                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-2224.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                  v.

               Everett Dale WATKINS, a.k.a. Dale Watkins, Defendant-Appellant.

                                           July 28, 1998.

Appeal from the United States District Court for the Northern District of Florida. (No. 93-CR-
04046-01), William Stafford, Judge.

Before COX, DUBINA and BLACK, Circuit Judges.

       DUBINA, Circuit Judge:

                                         I. BACKGROUND

       Defendant/Appellant, Everett Dale Watkins ("Watkins"), was indicted and charged in a three

count indictment. Count I charged conspiracy to possess marijuana with intent to distribute, in

violation of 21 U.S.C. § 841(a), 841(b)(1)(B)(vii), and § 846. Count II charged possession of three

firearms as a three-time felon, in violation of 18 U.S.C. § § 922(g) and 924(e). Count III charged

using and carrying firearms during and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c). Watkins entered into a plea agreement with the government in which he pled guilty

to all three counts of the indictment.

       When Watkins was sentenced, his base offense level for the drug offense in Count I was 26

with a criminal history category of IV. However, Watkins's base offense level on Count II, the §

924(e) offense, was 37, with a criminal history category of VI, due to his status as a career offender

pursuant to United States Sentencing Guidelines § 4B1.1 ("U.S.S.G." or "guidelines"). After a

three-point reduction for acceptance of responsibility, Watkins's guideline offense range for Counts
I and II was 262 to 327 months, to be followed by a mandatory consecutive sentence of 60 months

on the § 924(c) offense in Count III. The government filed a substantial assistance certification

pursuant to U.S.S.G. § 5K1.1 on Watkins's behalf. This effectively placed Watkins's sentence

outside the guideline range and gave the district court discretion to sentence Watkins to an

appropriate sentence. Thus, the district court crafted a package sentence totaling 132 months as

follows: concurrent terms of imprisonment of 72 months on Counts I and II and a 60-month

consecutive term of imprisonment on Count III.

       Three years after his sentencing, Watkins filed a 28 U.S.C. § 2255 motion to vacate the

conviction and sentence for the § 924(c) offense, pursuant to the Supreme Court's decision in Bailey

v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).1 The government conceded

that, in light of Bailey, Watkins's conviction on Count III should be vacated. The government

requested that Watkins be resentenced with a two-level enhancement for possession of a firearm in

connection with a drug offense in Count I, pursuant to U.S.S.G. § 2D1.1(b)(1).2 The probation

officer prepared a second addendum to the pre-sentence report ("PSI") which concluded that a

U.S.S.G. § 2D1.1(b)(1) enhancement to Count I would not affect Watkins's adjusted offense level.

The original calculation of an adjusted offense level of 34 was based upon the career offender

application to Count II. Therefore, a two-level upward adjustment to Count I pursuant to §

2D1.1(b)(1) would not affect Watkins's guideline range. The government then filed an addendum



   1
   In Bailey, the Supreme Court held that 18 U.S.C. § 924(c) requires evidence sufficient to
show active employment of a firearm by a defendant during and in relation to a predicate offense.
516 U.S. at 143, 116 S.Ct. at 505.
   2
    U.S.S.G. § 2D1.1(b)(1) provides that in offenses involving drugs, the base offense level is
increased by 2 levels if a dangerous weapon was possessed.

                                                 2
to Watkins's U.S.S.G. § 5K1.1 motion, which detailed additional cooperation provided by Watkins

to law enforcement personnel.

       At resentencing, the district court concluded that it had the authority to resentence Watkins

on each of Counts I and II to a term of imprisonment not to exceed 132 months, which was the

aggregate sentence previously imposed on all three counts. After considering the addendum to the

§ 5K1.1 memorandum, the district court imposed concurrent terms of imprisonment of 96 months

on Counts I and II. This resulted in a 24-month increase in the initial sentence imposed upon Counts

I and II alone, but was 36 months lower than Watkins's prior aggregate sentence.

                                             II. ISSUES

       1. Whether the district court had jurisdiction to resentence Watkins on Counts I and II, when

only Count III was challenged in Watkins's 28 U.S.C. § 2255 motion.

