                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT

                             ____________________

                                 No. 97-10417
                                 No. 97-10436
                             ____________________


                         UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                        versus

                LONNIE RAY MOULDER; WALTER STEVEN HEIDEN,

                                                        Defendants-Appellants.


              Appeals from the United States District Court
                    for the Northern District of Texas

                                  May 18, 1998

Before KING, BARKSDALE, and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

       Primarily at issue is whether, after a defendant’s plea-

agreement-based-conviction is vacated on the basis that the conduct

supporting      the   plea   is    no    longer     considered   criminal,        the

Government may reinstate charges dismissed previously, pursuant to
that   plea    agreement,    when      those     putative   charges    pertain    to

criminal conduct linked with that which supported the agreement.

In holding that the Government may do so, we AFFIRM.

                                          I.

       Lonnie Ray Moulder and Walter Stephen Heiden were arrested in

1994 when methamphetamine was found in their vehicle.                  A suitcase

in the trunk contained a loaded pistol.                 Each was charged with

possession     with   intent      to    distribute    100   grams     or   more   of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and using

and carrying a firearm in connection with a drug offense, in

violation of 18 U.S.C. § 924(c).

     Later in 1994, both men signed identical plea agreements:

each pleaded guilty to the § 924(c) firearm offense; the Government

agreed “not [to] pursue any other charges ... arising directly out

of the facts and circumstances surrounding this offense or any

other offense of which the United States is currently aware”; and

neither defendant waived the right to appeal, or to collaterally

challenge, his conviction.   Each was sentenced in January 1995 to,

inter alia, five years in prison.

     In March 1996, Moulder and Heiden claimed in 28 U.S.C. § 2255

motions that their convictions were invalid because their conduct

did not violate § 924(c)(1), pursuant to Bailey v. United States,

___ U.S. ___, 116 S. Ct. 501 (1995) (to support conviction under

“use” prong of § 924(c), Government must show defendant actively

employed a gun during predicate drug offense).      The magistrate

judge determined that neither defendant had “used” a firearm within

the meaning of § 924(c); and that, in addition, their conduct

probably did not violate the § 924(c) “carry” prong.   Accordingly,

he recommended that the convictions be vacated, but concluded that

this would not bar prosecution on other charges arising out of the

bases for the arrests in 1994.

     Agreeing with the recommendation, the district court on 16

October 1996 vacated the § 924(c) convictions. But, that same day,




                                 - 2 -
Moulder and Heiden were indicted on the drug charges that, under

the plea agreement, had not been pursued earlier.

     In January 1997, the district court denied motions by Moulder

and Heiden to dismiss the reinstated charges.      It ruled that the

Government had not breached the plea agreements; that Moulder and

Heiden had “in effect repudiated” those agreements; and that no

prosecutorial vindictiveness or double jeopardy violation had been

shown.

     Moulder and Heiden conditionally pleaded guilty to the drug

charges, reserving the right to appeal the denial of their motions

to dismiss.   The district court sentenced Moulder to 135 months

imprisonment; Heiden, to 121 months.

                                 II.

     In short, the new sentences greatly exceeded the vacated 60-

month sentences.    The principal issue is whether the drug charge

reinstatement violates the plea agreements, by which the Government

agreed not to pursue additional charges in return for the § 924(c)

plea/convictions.      In    addition,   Heiden    claims   that    the

reinstatement constituted prosecutorial vindictiveness.

                                  A.

     “Plea bargain agreements are contractual in nature, and are to

be construed accordingly.”    Hentz v. Hargett, 71 F.3d 1169, 1173

(5th Cir.), cert. denied, 517 U.S. 1225 (1996); United States v.

Ballis, 28 F.3d 1399, 1409 (5th Cir. 1994).       We review de novo a

breach-of-plea-agreement-claim.    See United States v. Wittie, 25

F.3d 250, 262 (5th Cir. 1994), aff’d, 515 U.S. 389 (1995).         In so


                                - 3 -
doing, we “determine whether the government’s conduct is consistent

with the defendant’s reasonable understanding of the agreement”.

United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993).

     “[W]hen [a] defendant repudiates the plea bargain, either by

withdrawing the plea or by successfully challenging his conviction

on appeal, there is no double jeopardy (or other) obstacle to

restoring the relationship between defendant and state as it

existed prior to the defunct bargain.”              Fransaw v. Lynaugh, 810

F.2d 518, 524-25 (5th Cir.), cert. denied, 483 U.S. 1008 (1987);

see also Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir. 1977),

cert. denied, 434 U.S. 1049 (1978); Harrington v. United States,

444 F.2d 1190, 1194 (5th Cir. 1971).            Accordingly, Moulder and

Heiden assert that they did not “repudiate” their plea agreements

by their successful § 2255 motions.

     For starters, it is well to remember that, in their plea

agreements, Moulder and Heiden did not waive their right to appeal,

or collaterally attack, their convictions.           Nor did they repudiate

any express terms of the agreement.

     In United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir.

1997), as in this case, the defendants were charged with both drug

trafficking and violating § 924(c)(1); they pleaded guilty to the

latter, with the Government dropping the drug charges.                  Post-

Bailey, the defendants’ § 2255 motions contended that the conduct

supporting   their   convictions    no     longer    constituted   a   crime.

