                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-1996

United States v. Goggins
Precedential or Non-Precedential:

Docket 96-3154




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"United States v. Goggins" (1996). 1996 Decisions. Paper 65.
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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                            No. 96-3154


                      UNITED STATES OF AMERICA

                                v.

                        DAMOND GREG GOGGINS,

                                                             Appellant


         On Appeal from the United States District Court
             for the Western District of Pennsylvania
                   (D.C. Crim. No. 95-00048-3)


          Submitted under Third Circuit Rule LAR 34.1(a)
                         October 10, 1996

         BEFORE:   MANSMANN and GREENBERG, Circuit Judges,
                    and HILLMAN, District Judge*

                      (Filed:October 30, 1996)


                                Shelley Stark
                                Federal Public Defender
                                W. Penn Hackney, First
                                Asst. Federal Public
                                Defender
                                Karen Sirianni Gerlach
                                Asst. Federal Public
                                Defender
                                415 Convention Tower
                                960 Penn Avenue
                                Pittsburgh, PA 15222

                                      Attorneys for Appellant

                                Frederick W. Thieman
                                United States Attorney
                                Bonnie R. Schlueter
                                Assistant U.S. Attorney



* Honorable Douglas W. Hillman, Senior Judge of the United
 States District Court for the Western District of Michigan,
 sitting by designation.
                               Gregory J. Nescott
                               Assistant U.S. Attorney
                               633 U.S. Post Office &
                               Courthouse
                               Pittsburgh, PA 15219

                                     Attorneys for Appellee


                       OPINION OF THE COURT


GREENBERG, Circuit Judge.
          Appellant Damond Goggins appeals from a judgment of
conviction and sentence in this criminal case. He limits his
appeal to the contention that the district court improperly
imposed a 2-level enhancement of his sentencing level under
U.S.S.G. § 2D1.1(b)(1) ("section 2D1.1(b)(1)") for possession of
a firearm. The issue before us is whether the court was barred
from imposing this enhancement by the circumstance that the court
previously had sentenced Goggins to a later vacated five-year
sentence for using and carrying a firearm during and in relation
to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)
("section 924(c)(1)").

              I. Background and Procedural History
          The case originated with Goggins's arrest on August 10,
1994, when the police, while executing a search warrant in
Pricedale, Pennsylvania, found him lying on a bed with a loaded
firearm in a bedroom in which there also was a substantial
quantity of cocaine base. The ensuing procedural steps in the
case had a routine start but later took an unusual turn. A grand
jury indicted Goggins for possession with intent to distribute in
excess of five grams of cocaine base in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(iii) and for using and carrying a
firearm during and in relation to a drug trafficking crime in
violation of section 924(c)(1). Goggins pleaded guilty to both
counts of the indictment. The district court calculated his
total offense level as 23 and his criminal history category as
IV. These calculations yielded a sentencing range of 130 to 147
months because of the requirement in section 924(c)(1) that the
court impose a five-year sentence on that charge consecutive to
the sentence on the drug possession count. The court sentenced
Goggins to a 130-month term divided between 70 months on the
possession charge and 60 months on the weapons offense. The
government did not urge that the court increase his sentencing
level for possession of a firearm pursuant to section 2D1.1(b)(1)
and the court did not do so. Goggins then appealed.
          While the appeal was pending the Supreme Court decided
Bailey v. United States, 116 S.Ct. 501 (1995), in which it held
that section 924(c)(1) requires "active employment" of a firearm
and not mere "proximity and accessibility" during the drug
trafficking offense. Id. at 505. Goggins and the government
agreed that Goggins's conduct did not violate section 924(c)(1)
as construed in Bailey. Consequently they stipulated that the
appeal would be dismissed in order that Goggins could move in the
district court to vacate his conviction under section 924(c)(1)
so that his sentence could be reduced by five years. The
parties, however, could not agree on whether section 2D1.1(b)(1)
would be applicable on the resentencing and thus they did not
make a stipulation on that point. On December 29, 1995, in
accordance with the stipulation, we dismissed the appeal.
          Goggins then moved in the district court to vacate the
sentence and on March 6, 1996, the district court entered an
order vacating the sentence. The district court also ordered
that the parties file briefs on the question of whether section
2D1.1(b)(1) would be applicable at the resentencing.
          On March 11, 1996, the district court filed Amended
Tentative Findings and Rulings Concerning Disputed Facts or
Factors. The court held that section 2D1.1(b)(1) was, in terms,
applicable as the guideline calls for imposition of the
enhancement "if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1, Commentary n.3. In this regard the court
relied principally on United States v. Mitchell, 31 F.3d 271,
277-78 (5th Cir.), cert. denied, 115 S.Ct. 455 (1994) (holding
that presence and accessibility of weapon trigger enhancement).
Here the weapon clearly was present in the bedroom when the
police arrested Goggins and it was not improbable that the weapon
was connected with the offense. For two reasons the court would
not follow United States v. Watts, 67 F.3d 790, 796-98 (9th Cir.
1995), cert. denied, 116 S.Ct. 1369 (1996), which held that a
court could not impose a section 2D1.1(b)(1) enhancement if a
jury acquitted the defendant under section 924(c)(1). First, a
jury had not acquitted Goggins. Second, the court found Wattsunpersuasive
as Watts reached a result contrary to that in the
three other cases which the court cited holding that an acquittal
on a section 924(c)(1) count does not preclude a section
2D1.1(b)(1) sentencing enhancement. See United States v.
Billops, 43 F.3d 281, 288 (7th Cir. 1994), cert. denied, 115
S.Ct. 1389 (1995); United States v. Romulus, 949 F.2d 713, 716-17
(4th Cir. 1991), cert. denied, 503 U.S. 992, 112 S.Ct. 1690
(1992); United States v. Coleman, 947 F.2d 1424, 1428-29 (10th
Cir. 1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1590 (1992).
          The court next rejected Goggins's argument that the
application of section 2D1.1(b)(1) violated double jeopardy
principles as we have held repeatedly that if convictions on some
counts of a multi-count indictment are vacated the court may
resentence the defendant to enhanced sentences on the remaining
counts. See, e.g., United States v. Busic, 639 F.2d 940, 949-50
(3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055 (1981).
Finally, the court rejected Goggins's arguments that collateral
estoppel, the law of the case doctrine, and waiver precluded
application of section 2D1.1(b)(1).
          The court then calculated Goggins's adjusted offense
level as 25 using the section 2D1.1(b)(1) enhancement. Thus,
predicated on a criminal history category of IV, he was subject
to a sentencing range of 84 to 105 months. The court imposed a
sentence of 84 months to be followed by a five-year term of
supervised release. Goggins then appealed again.

