PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5616

STEVEN A. SILVERS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5708

STEVEN A. SILVERS,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-87-144-Y)

Argued: June 3, 1996

Decided: July 22, 1996

Before RUSSELL, HALL, and LUTTIG, Circuit Judges.

_________________________________________________________________

Dismissed in part, vacated in part and remanded by published opin-
ion. Judge Russell wrote the opinion, in which Judge Hall and Judge
Luttig joined.

_________________________________________________________________
COUNSEL

ARGUED: Gerald Chester Ruter, Baltimore, Maryland, for Appel-
lant. Andrew George Warrens Norman, Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A.
Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

In this appeal we are asked to determine whether, inter alia, a dis-
trict court, upon resentencing of a defendant pursuant to a successful
28 U.S.C. § 2255 motion, can sua sponte reinstate a previously-
vacated conspiracy conviction. Finding no Double Jeopardy concerns,
and noting that the Supreme Court recently cited to this practice with
approval in Rutledge v. United States, #6D 6D6D# U.S. ___, 116 S. Ct. 1241
(1996), we affirm that aspect of the district court's order. However,
the district court's restructuring of sentences on other counts, in such
a way as to reimpose sentences which were fully served, did violate
the Double Jeopardy Clause; hence, we vacate the resentencing order
and remand the case for imposition of a 15-year sentence for the rein-
stated conspiracy count.

I.

In February 1988, a jury found Silvers guilty of supervising a con-
tinuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848,
conspiracy to possess with intent to distribute cocaine in violation of
21 U.S.C. § 846, three counts of possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841, two counts of interstate travel
in aid of racketeering in violation of 18 U.S.C.§ 1952, and conspiracy
to defraud the United States in violation of 18 U.S.C. § 371. The dis-
trict court vacated Silvers' conviction for conspiracy to possess and
distribute cocaine because it was a lesser-included offense of the CCE
conviction. In April 1988, Silvers was sentenced to 35 years on the
CCE count, concurrent 15-year sentences on each of the possession
with intent to distribute counts, and concurrent 5-year sentences on
the remaining counts.

                    2
Silvers' convictions arose from his involvement in a large-scale
cocaine trafficking ring based in Miami, Florida, with distribution
networks in Maryland and elsewhere. The government's trial evi-
dence primarily concerned Silvers' involvement with this drug-
trafficking organization, and his coordination of two importations of
cocaine and marijuana from Colombia in the summer of 1985. As to
these latter transactions, the government's only witness was John
Gerant, a co-conspirator testifying under a grant of immunity. Gerant
is a licensed pilot and former Miami police officer who flew the drugs
into the United States. Gerant testified that Silvers was the controlling
force behind the drug organization. Based on this testimony, the jury
found Silvers guilty of supervising a CCE.

Over the next several years, the government continued its investi-
gation of this drug trafficking network. After further arrests and inter-
views with co-conspirators, the government realized that Gerant had,
in fact, perjured himself at Silvers' trial, and that Gerant was likely
the controlling force behind the major shipments of cocaine and mari-
juana from Colombia into the United States during the summer of
1985. The government subsequently prosecuted Gerant based upon
this new information. Gerant was convicted of, inter alia, supervising
a CCE. He received a 35-year sentence.

Silvers then filed the present § 2255 motion contending that his
CCE conviction must be vacated because it was procured through
Gerant's perjured testimony. Silvers contended that it was now clear
that Gerant was really the person who organized the 1985 drug ship-
ments. The district court agreed and ordered that Silvers was entitled
to a new trial on the CCE conviction. However, because Silvers'
previously-vacated conspiracy conviction no longer merged into a
CCE conviction, the court sua sponte reinstated Silvers' conspiracy
conviction.1

At resentencing, rather than merely vacating the 35-year sentence
for the CCE conviction and imposing a sentence for conspiracy, the
district court revisited Silvers' entire sentence, treating it as a pack-
_________________________________________________________________
1 The court first determined that Gerant's perjured testimony did not
affect Silvers' conviction for conspiracy to possess with intent to distrib-
ute cocaine.