Although the district court vacated their convictions, it held that

the defendants, by successfully challenging them, had breached


                                   - 4 -
their plea agreements; and that the Government was no longer bound

by them.      Therefore, it reinstated the earlier-dismissed drug

charges.    Id. at 799.           But, the Ninth Circuit reversed, holding

that the defendants did not breach their agreements, because they

were not prohibited from collaterally attacking their sentences;

and that, therefore, the Government could not reinstate the drug

charges. Id. at 802.

     Needless to say, Moulder and Heiden contend that the same

analysis applies here.             Instead, we agree with the more recent

holding in United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998),

petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 24, 1998)

(No. 97-8828).     Bunner, which involved facts similar to those in

the instant case and in Sandoval-Lopez, held that, when a sentence

is vacated under § 2255 in the light of Bailey, the Government may

then reinstate charges it dismissed pursuant to a plea agreement.

     The ratio decidendi was that the Government’s contractual

obligations    under        the    agreement   were   discharged   under   the

frustration of purpose doctrine.           Bunner, 134 F.3d at 1004.       That

doctrine provides:

           Where, after a contract is made, a party’s
           principal purpose is substantially frustrated
           without his fault by the occurrence of an
           event the non-occurrence of which was a basic
           assumption on which the contract was made, his
           remaining duties to render performance are
           discharged, unless the language of the
           circumstances indicate the contrary.

RESTATEMENT (SECOND)   OF   CONTRACTS § 265 (1981).

     The comments to this section provide that “the purpose that is

frustrated must have been a principal purpose of that party in

                                       - 5 -
making the contract.... The object must be so completely the basis

of the contract that, as both parties understand, without it the

transaction would make little sense.”                   RESTATEMENT (SECOND)     OF   CONTRACTS

265 cmt. a (1981) (emphasis added).

     “The   application          of    contract        law   to   plea    agreements        is

premised on ‘the notion that the negotiated guilty plea represents

a bargained-for quid pro quo.’”              United States v. Asset, 990 F.2d

208, 215 (5th Cir. 1993) (quoting United States v. Escamilla, 975

F.2d 568, 570 (9th Cir. 1992)).                  In this regard, the underlying

purpose   of   the       plea    agreement        in    issue     was    to   “avoid       the

uncertainty    of    a    jury    verdict        ...    [and]     to    ensure    that     the

[defendants] served time for violating § 924(c)”. Bunner, 134 F.3d

at 1004-05. And, needless to say, “[a] basic assumption underlying

the parties’ purposes was their belief that the conduct ... pled

guilty to amounted to a violation of § 924(c)”.                         Id. at 1005.

     But, the parties’ assumptions and obligations were altered by

Bailey and the subsequent successful § 2255 challenges.                                  As a

result of those events “the underlying purpose of the [plea]

agreement [was] frustrated and the basis of the government’s

bargain [was] destroyed.               Thus, under the frustration of purpose

doctrine,   the     government’s          plea    agreement        obligations         became

dischargeable”.       Bunner, 134 F.3d at 1005.                   Accordingly, it was

free to reinstate the drug charges.

                                            B.

     “[A]   prosecutor          may,    without        explanation,      refile       charges

against a defendant whose bargained-for guilty plea to a lesser


                                          - 6 -
charge has been withdrawn or overturned on appeal, provided that an

increase in the charges is within the limits set by the original

indictment.”    Hardwick, 558 F.2d at 301. Nevertheless, Heiden

maintains    that   reinstating   the     more    serious    drug   charges

constituted prosecutorial vindictiveness, violative of due process.

                                   1.

     We review a district court’s factual findings concerning

prosecutorial   vindictiveness     for    clear   error     and   its   legal

determinations de novo. See United States v. Johnson, 91 F.3d 695,

698 (5th Cir. 1996), cert. denied, 117 S. Ct. 752 (1997).                 In

reviewing a prosecutorial vindictiveness claim, “the court must

examine the prosecutor’s actions in the context of the entire

proceedings.”   United States v. Krezdorn, 718 F.2d 1360, 1365 (5th

Cir. 1983) (en banc), cert. denied, 465 U.S. 1066 (1984).                The

defendant must prove the claim by a preponderance of the evidence;

and, “[i]f any objective event or combination of events ... should

indicate to a reasonable minded defendant that the prosecutor’s

decision to increase the severity of charges was motivated by some

purpose other than a vindictive desire to deter or punish appeals,

no presumption of vindictiveness is created.”         Id.

     The district court held correctly that such vindictiveness was

not shown.   As Krezdorn teaches, it should be clear to a reasonable

minded defendant that the dismissal of the § 924(c) conviction in

the light of Bailey was an event that would certainly motivate the

Government to reinstate the dismissed drug charge.




                                  - 7 -
                                  2.

     In     claiming   prosecutorial     vindictiveness,    Heiden     also

maintains that, because he did not have counsel during his § 2255

challenge to his § 924(c) conviction, he was not aware of what the

consequences might be (reinstatement of the drug charge) should his

challenge    be   successful.    He    contends   that,    “had   he   been

represented by counsel, he would have been informed of the risk and

could have made an intelligent choice.”

     Of course, Heiden was not entitled to counsel in his § 2255

matter.     See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555

(1987). In any event, obviously, the fact that he proceeded pro se

in the § 2255 matter had no bearing on the Government’s subsequent

decision to reinstate the drug charge.

                                 III.

     For the foregoing reasons, the judgments are

                                                           AFFIRMED.




                                 - 8 -
