                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
     ___________

     No. 96-2482
     ___________

Wayne Anthony Gardiner,               *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
United States of America,             *
                                      *
           Appellant.                 *

     ___________                          Appeals from the United States
                                          District Court for the District of
     No. 96-2530                          Minnesota.
     ___________

Ernesto Gutierrez-Silva,              *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
United States of America,             *
                                      *
           Appellant.                 *
      ___________

      No. 96-2626
      ___________

Kevin Beal,                              *
                                      *
              Appellee,               *
                                      *
      v.                              *
                                      *
United States of America,             *
                                      *
              Appellant.              *
                                 ___________

                              Submitted: March 11, 1997
                                  Filed: May 27, 1997
                                 ___________

Before WOLLMAN and BEAM, Circuit Judges, and LAUGHERY,1 District Judge.
                               ___________

BEAM, Circuit Judge.

      These consolidated appeals present the question whether, in an action
under 28 U.S.C. § 2255, a district court has authority to resentence a
prisoner on a drug trafficking conviction after vacating a related
conviction for using a firearm in relation to a drug offense in violation
of 18 U.S.C. § 924(c). We hold that the court has such authority.




      1
       The Honorable Nanette K. Laughrey, United States District Judge for the
Eastern and Western Districts of Missouri, sitting by designation.

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I.   BACKGROUND

      In unrelated cases, Gardiner, Gutierrez-Silva, and Beal (petitioners)
were charged in multi-count indictments with drug trafficking charges.
Each was also charged with using a firearm in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c).   Petitioners were
all convicted of both the drug and weapons charges. Convictions under §
924(c) carry a mandatory five-year term of imprisonment, which must run
consecutive to any sentences for related convictions. In each case, the
sentencing courts determined sentences for the drug trafficking charges in
accordance with the United States Sentencing Guidelines.         Under the
Guidelines, a defendant convicted of a drug trafficking offense is subject
to a two-level enhancement of the base offense level if he is found to have
possessed a dangerous weapon.       U.S. Sentencing Guidelines Manual §
2D1.1(b)(1) (1995). However, if the defendant is also convicted of a §
924(c) firearms charge, the Guidelines prohibit application of the §
2D1.1(b)(1) enhancement because this would constitute “double-counting” the
same conduct. U.S.S.G. § 2K2.4, comment. (n.2).

      After petitioners had begun to serve their sentences, the United
States Supreme Court held in Bailey v. United States that a conviction
under § 924(c) requires a showing of "active employment of the firearm by
the defendant . . . that makes the firearm an operative factor in relation
to the predicate offense." 116 S. Ct. 501, 505 (1995). Petitioners then
brought habeas corpus actions, claiming that the standard announced in
Bailey rendered their § 924(c) convictions invalid. The district court
determined that Bailey required the convictions to be vacated (the
petitioners' habeas actions were considered by the same judge below). The
government moved for resentencing on petitioners’ drug convictions, arguing
that with the § 924(c) convictions vacated, nothing prevented application
of the § 2D1.1(b)(1) weapon enhancement. The district court concluded that
it lacked authority to resentence petitioners on the drug trafficking
charges. The government appeals.




                                    -3-
II.   DISCUSSION

      These cases are the latest in a series dealing with the application
of Bailey to defendants convicted on § 924(c) charges prior to the Supreme
Court’s decision in that case. In cases before us on direct appeal, we
have remanded to the district court for resentencing on the related drug
trafficking charges after concluding that Bailey requires a § 924(c)
conviction to be vacated. See, e.g., United States v. Roulette, 75 F.3d
418, 426 (8th Cir. 1996). The issue in the present appeals is whether the
district court may conduct such resentencing after vacating a § 924(c)
conviction in a § 2255 habeas action. Another panel of this court recently
held that district courts have authority to conduct such resentencing in
§ 2255 actions, rejecting precisely the same arguments that petitioners in
this case advance. United States v. Harrison, No. 96-2544, slip op. at 2-6
(8th Cir. May 9, 1997). We are, of course, bound by that decision, but in
any event reach the same conclusion.