                     3
age. The court noted that Silvers had already served about seven years
in prison, and that the maximum possible term available on the con-
spiracy count was 15 years. The court then imposed a 15-year sen-
tence for conspiracy to possess with intent to distribute cocaine, and
concurrent 15-year sentences on each of the three cocaine possession
with intent to distribute counts. But, to increase the sentence, the court
also resentenced Silvers to 5 years on each of the two interstate traf-
ficking counts to run concurrent with each other, but consecutive to
the conspiracy to possess with intent to distribute count, and an addi-
tional 5 years on the conspiracy to defraud the government count to
run consecutive to the two interstate trafficking counts. The net result
was that the district court imposed a 25-year sentence upon resentenc-
ing.

Silvers noted a timely appeal from this resentencing order, raising
several issues challenging the district court's authority to reinstate the
vacated conspiracy conviction on collateral attack, and to resentence
Silvers on counts which Silvers never challenged in his § 2255
motion. Silvers subsequently filed a Fed. R. Civ. P. 59 motion to alter
or amend the judgment. The district court denied this motion, con-
tending it did not have jurisdiction because of Silvers' timely appeal.
Silvers also noted an appeal from that order; both were consolidated
into this action.

II.

At the outset, we must address the propriety of the district court's
refusal to accept jurisdiction over Silvers' Fed. R. Civ. P. 59 motion,
which was filed after Silvers noted a timely appeal to this court. Sil-
vers contends the district court erroneously denied his Rule 59 motion
and, therefore, that we should remand for the district court's consider-
ation of that motion and refrain from exercising jurisdiction over his
timely-filed appeal from resentencing.

Under the 1993 amendments to the Federal Rules of Appellate Pro-
cedure, when a party files a timely notice of appeal followed by a
timely Rule 59 motion, the notice of appeal is tolled and does not
become effective to confer jurisdiction on the court of appeals until
the entry of an order disposing of the Rule 59 motion. Fed. R. App.
P. 4(a)(4), advisory committee's note. We agree with Silvers that,

                     4
based on the language of Rule 4, the district court erroneously con-
cluded that it could not exercise jurisdiction over his Rule 59 motion.
However, we disagree with Silvers over the impact of the district
court's ruling. Although the district court incorrectly refused to accept
jurisdiction over his Rule 59 motion, its order clearly "disposed" of
that motion. Under Rule 4, therefore, Silvers' previously filed notice
of appeal became effective and vested this court with jurisdiction to
hear his appeal from the district court's resentencing order.

Although we could decline to take jurisdiction over this case and
instead remand for the district court's consideration of Silvers' Rule
59 motion, we believe the underlying issues are ripe for our resolu-
tion. They were briefed by both parties and fully argued before this
panel of judges. Hence, although the district court's ruling on the
Rule 59 motion was erroneous, "it is difficult to see what principle
would be vindicated by sending this case on what would almost cer-
tainly be a brief round trip to the [district court]." Lyng v. Northwest
Indian Cemetery Protective Ass'n, 485 U.S. 439, 446 (1988). Accord-
ingly, we dismiss the appeal from the district court's denial of Silvers'
Rule 59 motion, and proceed to the merits of the case.

III.

We turn first to Silvers' contention that the district court errone-
ously reinstated his conviction and sentence for conspiracy to possess
with intent to distribute cocaine after vacating the CCE conviction.
Silvers takes issue with this action on appeal, arguing that because he
had a legitimate expectation of finality in his sentence, the district
court's action of reinstating the previously-vacated conviction sub-
jected him to punishment anew in violation of the Double Jeopardy
Clause.

A.

Silvers' argument is one of first impression in this court. However,
prior precedent from the Supreme Court and other circuits squarely
support the district court's action. The primary thrust of the Double
Jeopardy Clause is to protect a defendant from multiple punishments
or successive prosecutions for the same offense. North Carolina v.
Pearce, 395 U.S. 711, 717 (1969). "[W]here there is no threat of

                     5
either multiple punishment or successive prosecutions, the Double
Jeopardy Clause is not offended." United States v. Wilson, 420 U.S.
332, 344 (1975).