                          II. Discussion
          On this appeal Goggins contends that the district court
should not have applied section 2D1.1(b)(1) for several reasons.
First, he argues that the government waived its right to have
section 2D1.1(b)(1) applied because "it unwisely and improperly
chose to pursue the § 924(c)(1) charge, in lieu of a §
2D1.1(b)(1) enhancement." Br. at 19. Second, Goggins argues,
citing United States v. Watts, 67 F.3d 790, that the dismissal of
the 18 U.S.C. § 924(c)(1) count bars the application of section
2D1.1(b)(1). Third, he contends that "there was no connection
between the firearm and the underlying offense" so that section
2D1.1(b)(1) is inapplicable. Br. at 24.
          Fourth, Goggins attempts to distinguish our line of
cases providing that if a conviction of one count of a multi-
count indictment is vacated on appeal, on remand the district
court may resentence the defendant to an increased sentence on
the remaining counts so long as the total reimposed sentence does
not exceed the original sentence. See, e.g., United States v.
Retos, 25 F.3d 1220, 1232-33 (3d Cir. 1994) (holding that
district court has discretion to resentence up to length of
original sentence); United States v. Pelullo, 14 F.3d 881, 900
(3d Cir. 1994) (holding that sentences can be increased on remand
as long as reasons are identified); United States v. Busic, 639
F.2d at 949-50. He contends that these cases are inapplicable
because his section 924(c)(1) "conviction was vacated, not as the
result of a direct appeal, but as the result of a Motion to
Vacate which the government consented to and the district court
granted." Br. at 25. Furthermore, he points out that his motion
to vacate his sentence challenged only the section 924(c)(1)
conviction so that his "remaining conviction [was] untouched."
Br. at 25. Thus, in his view, the district court did not have
jurisdiction to resentence him on the "untouched" count. He also
contends that the "effect of the § 2D1.1(b)(1) enhancement . . .
was to resentence him on a lesser included offense after the
greater offense had been thrown out, and not simply to resentence
him on the remaining conviction," thus violating the double
jeopardy protections. Br. at 26.
          We reject all of Goggins's contentions. A grand jury
indicted Goggins for the violation of section 924(c)(1). Once
Goggins pleaded guilty to that charge the government could not
seek to have his sentencing level enhanced under section
2D1.1(b)(1) because the commentary to U.S.S.G. § 2K2.4 makes it
clear that such enhancement would be prohibited double counting.
U.S.S.G. § 2K2.4, Comment, background. Thus, the government
could not choose between the application of sections 2D1.1(b)(1)
and 924(c)(1) at the sentencing. Accordingly, the only basis for
waiver would be on a sort of election of remedies theory: that
by seeking an indictment under section 924(c)(1) the government
precluded itself from later seeking an enhancement under section
2D1.1(b)(1). We reject such an attenuated theory for there is no
reason why facts relating to a count on which a defendant is
acquitted or which is dismissed may not be germane with respect
to a count on which he is convicted. See United States v. Ryan,
866 F.2d 604, 608 (3d Cir. 1989). Furthermore, the government
cannot be certain when a grand jury indicts a defendant what
facts will be determined at the trial.
          We also reject Goggins's argument that Goggins's
acquittal of the section 924(c)(1) count has any bearing on this
matter. Rather, we align ourselves with the overwhelming
majority of the courts of appeals which have held that a weapons
enhancement under section 2D1.1(b)(1) is permissible after an
