
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-2150                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ISIDRO RODRIGUEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________               Bjorn Lange, Federal Defender Office, for appellant.               ___________               Jean B. Weld, Assistant United States Attorney, with whom               ____________          Paul M. Gagnon, United States Attorney, and Peter E. Papps,          ______________                              ______________          Assistant United States Attorney, were on brief, for appellee.                                 ____________________                                    April 30, 1997                                 ____________________                      LYNCH, Circuit Judge.  This case raises an issue of                      LYNCH, Circuit Judge.                             _____________            significance  in the administration  of criminal justice, one            of first impression for this court.  It concerns the power of            a district court  to resentence on  the counts of  conviction            remaining  after  the  sentence  on another  count  has  been            vacated on a petition under 28 U.S.C.   2255.                        Isidro Rodriguez was  originally convicted in  1993            on four cocaine trafficking counts,  see 21 U.S.C.    841(a),                                                 ___            for which he received  a sentence of sixty-three months,  and            on one  count of using  or carrying a  firearm during and  in            relation  to a  drug trafficking  crime,  in violation  of 18            U.S.C.      924(c),  for  which  he   received  a  mandatory,            consecutive sentence of sixty months.  Those convictions were            affirmed  on appeal.  See United States v. Rodriguez, 29 F.3d                                  ___ _____________    _________            619 (1st Cir. 1994) (per curiam).                      On December  6,  1995, the  Supreme  Court  decided            Bailey  v.  United States,  116 S.  Ct.  501 (1995).   Bailey            ______      _____________                              ______            clarified the  definition  of the term  "use" in 18 U.S.C.               924(c), changing the  law in  this and  many other  circuits.            Id.  Relying on Bailey, Rodriguez filed a pro se motion under            ___             ______                    ___ __            28 U.S.C.   2255,  seeking to vacate his conviction  on the              924(c)  firearms  count.     The  government  conceded   that            Rodriguez's conviction  on that  count could not  stand after            Bailey.             ______                                         -2-                                          2                      On March  1, 1996, the district  court ordered that            Rodriguez's  conviction and sentence on the   924(c) count be            vacated,    thereby  eliminating the  mandatory,  consecutive            five-year sentence.  Rodriguez remains in the custody of  the            Bureau of Prisons as he has not finished serving his sentence            for the drug trafficking counts.                       The  district court appointed counsel to represent            Rodriguez  and directed the  parties to address  the issue of            whether Rodriguez  could be  resentenced on the  drug counts.            The court also ordered  a revised presentence report ("PSR").            After briefing  and argument,  the district court  ruled that            Rodriguez's  sentence on  the firearms  count was  part of  a            sentencing  calculus based  on the  relationship between  the            various   counts.     The   court  concluded   that  it   had            jurisdiction, under    2255  and First Circuit  precedent, to            resentence  Rodriguez on  the drug  trafficking counts.   The            district  court   accepted   the  factual   conclusions   and            Guidelines  application  of the  revised  PSR, including  the            PSR's recommendation of a  two-level increase for  possession            of a dangerous weapon during a drug offense.   This yielded a            total  offense level  of 28,  and a  corresponding sentencing            range of seventy-eight to  ninety-seven months.  The district            court  resentenced Rodriguez to  seventy-eight months  on the            drug  trafficking counts.    That is  less than  his original                                         -3-                                          3            total sentence on all counts of 123 months, but more than his            original sentence of sixty-three months for the drug counts.                      Rodriguez  argues that  the  district court  simply            lacked  jurisdiction  to resentence  him  and, further,  that            doing  so  violated  his right  not  to  be  placed twice  in            jeopardy for the same offense and his right to due process of            law.                      Rodriguez's argument is complicated for  him by the            fact  that, under  the  Sentencing Guidelines,  there was  an            explicit interaction  between the sentence  he was originally            given  on the  drug trafficking  counts  and the  sentence he            received  on the  firearms count.   