(c)
        sentences to the two level enhancement under Guidelines Section 2D1.1(b)(1)
        while exempting from Guidelines Section 2D1.1(b)(1) those who challenge their
        Section 924(c) sentences via habeas corpus. To do so would be to treat habeas
        petitioners as if they never possessed a firearm in the commission of their narcotics
        offense.

Id.



                                                  9
       vacated, common sense dictates that the 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, within the 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. 1989)

cert. denied, 493 U.S. 890.                   Thus, resentencing on direct appeal

or on collateral attack, allows the sentence to "accurately

reflect the judge's original intent regarding the appropriate

punishment for a defendant convicted of multiple offenses" and to

reflect the gravity of the crime.5                      Gordils, 1996 WL 614139, at

  5
         Appellant asserts as an alternative policy argument that a defendant may be deterred from
filing a § 2255 motion for fear of subjecting himself to greater punishment if the court's jurisdiction
to resentence extends to the unchallenged counts. Davis relies upon United States v. DeLeo, 644
F.2d 300, 301 (3d Cir. 1981), where the defendant filed a motion seeking to correct the court's
sentence pursuant to Fed.R.Cr.P. 35. The sentence included a term of imprisonment, probation,
and restitution in the amount of $5,000. Id. The defendant sought to correct only the amount of
restitution. Id. The district court agreed that a correction was required, but instead of lowering the
amount of restitution, the court substituted a $5000 fine in place of the challenged restitution
amount. Id. The court of appeals held that

[w]hen a defendant moves for correction of sentence under Rule 35, fairness demands that
       the district court's authority to 'correct' be limited to correction of the illegality.
       Otherwise, a defendant may be deterred from calling the court's attention to an
       error for fear of subjecting himself to greater punishment.

Id. at 302.
         While these are legitimate concerns when discussed in general terms, this case is
distinguishable from DeLeo. Davis, like DeLeo, contested one element of the sentence imposed.
See id. Davis, however, contested a count that was for sentencing purposes directly tied to the
other counts of his conviction. While vacating Davis' § 924(c) conviction directly affected the
validity of the remaining sentence under the Sentencing Guidelines and no longer accurately
reflected the intent of the sentencing judge, correcting the restitution in DeLeo did not affect the
legitimacy of the sentence in the same way. The fine did not have to be added to ensure that the
sentence was legally correct as the fine and restitution are not interdependent. See id. Thus,


                                                  10
*7.    The end result of this policy must be that "where a

sentencing judge imposed a multicount sentence aware that a

mandatory consecutive sentence is to be tacked on to it and the

mandatory sentence is later stricken, the judge is entitled to

reconsider the sentence imposed on the remaining counts."                                  Id.;

see also Thayer v. United States, 937 F. Supp. 662, 665-66 (E.D.

Mich. 1996)(applying sentencing package doctrine to resentencing

under § 2255);          United States v. Tolson, 935 F. Supp. 17, 20

(D.D.C. 1996)(same);             Merritt, 930 F. Supp. at 1114 (same).

       The district court's sentence constituted an aggregate

sentence that was based upon the proven interdependence between

the remaining counts and Davis' § 924(c) conviction.6                               See Reyes,

944 F. Supp. at 263;             Acosta, 1996 WL 445351, at *5.                    Once the §

924(c) conviction was vacated,                   the aggregate sentence was

undermined and was no longer in conformity with law.                               See

Gordils, 1996 WL 614139, at *8.                   Thus, based on the language of §

2255 and the interdependence of the multiple counts for


DeLeo does not conflict with the holding here, that when faced with interdependent convictions
the court has the authority to resentence on the remaining underlying charges.
  6
       A finding of an aggregate sentence for the interdependent counts is further substantiated by
the court's statement in its decision to resentence that:

[i]n sentencing Defendant after his conviction, the Court considered all of the counts for
        which he would be sentenced; the Court did not impose separate sentences without
        considering the overall sentence. In addition, the Court did not apply the two-level
        enhancement, due to the conviction under section 924(c).

See Davis, 1996 WL 466940, at *2.



                                                11
sentencing purposes, we hold that the district court had

jurisdiction to recalculate petitioner's entire sentence.




                          III.   Due Process

     Davis also argues that the resentencing constitutes a

violation of his due process rights.    A defendant's due process

rights may be violated "when a sentence is enhanced after the

defendant has served so much of his sentence that his

expectations as to its finality have crystallized and it would be

fundamentally unfair to defeat them."    United States v. Lundien,

769 F.2d 981, 987 (4th Cir. 1985), cert. denied, 474 U.S. 1064

(1986).   A defendant, however, does not automatically acquire a

vested interest in a shorter, but incorrect sentence.    DeWitt v.