In Wilson, the Supreme Court held that reinstating a jury's verdict
of conviction on direct appeal, which the district court had errone-
ously vacated pursuant to the defendant's post-trial motion for judg-
ment of acquittal, did not violate the Double Jeopardy Clause. Id. at
353. The Court reasoned that such an act merely reinstated a jury's
prior verdict of conviction. Because reinstatement did not subject the
defendant to a new trial or multiple punishments, there were no dou-
ble jeopardy concerns. Id. at 344-45; accord United States v. Bjerke,
796 F.2d 643, 646 (3rd Cir. 1986) ("The Double Jeopardy Clause is
implicated only where there is a threat of multiple punishments or a
second prosecution. . . . Such is not the case where, as here, the appel-
late court is asked only to reinstate a vacated verdict."). And, the
Sixth Circuit, without comment, has done exactly what the district
court did here: reinstate a previously-vacated conspiracy conviction
after vacating a defendant's CCE conviction for insufficiency of the
evidence. United States v. Ward, 37 F.3d 243, 250 (6th Cir. 1994),
cert. denied, 115 S. Ct. 1388 (1995).

There is also abundant precedent supporting the analogous proposi-
tion that an appellate court on direct appeal may impose a conviction
for a lesser-included offense when it vacates a greater erroneous con-
viction, even though the jury did not render an express verdict on the
lesser offense. See, e.g., Morris v. Mathews, 475 U.S. 237, 246-47
(1986) (holding that court may reduce a jeopardy-barred conviction
to a conviction for a lesser-included offense that is not jeopardy-
barred, unless the defendant can show a reasonable probability that he
would not have been convicted of the nonjeopardy-barred offense
absent the presence of the jeopardy-barred offense); United States v.
Dinkane, 17 F.3d 1192, 1198-99 (9th Cir. 1994) (holding that trial
court may enter a judgment of conviction for lesser-included unarmed
bank robbery where evidence was insufficient to support actual con-
viction for greater offense of armed bank robbery); Dickenson v.
Israel, 482 F. Supp. 1223, 1226 (E.D. Wisc. 1980) (same). This prac-
tice does not violate the Double Jeopardy Clause because, in essence,
the defendant is not subjected to multiple punishment; rather, he is
placed in exactly the same position in which he would have been had

                     6
there been no error in the first instance. Such is Silvers' predicament.
By reinstating the conspiracy conviction, the district court avoided
giving Silvers a windfall and placed him in exactly the same position
he would have been in had he not been erroneously convicted of the
CCE count in the first instance.

B.

Silvers asks us to distinguish his case on the ground that the district
court reinstated the previously-vacated conviction on collateral attack,
not on direct appeal. Silvers concedes it would not have violated the
Double Jeopardy Clause for a reviewing court on direct appeal to
vacate his CCE conviction and reinstate the conspiracy conviction.
However, once he exhausted his direct appeal, Silvers contends he
then had an expectation of finality in his conviction and sentence that
barred reinstatement of previously-vacated convictions on collateral
attack.

We believe that in the present context, Silvers is asking us to exalt
form over substance and draw a distinction without a difference. The
Supreme Court has expressly rejected the notion that an expectation
of finality accrues in all cases at a fixed point in time: "the Double
Jeopardy Clause does not provide the defendant with the right to
know at any specific moment in time what the exact limit of his pun-
ishment will turn out to be." United States v. DiFrancesco, 449 U.S.
117, 137 (1980). Based on DiFrancesco, we decline to declare a rul-
ing which would provide defendants bright-line protection under the
Double Jeopardy Clause at the point they exhaust their direct appeals.
Instead, as we have previously-enunciated, the appropriate inquiry
from DiFrancesco is whether at a particular point in time, the defen-
dant has a legitimate expectation of finality in his sentence. United
States v. Bello, 767 F.2d 1065, 1070 (4th Cir. 1985).