The  Guidelines direct  a            sentencing  judge  to  increase   the  sentence  for  a  drug            trafficking offense by two  levels where the offense involves            the possession  of a  dangerous weapon, including  a firearm.            See  U.S.S.G.     2D1.1(b)(1).    However,  to  avoid  double            ___            counting, the Guidelines do not permit such an enhancement of            the drug  sentence if the  defendant has also  been convicted            under certain  statutes, including 18 U.S.C.    924(c), which            provide  a  mandatory  minimum  penalty  for  weapons-related            conduct.   U.S.S.G.   2K2.4  (comment. n. 2  & backg'd).  For            example, if the jury had acquitted Rodriguez of the  firearms            offense  under  18  U.S.C.      924(c),  but  the  judge  had            nonetheless found,  by a preponderance of  the evidence, that            Rodriguez  possessed a  firearm during  the drug  crimes, the                                         -4-                                          4            judge  should  have,  under  the  Guidelines,  increased  the            sentence for the drug offenses.                      The  district court  judge apparently  thought that            this resentencing  was similar to that  hypothetical case and            so enhanced the  sentence for the drug offenses.  This is, of            course, an approach abundant with common sense.  It also fits            with the  notion that, where there  are multiple convictions,            the various sentences form a  package meant to work  together            and  if part  of the  package of  convictions is  undone, the            trial judge ought to be free to reconsider how all the pieces            should fit together,  in order to do justice and  to meet the            requirements of the Guidelines.                       But  such a  common sense  approach to  the problem            must fairly meet Rodriguez's objections that Congress did not            grant jurisdiction  to resentence and that  such an approach,            writ  broadly, poses  far  from hypothetical  dangers to  the            constitutional rights  of a criminal  defendant.  Rodriguez's            assertion  is that to increase a sentence as a consequence of            a defendant's successful challenge to one count of conviction            penalizes  the exercise of the right to collaterally attack a            conviction.    Such  a sentencing  enhancement  deprives  the            prisoner of his settled expectations about the length of  his            sentence,   and   violates   the   rule,   embedded  in   our            jurisprudence,  that a  defendant only  be sentenced  for the            crimes of which he is convicted.                                         -5-                                          5                      Rodriguez  starts with  an  argument  that  federal            trial  courts have  only  such jurisdiction  as Congress  has            granted and that there is no grant of jurisdiction to revise,            on  collateral attack,  a  sentence that  has already  become            final.  Rodriguez argues  that Congress has expressly limited            a court's  ability to modify  an already imposed  sentence to            the three situations outlined in 18 U.S.C.   3582(c).  Two of            the circumstances described in that  section are inapplicable            here,  and  so,  he contends,  the  district  court  may only            resentence him to the  extent "expressly permitted by statute            or  by Rule 35 of  the Federal Rules  of Criminal Procedure."            18 U.S.C.   3582(c)(1)(B).                      On direct appeal (in contrast to the   2255  review            here),  this  court has  permitted  resentencing  for a  drug            trafficking conviction where  defendant's   924(c) conviction            was set aside, post-Bailey:                                ______                      Since   it   is   conceivable  that   our                      disposition of the [firearms] count might                      affect the sentencing calculus  in regard                      to the [drug trafficking] count, we honor                      counsels' joint request and remand to the                      district      court     for      possible                      reconsideration    of     the    sentence                      originally    imposed    on   the    drug                      trafficking count.            United States v. Valle, 72 F.3d 210, 218 (1st Cir. 1995).  At            _____________    _____            least  seven other circuits  have similarly  determined that,            when a conviction  under    924(c) is reversed  on appeal  in                                                            __ ______            light  of Bailey, it is appropriate to remand to the district                      ______                                         -6-                                          6            court  for resentencing  on the  remaining convictions.   See                                                                      ___            United States  v.  Jackson,  103  F.3d  561,  569  (7th  Cir.            _____________      _______            1996)(citing cases).                      Rodriguez concedes that such resentencing on remand            after direct  appeal may be  appropriate because 28  U.S.C.              2106 permits the appellate  court to "affirm, modify, vacate,            set aside or reverse any judgment . . . brought before it for            review"  and to  "remand the  cause and  . .  .  require such            further  proceedings to  be  had as  may  be just  under  the            circumstances."    28  U.S.C.    2106.    But that  statutory            language  is inapplicable here, Rodriguez argues, because the            drug trafficking convictions in this case have already become            final after appeal;  thus,   2106's  broad grant of  remedial            power  to the appellate court  cannot be read  to empower the                          _________            district court on  a   2255 motion.  Rodriguez further argues            that his    2255  motion only sought  review of his    924(c)            sentence  and  convictions,  and  that  his  drug trafficking            sentence is therefore not properly "before" any court.                       We  agree  with  the  basic  tenet  of  Rodriguez's            argument:  courts  are not  free  to  resentence  at will;  a            statute  or  Rule  35  must authorize  such  an  exercise  of            jurisdiction.   See United States  v. Fahm, 13  F.3d 447, 453                            ___ _____________     ____            (1st  Cir. 1994)  (district  court lacked  inherent power  to            "correct"  a sentence  other than  as expressly  permitted by            Rule 35).                                         -7-                                          7                      However,  Rodriguez's  argument  fails because  the            language  of 28 U.S.C.    2255 expressly vests  some power in            the district court:                      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).                      This grant of power to "correct the sentence as may            appear appropriate" resolves the jurisdictional issue against            Rodriguez.   In  this,  we agree  with  the Fourth  Circuit's            decision in  United States v.  Hillary, 106  F.3d 1170,  1172                         _____________     _______            (4th Cir. 1997)  and the Seventh Circuit's decision in United                                                                   ______            States v. Binford, 108 F.3d 723, 728-29 (7th Cir. 1997).              ______    _______                      This  still  leaves  the  question of  when  it  is            "appropriate" to "correct the sentence."  In United States v.                                                         _____________            Smith,  103 F.3d  531 (7th  Cir.  1996), the  Seventh Circuit            _____            ruled in favor of the exercise of jurisdiction to correct the            remaining drug  trafficking sentence  where a prisoner,  on a            motion  under    2255,  succeeded in  vacating his  mandatory            consecutive five-year   924(c) sentence.  The Seventh Circuit            found it "appropriate" to correct the sentence, because "[i]f                                         -8-                                          8            a  multicount sentence is a package  . . . then severing part            of the total sentence usually will unbundle it."  Id. at 534.                                                              ___                      The Seventh  Circuit further noted,  and we  agree,            that  the  question of  the  "appropriate"  exercise of  that            jurisdiction  cannot turn  entirely on  older  conceptions of            "sentencing  packages" but  must consider  the effect  of the            Sentencing  Guidelines.  See id.  at 534-35.  "The Sentencing                                     ___ ___            Reform  Act  of  1984  revolutionized  the  manner  in  which            district  courts   sentence  persons  convicted   of  federal            crimes."  Burns v.  United States, 501 U.S. 129,  132 (1991).                      _____     _____________            We  also agree  with the  Seventh Circuit's  conclusion that,            while the Guidelines have altered  the idea of the sentencing            package, they have  not eliminated the  concept.  Smith,  103                                                              _____            F.3d. at 534.                      In a pre-Guidelines  case, this court both  adopted            the  concept of  the  sentencing package  and suggested  some            limits to its applicability.   In United States v.  Pimienta-                                              _____________     _________            Redondo, 874 F.2d 9 (1st Cir. 1989) (en banc), the defendants            _______            received consecutive  sentences for convictions on two counts            of  drug trafficking.  On  appeal, this court  ruled that the            two  counts  of  conviction  actually  constituted  a  single            offense, reversed  the defendants' convictions on  one of the            counts,  and remanded for resentencing on the second.  Id. at                                                                   ___            11-12.  The district court then resentenced the defendants on            the remaining count  to a term as long as  the combined total                                         -9-                                          9            of the prior, consecutive  sentences on both counts.   Id. at                                                                   ___            12.   