acquittal under section 924(c)(1). See, e.g., United States v.
Pollard, 72 F.3d 66, 68-69 (7th Cir. 1995); United States v.
Barnes, 49 F.3d 1144, 1149-50 (6th Cir. 1995); United States v.
Billops, 43 F.3d at 288; United States v. Ovalle-Marquez, 36 F.3d
212, 224-25 (1st Cir. 1994), cert. denied, 115 S.Ct. 1322 (1995);
United States v. Romulus, 949 F.2d at 716-17; United States v.
Coleman, 947 F.2d at 1428-29. Pollard explains why this result
is correct. Section 2D1.1(b)(1) is broader than section
924(c)(1) and so encompasses conduct not within section
924(c)(1). Furthermore, the burden of proof to impose an
enhancement under section 2D1.1(b)(1) is less than the burden for
a conviction under section 924(c)(1). Pollard, 72 F.3d at 68-69.
We also note that our result is consistent with the Supreme
Court's recognition in Bailey that section 2D1.1(b)(1) is broader
than section 924(c)(1). Bailey, 116 S.Ct. at 509. Of course, in
this case it is perfectly clear that the facts supported the
enhancement under section 2D1.1(b)(1) and accordingly we reject
Goggins's argument to the contrary.
          We also reject Goggins's argument that our cases
allowing a court on remand to impose a greater sentence on a
conviction on a count affirmed on appeal, after a sentence on
another count is vacated, are distinguishable. Plainly the
proceedings after the original appeal were functionally the same
as those which would follow a reversal of a conviction by this
court. In any event, the reason for allowing a resentencing on a
conviction on a count upheld on appeal after an acquittal on
another count, is to permit the court to impose the sentence
which seems appropriate for the offense or offenses for which the
defendant has been convicted validly by allowing the court to
reconstruct the sentencing plan. See United States v. Busic, 639
F.2d at 952. After all, if the district court knew at the time
of the original sentencing that it could not sentence on all the
counts on which the defendant was convicted, it might have
imposed a greater sentence on the counts on which it could
sentence validly.
          Furthermore, inasmuch as we regard this case as
functionally being the same as a case involving a reversal and a
remand, the district court no more lost jurisdiction over the
count not challenged on the motion to vacate than it would lose
jurisdiction over a count on which a judgment of conviction is
affirmed, but on which a new sentence is imposed after the court
vacates a sentence on another count. In this regard, we point
out that Rodriguez v. United States, 933 F. Supp. 279, 283-85
(S.D. N.Y. 1996), and Dossett v. United States, 931 F. Supp. 686,
687-88 (D.S.D. 1966), which Goggins cites, and which would not
allow resentencing on other counts after convictions under
section 924(c)(1) were vacated, are distinguishable because the
courts in those cases were entertaining proceedings under 28
U.S.C. § 2255. Thus, the Rodriguez and Dossett courts themselves
distinguished the collateral proceedings before them from
proceedings on remand following a direct appeal. As we have
indicated, we regard the proceedings in the district court in the
same way we would have regarded the case if we had reversed and
remanded for resentencing. Thus, we have no need to indicate
whether we agree with Rodriguez and Dossett, though we do observe
that other district courts have reached results contrary to those
in Rodriguez and Dossett. See, e.g., Mixon v. United States, 926
F. Supp. 178, 181-82 (S.D. Ala. 1996). Finally, we hold that, as
Busic makes clear, 639 F.2d at 949-52, the resentencing did not
violate double jeopardy principles.
          The judgment of conviction and sentence entered March
19, 1996, will be affirmed.