      The district court concluded that it had no authority to resentence
petitioners on their drug trafficking convictions because their § 2255
actions challenged only the validity of their § 924(c) firearms
convictions.    The court reasoned that the § 924(c) convictions were
distinct from the unchallenged drug trafficking convictions, and, thus,
recalculating the drug trafficking sentences applying the § 2D1.1(b)(1)
enhancement would constitute a sua sponte resentencing.          Similarly,
petitioners argue that § 2255 provides no basis for the government’s motion
for resentencing because the habeas statute allows only persons in custody
to seek postconviction relief, not the government. Because they did not
challenge their drug convictions, petitioners argue, the district court had
no power to “reopen” the sentences on those charges.

      The federal habeas corpus statute provides that when a federal court
finds that a judgment was rendered without jurisdiction or is legally
infirm, “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.




                                    -4-
Section 2255 affords the court broad and flexible power in correcting
invalid convictions or sentences. Andrews v. United States, 373 U.S. 334,
339 (1963); United States v. Hillary, 106 F.3d 1170, 1171 (4th Cir. 1997).
The question here is whether that authority extends to recalculating the
sentence on one part of a multi-count judgment, when the court has set aside
the sentence imposed on another count. We think that it does, and so join
the Fourth, Seventh, and Ninth Circuits in holding that a prisoner who
brings a § 2255 action to set aside a § 924(c) conviction in light of Bailey
may be resentenced on his related drug trafficking conviction. See United
States v. Handa, 110 F.3d 42, 44 (9th Cir. 1997); Hillary, 106 F.3d at 1173
(4th Cir. 1997); United States v. Smith, 103 F.3d 531, 533-35 (7th Cir.
1996).

      We agree that “a multi-count sentence is a package [and] severing part
of the total sentence usually will unbundle it.” Smith, 103 F.3d at 534.
When a prisoner is sentenced for multiple related convictions, the
sentencing court issues one judgment. That judgment encompasses all of the
convictions and discrete “sentences” for specific offenses that, in the
aggregate, determine one overall term of custody. “Under the sentencing
package concept, when a defendant raises a sentencing issue, he attacks the
bottom line.” Id.      When a prisoner collaterally attacks a portion of a
judgment, he is reopening the entire judgment and cannot selectively craft
the manner in which the court corrects that judgment.

      Furthermore, the only reason resentencing is even at issue in these
cases is because the § 924(c) sentences were intertwined with the drug
trafficking sentences in the original proceedings. All of the petitioners
were subject to a § 2D1.1(b)(1) enhancement for their drug trafficking
sentences for possession of firearms.       This enhancement could not be
applied, however, because the § 924(c) conviction already penalized that
same conduct. The sentences on these two related counts have always been
interdependent, and the judgments so reflected.      Because petitioners’ §
924(c) sentences are intertwined with their drug sentences, vacating the §
924(c) convictions without allowing for resentencing on the drug convictions
would result in periods of




                                    -5-
custody based on an erroneous application of the Sentencing Guidelines.
This would be inconsistent with both the Guidelines and with § 2255, which
directs the court to “correct the sentence as may appear appropriate.”

      Petitioners also argue, and the district court concluded, that double
jeopardy concerns militate against resentencing.             However, "the
pronouncement of sentence has never carried the finality that attaches to
an acquittal.” United States v. DiFrancesco, 449 U.S. 117, 133 (1980).
This is particularly true of a resentencing upon appeal. Pennsylvania v.
Goldhammer, 474 U.S. 28, 30 (1985) (per curiam). In the cases before us,
petitioners themselves put their convictions before the court by bringing
collateral actions. They cannot claim to have any legitimate expectation
of finality in their sentences when they have put their entire judgment,
encompassing interdependent sentences, before the court. See Smith, 103
F.3d at 535 (“When there is an alteration in the components of a sentence,
the entire sentence is altered. If the alteration contains within itself
potential for permeating the whole sentence, the entire sentence can be
revisited.”) We hold, therefore, that application of the § 2D1.1(b)(1)
adjustment on resentencing does not constitute double jeopardy. See id.
(accord).

III. CONCLUSION

      For the foregoing reasons, the judgments of the district court are
reversed. We remand for further proceedings consistent with this opinion.


     A true copy.

           ATTEST:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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