Defendants again  appealed. The en  banc court rejected            defendants' double   jeopardy  and due process  challenges to            the resentencing, holding that:                      [a]fter  an  appellate court  unwraps the                      [sentencing] package and  removes one  or                      more  charges  from  its   confines,  the                      sentencing judge, herself, is in the best                      position  to assess  the  effect  of  the                      withdrawal and to redefine  the package's                      size and shape . . . .            Id. at 14.  In light of the  concurring opinion of then-Judge            ___            Breyer  and  Judge  Campbell, Pimienta-Redondo's  "sentencing                                          ________________            package" holding  should be confined to  situations where the            same basic course of conduct underlies both the vacated count            and the count on  which the conviction is affirmed,  and that            basic conduct  determines the sentence.   Id. at  17 (Breyer,                                                      ___            J., concurring).                        In  this case, the  Guidelines establish  a similar            relationship of interdependence between the vacated count  of            conviction,  the affirmed  count of  conviction, and  the new            sentence:  Both Rodriguez's conviction under   924(c) and the            enhancement imposed in resentencing  him turn on the presence            of a weapon  during a drug trafficking  offense.  Rodriguez's                                  _________________________            conviction  for that  basic course  of conduct  was affirmed.            The Guidelines  require  sentencing judges  to consider  "all            acts  and omissions . . . that occurred during the commission            of  the  offense  of  conviction  .   .  .  ."    U.S.S.G.                                            -10-                                          10            1B1.3(a)(1).  Thus,  under both the  Guidelines and our  pre-            Guidelines precedent, Rodriguez's sentence may  be considered            as a "sentencing package."                        Rodriguez  argues  that,   because  the      924(c)            firearms sentence was consecutive, it is not part of the same            "sentencing package"  as his  drug trafficking sentence.   He            relies  on  U.S.S.G.    5G1.2,  which  governs sentencing  on            multiple counts of conviction, and provides:                      (a) The sentence to be imposed on a count                      for   which   the   statute  mandates   a                      consecutive sentence  shall be determined                      and imposed independently.            U.S.S.G.     5G1.2.   That the  firearms  sentence had  to be            calculated independently  does not mean that  the sentence on            the  drug  counts did  not depend  on  the existence  of that            sentence;  to  the contrary,  the Guidelines  specify such  a            relationship. See U.S.S.G.   2K2.4, comment. (n.2 & backg'd).                          ___            Thus,  we  hold that,  where  the  Guidelines contemplate  an            interdependent  relationship between  the  sentence  for  the            vacated  conviction  and  the  sentence   for  the  remaining            convictions -- a sentencing package1 -- a district court may,            on  a  petition under  28 U.S.C.     2255, resentence  on the                                            ____________________            1.  To the extent that the Seventh Circuit's opinions in            Smith and Binford can be read to permit resentencing whenever            _____     _______            there is a sentencing package, and to define a "sentencing            package" as "the bottom line, the total number of years (or            under the guidelines, months) which effectuates a sentencing            plan," Smith, 103 F.3d at 533, we part company and find it                   _____            unnecessary to state so broad a rule.                                          -11-                                          11            remaining convictions.2  We leave to another day the question            of whether there is such authority when the Guidelines do not            contemplate such an interdependent sentencing package.3                        Rodriguez's  two  constitutional  claims   fare  no            better  than  does his  jurisdictional  claim.   Because  the            consideration of  acquitted conduct in fashioning  a sentence            does not,  absent special  circumstances, violate  either the            Due Process or the Double Jeopardy Clause,  see United States                                                        ___ _____________            v.  Watts, 117 S.  Ct. 633, 636-37 (1997),  the fact that the                _____            district court considered the conduct underlying the  vacated            conviction  in enhancing  the sentence  for the  drug offense            does not in itself  violate the Constitution.  To  the extent            that  there are  valid  due process  concerns about  possible            vindictiveness  on resentencing, the  safeguards announced by            the Supreme Court in  North Carolina v. Pearce, 395  U.S. 711                                  ______________    ______            (1969), and  applied by  this court in  Pimienta-Redondo, 874                                                    ________________            F.2d  at 12-14, adequately  address this  problem.   