Even with the passage of seven years, we fail to see how Silvers
can claim a legitimate expectation that the district court's earlier vaca-
tion of his conspiracy conviction was final, when he was in the pro-
cess of challenging the existence of the conviction upon which that
vacation was based. The cases upon which Silvers relies disprove his
own reasoning and lead us to the opposite conclusion. For instance,
in United States v. Cochran, 883 F.2d 1012 (11th Cir. 1989), Cochran

                     7
was originally sentenced to 30 years' imprisonment for four drug con-
victions. He received 15 years on each count to run concurrent to each
other, with an additional 15-year statutory enhancement on each
count. On collateral attack, Cochran successfully argued that the dis-
trict court erred in imposing the statutory enhancement. At resentenc-
ing, Cochran expected the district court to vacate the enhancement
and impose a total 15-year sentence. Instead, the district court
replaced Cochran's sentence with a package of unenhanced concur-
rent and consecutive sentences totalling 25 years. Id. at 1014.

On appeal, the Eleventh Circuit considered whether, on collateral
attack, revisiting those aspects of Cochran's sentences that were
unchallenged violated the Double Jeopardy Clause. Similar to Silvers'
contention, Cochran argued that he had a legitimate expectation that
he would receive concurrent 15-year sentences and that the Double
Jeopardy Clause protected that expectation. The court rejected this
claim for two reasons. First, it noted that the Double Jeopardy Clause
protects a defendant's legitimate expectation of finality in the length
of sentence by prohibiting, in some cases, an increase in a defendant's
sentence in a second proceeding. Cochran, however, suffered no
greater jeopardy on resentencing because the district court actually
decreased the overall sentence from 30 to 25 years. Id. at 1017. Sec-
ond, despite that this was a collateral attack case, Cochran could have
no legitimate expectation of finality in his sentence because he
requested that the prior sentence be nullified."[Cochran] has, by his
own hand, defeated his expectation of finality, and`the Double Jeop-
ardy Clause, which guards against Government oppression, does not
relieve a defendant from the consequences of his voluntary choice.'"
Id. (quoting United States v. Scott, 437 U.S. 82, 99 (1978)).2
_________________________________________________________________
2 Silvers also cites United States v. Henry, 709 F.2d 298 (5th Cir. 1983)
(en banc), and the following two cases from the Eleventh Circuit, one of
which was rendered by the former Fifth Circuit before it was divided into
the Eleventh and Fifth Circuits in 1981: United States v. Rosen, 764 F.2d
763 (11th Cir. 1985), cert. denied, 474 U.S. 1061 (1986); United States
v. Chandler, 468 F.2d 834 (5th Cir. 1972). To the extent any of these
cases can be read to stand for the proposition that a district court violates
double jeopardy on resentencing from a successful collateral attack if it
sentences on counts outside of those challenged, we think it clear they
were overruled by DiFrancesco and Cochran. In fact, the Eleventh Cir-
cuit explicitly called into question their continued vitality in light of later
Eleventh Circuit and Supreme Court precedents. Cochran, 883 F.2d
1015-16 n.6.

                    8
We find the reasoning in Cochran persuasive and consistent with
DiFrancesco and our holding in Bello. Like Cochran, Silvers does not
have a valid claim that the district court violated the Double Jeopardy
Clause. Even after resentencing, Silvers' total sentence was reduced
from 35 to 25 years. Additionally, as previously stated, it is disingen-
uous for Silvers to argue that he had a legitimate expectation of final-
ity in his sentence merely because his claim was raised on collateral
attack, when he challenged the greater offense upon which that vaca-
tion was solely based. We see no reason to relieve Silvers from the
consequences of his voluntary choice merely because his challenge
was successful on collateral attack rather than on direct appeal.

Moreover, we cannot ignore the curious posture of this case. While
Silvers' appeal was pending, the United States Supreme Court
decided Rutledge v. United States, #6D6D 6D# U.S. ___, 116 S.Ct. 1241
(1996), in which the Court cited with approval the very order now
before us:

          Consistent with the views expressed by the D.C. Circuit,
          federal appellate courts appear to have uniformly concluded
          that they may direct the entry of judgment for a lesser
          included offense when a conviction for a greater offense is
          reversed on grounds that affect only the greater offense. See
          8A J. Moore, Federal Practice ¶ 31.03[5], and n. 54 (2d ed.
          1995); United States v. Ward, 37 F.3d 243, 251 (CA6 1994)
          (after finding insufficient evidence to support the CCE
          count, Court of Appeals vacated CCE conviction and sen-
          tence and remanded for entry of conspiracy conviction,
          which District Court had previously vacated as lesser
          included offense of CCE), cert. denied, 514 U.S. ___
          (1995); UNITED STATES V. SILVERS, 888 F. Supp. 1289, 1306-
          1309 (ND [sic] Md. 1995) (reinstating conspiracy convic-
          tion previously vacated after granting motion for new trial
          on CCE conviction). This Court has noted the use of such
          practice with approval. Morris v. Mathews , 475 U.S. 237,
          246-247 (1986).

Id. at 1250 (emphasis added). While that aspect of the Court's opinion
was dictum, even Silvers' counsel conceded at oral argument that the
Supreme Court's express ratification of the district court's action is

                    9
highly persuasive support for its constitutionality. We agree and con-
clude that the district court's action of reinstating Silvers' previously-
vacated conspiracy conviction, after vacating his CCE conviction on
grounds that did not affect the conspiracy conviction, was appropriate
and did not violate the Double Jeopardy Clause.

IV.

We turn next to Silvers' challenge to the district court's reimposi-
tion of sentences for convictions upon which Silvers had already
served the entire sentence. We agree that this practice violated the
Double Jeopardy Clause.

In DiFrancesco, 449 U.S. at 133, the Supreme Court made clear
that a criminal sentence is not to be afforded the finality and conclu-
siveness accorded an acquittal. Accordingly, to determine a double
jeopardy violation in the context of increases in sentences, the focus
turns to whether the defendant had a legitimate expectation of finality
in his sentence. Bello, 767 F.2d at 1070. Although an expectation of
finality does not legitimately accrue by the mere commencement of
the sentence, once a defendant fully serves a sentence for a particular
crime, the Double Jeopardy Clause's bar on multiple punishments
prevents any attempt to increase thereafter a sentence for that crime.
See Ex Parte Lang, 18 Wall. 163 (1874) (holding that double jeop-
ardy was violated by resentencing of defendant who had fully served
one of two alternative sentences); United States v. Lundien, 769 F.2d
981, 984-85 (4th Cir. 1985) (recognizing that court cannot reimpose
sentence once defendant has fully served a lawful sentence for his
crimes), cert. denied, 474 U.S. 1064 (1986).

By the time of Silvers' resentencing on his § 2255 motion, he had
served approximately seven years' imprisonment. Accordingly, he
had fully served all five-year sentences for both counts of interstate
trafficking and one count of conspiracy to defraud the United States.
All of these sentences were imposed concurrent to each other and to
Silvers' original 35-year CCE conviction. Nonetheless, at resentenc-
ing, the district court reimposed these sentences, running two of them
consecutive to a 15-year sentence for conspiracy to possess with
intent to distribute cocaine so as to achieve a total sentence of 25
years. As the government concedes, reimposition of sentence on

                     10
counts upon which Silvers had fully satisfied his sentence violated the
Double Jeopardy Clause.

Accordingly, we vacate the district court's resentencing order and
remand this case for resentencing with directions to the district court
to impose a 15-year concurrent sentence for the reinstated conspiracy
conviction.

V.

In light of our holding vacating the district court's resentencing
order and remanding for reimposition of sentence, we need not
address Silvers' other arguments on appeal.3

No. 95-5616 - VACATED AND REMANDED

No. 95-5708 - DISMISSED
_________________________________________________________________
3 One of the several arguments Silvers raised on appeal is his conten-
tion that the original sentencing court committed reversible error when
it forfeited his residence without adhering to the requirements of the
criminal forfeiture statute, 21 U.S.C. § 853. This issue is not properly
before us. The original sentencing order is not part of this appeal, and
Silvers did not raise a forfeiture argument in the present § 2255 motion.
We note, however, that the propriety of the forfeiture is currently pend-
ing before this court in an appeal from the denial of a pro se § 2255
motion filed by Silvers. That appeal is docketed as No. 95-6975.

                     11