Ventetoulo, 6 F.3d 32, 35 (1st Cir. 1993), cert. denied, 114

S.Ct. 1542 (1994).   It is only in an extreme case that a later

upward revision of a sentence is so unfair that it is

inconsistent with the fundamental notions of fairness found in

the due process clause.   Id.    We find that this is not such an

extreme case.   We thus hold that the district court did not err

in its finding of no due process violation.

     A growing majority of district courts faced with similar

facts have held that resentencing after a successful § 2255

motion vacating a § 924(c) conviction does not violate due

process as the defendants have no legitimate expectations of



                                  12
finality.7        Rowland, 1996 WL 524090, at *2;                     Acosta, 1996 WL

445351, at *5;           Tolson, 935 F. Supp. at 21;                   Merritt, 930 F.

Supp. at 1115.           The courts have generally relied on three factors

in finding a lack of a legitimate expectation of finality.

       First, the defendant himself challenged the § 924(c)

conviction and sentence, which as explained above, was closely

linked with the underlying drug offense.                          See Mayes, 937 F. Supp.

at 662;       Acosta, 1996 WL 445351, at *5.                     The interdependence of

the counts and the resulting aggregate sentence eliminate the

defendant's expectation of finality in that
[w]here the defendant challenges one of several
     interdependent sentences (or underlying convictions) he
     has, in effect, challenged the entire sentencing plan.
     . . . Consequently, he can have no legitimate
     expectation of finality in any discrete portion of the
     sentencing package after a partially successful appeal.



United States v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987), cert.

denied, 484 U.S. 956 (1987)(discussing in context of direct

appeal and double jeopardy claim).                       The same rationale has been

applied on collateral attacks.                    Mayes, 927 F. Supp. at 661-62


  7
        The district court in Warner concluded that resentencing violated the due process rights of
the defendant. 926 F. Supp. at 1395. In Warner the court ruled that it would violate due process
to include a two-level enhancement upon resentencing where the "defendant ha[d] completely
served a term of imprisonment that was, at the time of sentencing, lawfully imposed, and which was
also lawful at the time of its completion (and which was not rendered unlawful (if at all) until almost
a year after it was completed)." Id. at 1396. Thus, the holding of Warner appears limited to
defendants who have completed their sentences and thus have a legitimate expectation of finality.
We note that whether resentencing a defendant who has completed a sentence that was lawful at
the time entered violates due process has not been directly addressed in this Circuit. In any case,
Warner does not aid Davis as he had not completed his sentence.



                                                 13
(rejecting both due process and double jeopardy claims because

defendant had no expectation of finality);    Tolson, 935 F. Supp.

at 21 (same).   Davis challenged his § 924(c) conviction, one of

several interdependent counts resulting in an aggregate sentence.

As such, he has challenged the aggregate sentence and can have no

legitimate expectation of finality in any discrete portion of the

sentence.   Moreover, the relationship between U.S.S.G. §

2D1.1(b)(1) and 18 U.S.C. § 924(c) itself dilutes any reasonable

expectation that the drug count sentence was final and could not

be adjusted.    Tolson, 935 F. Supp. at 20.

     Second, a § 2255 petitioner can have no reasonable

expectation of finality as to his sentence when the petitioner

has not completed his term of imprisonment.    Acosta, 1996 WL

445351, at *4-5 (no due process violation when defendant has not

completed either the entire sentence imposed or the period of

supervised release on valid counts);    Merritt, 930 F.2d at 1114-

15 (no due process violation when defendant has not completed

entire sentence);    cf. Warner, 926 F. Supp. at 1396 (due process

prevents a court from resentencing a defendant who had completely

served a term of imprisonment).    Davis has no expectation of

finality as his aggregate sentence has not been served, nor has

he completed even the term of imprisonment for the valid counts

of the conviction.

     Third, Davis's expectation of finality is not harmed in this

situation as he faces a lower overall sentencing range than he



                                  14
faced at the original sentencing.    See Acosta, 1996 WL 445351, at

*5;   Merritt, 930 F. Supp. at 1115.   Courts have noted that even

in a collateral attack, due process is not offended when "some of

a defendant's individual sentences are increased, but his

aggregate sentence is reduced . . . ."   Rowland, 1996 WL 524090,

at *2 n.8 (quoting Kelly v. Neubert, 898 F.2d 15, 18 (3d Cir.

1990)(applied in direct appeal context)).   After vacating the §

924(c) count, the district court resentenced Davis to 95 months

imprisonment.   The new sentence is shorter than the original

sentence of 123 months.   Thus, the resentencing did not violate

Davis' due process rights as Davis did not have a reasonable

expectation of finality as to his sentence.

      Accordingly, we will affirm the decision of the District

Court.




                                15