See also                                                                 ___ ____            United  States  v. Twitty,  104 F.3d  1,  2 (1st  Cir. 1997);            ______________     ______            United States v.  Clark, 84  F.3d 506  (1st Cir.)  (outlining            _____________     _____            contours   of   Pearce   presumption    of   vindictiveness),                            ______            cert. denied,  117 S. Ct. 272  (1996).  On  the facts of this            _____ ______                                            ____________________            2.  There may be occasions where the authority to resentence            works in a defendant's favor.  There may be occasions where            the trial judge believes the interrelationship requires a            reduction in the remaining sentence.              3.  The Sentencing Commission may wish to address this topic.                                         -12-                                          12            case, no claim of vindictiveness has been, or could be, made.                      There  is another  theory  that Rodriguez  advances            under the Due Process Clause.  Relying on Breest v. Helgemoe,                                                      ______    ________            579  F.2d  95 (1st  Cir.  1978),  he argues  that  he was  "a            substantial  period of time" -- more than three years -- into            his  sentence  when  he  was  resentenced,  and  that  it  is            "fundamentally unfair, and thus  violative of due process for            a  court to alter  even an  illegal sentence  in a  way which            frustrates a prisoner's expectations by postponing  his . . .            release  date far beyond that  originally set."   Id. at 101.                                                              ___            Here, Rodriguez's  new release date  is still more  than four            years   earlier  than   his   original   release  date;   the            psychological unfairness  described in Breest is  thus not an                                                   ______            issue here.  We acknowledge that, on other facts, due process            concerns could be raised.4                                            ____________________            4.  We have said that there may be limits on the right to            correct an erroneous sentence in cases "with extreme facts:             a long delay, actual release of the defendant from custody            based on the shorter sentence, singling out of the defendant            for a belated increase apparently because of his commission            of another offense for which parole revocation would have            been available, and other troubling characteristics."  United                                                                   ______            States v. Goldman, 41 F.3d 785, 789 (1st Cir. 1994); see also            ______    _______                                    ___ ____            DeWitt v. Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993)(noting            ______    __________            that there is "no single touchstone" for determining if delay            in resentencing is inconsistent with the Due Process Clause            and listing considerations including the lapse of time, the            reasonableness of defendant's expectations, prejudice, and            diligence exercised by the state).  Delay may, in future            cases, be less of an issue because of the strict time limits            that 28 U.S.C.   2255 now imposes on the filing of petitions.                                         -13-                                          13                      We  think  that,  given  the  language  of     2255            discussed earlier  and the  fact that Rodriguez  is still  in            custody,  he could  have no  settled expectation  of finality            with  respect to a portion of his total sentence which, under            the   Guidelines,  is     part   of  a   sentencing  package.            Accordingly,  there is  no violation  of the  Double Jeopardy            Clause here.  This case does not involve a petitioner who had            already   fully   discharged  his   sentence  and   then  was            resentenced, see  United States v.  Silvers, 90 F.3d  95, 101                         ___  _____________     _______            (4th Cir. 1996),  and we  intimate nothing  about the  double            jeopardy consequences of such a situation.5  Cf. Hillary, 106                                                         ___ _______            F.3d at 1173.                      Affirmed.                       _________                                            ____________________            5.  This scenario is not farfetched.  Sometimes a case takes            such time to wend its way through the court system that the            prisoner is released by the time it is resolved.  And,            because convictions carry collateral consequences even after            incarceration has ended, appeals may be brought after release            in an effort to avoid those consequences.  See Ball v. United                                                       ___ ____    ______            States, 470 U.S. 856, 864-65 (1985).            ______                                         -14-                                          14