       2. Whether the resentencing violated Watkins's double jeopardy rights.

       3. Whether the resentencing violated Watkins's due process rights.

                                  III. STANDARD OF REVIEW

        The issues of whether the district court had jurisdiction to resentence Watkins and whether

the resentencing violated Watkins's double jeopardy and due process rights involve questions of law

and are subject to de novo review. United States v. Smith, 115 F.3d 241, 244 (4th Cir.), cert. denied,

--- U.S. ----, 118 S.Ct. 315, 139 L.Ed.2d 244 (1997). See also United States v. Garrett, 3 F.3d 390,

390 (11th Cir.1993) ("Questions of law are reviewed de novo.").

                                         IV. DISCUSSION

       This appeal presents an interesting twist on an already decided issue in our circuit. In United

States v. Mixon, 115 F.3d 900 (11th Cir.1997), we joined a number of other circuits in concluding


                                                  3
that a district court has jurisdiction, after vacating an 18 U.S.C. § 924(c) conviction on a Bailey

challenge raised in a 28 U.S.C. § 2255 habeas petition, to resentence a defendant on the remaining

unchallenged counts.3 The Mixon case affirmed the district court's application of the U.S.S.G. §

2D1.1(b)(1) enhancement on unchallenged counts following a successful § 2255 motion vacating

the 18 U.S.C. § 924(c) conviction. We followed several circuit cases which held that either statutory

authority or the sentencing package doctrine permitted resentencing on unchallenged counts

following vacatur of a § 924(c) conviction. 115 F.3d at 903. Thus, we held that based on the

language of § 2255 and the interdependence of the multiple counts for sentencing purposes, a district

court could adjust a defendant's sentence on the unchallenged, but related, drug counts. Id.

       The twist in the present case is that Watkins, unlike the defendants in Mixon and the other

circuit cases, is an armed career criminal. Thus, Watkins's career offender status trumps the usual

offense level calculations so that Watkins' offense level is not increased by application of the



   3
     See e.g. United States v. Handa, 122 F.3d 690, 691-92 (9th Cir.1997), cert. denied, --- U.S. --
--, 118 S.Ct. 869, 139 L.Ed.2d 766 (1998); United States v. Mendoza, 118 F.3d 707 (10th Cir.),
cert. denied, --- U.S. ----, 118 S.Ct. 393, 139 L.Ed.2d 307 (1997); United States v. Morris, 116
F.3d 501 (D.C.Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 431, 139 L.Ed.2d 331 (1997); United
States v. Smith, 115 F.3d 241 (4th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 315, 139 L.Ed.2d
244 (1997); Gardiner v. United States, 114 F.3d 734, 735-36 (8th Cir.), cert. denied, Gutierrez-
Silva v. U.S., --- U.S. ----, 118 S.Ct. 318, 139 L.Ed.2d 246 (1997)(multi-count sentence is a
"package," and any attack on one count is an attack on the bottom line sentence); United States
v. Rodriguez, 114 F.3d 46, 48 n. 6 (5th Cir.1997); United States v. Harrison, 113 F.3d 135, 137
(8th Cir.1997); United States v. Davis, 112 F.3d 118, 122-23 (3rd Cir.), cert. denied, --- U.S. ----
, 118 S.Ct. 224, 139 L.Ed.2d 156 (1997); United States v. Rodriguez, 112 F.3d 26, 30-31 (1st
Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 237, 139 L.Ed.2d 168 (1997); United States v.
Binford, 108 F.3d 723, 728-29 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2530, 138 L.Ed.2d
1029 (1997); United States v. Hillary, 106 F.3d 1170, 1172-73 (4th Cir.1997); United States v.
Smith, 103 F.3d 531, 533-35 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1861, 137
L.Ed.2d 1061 (1997); United States v. Milledge, 109 F.3d 312, 315 (6th Cir.1997); United
States v. Gordils, 117 F.3d 99, 102-04 (2d Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 430, 139
L.Ed.2d 330 (1997).

                                                 4
U.S.S.G. § 2D1.1(b)(1) enhancement. Therefore, the guidelines range on Counts I and II are the

same as they were at the original sentencing. In Mixon, the availability of the § 2D1.1(b)(1)

enhancement changed the guideline range, enabling the court to increase the sentence on the

unchallenged counts. The questions raised by this appeal are whether the availability of the §

2D1.1(b)(1) enhancement is an integral component of the court's jurisdiction to resentence on

unchallenged counts following a § 2255 proceeding and whether the absence of enhancement

changes double jeopardy or due process considerations. We answer both questions in the negative.

A. Jurisdiction

       Relying on United States v. Rosen, 764 F.2d 763, 766 (11th Cir.1985)4, Watkins argues that

the district court did not have jurisdiction to resentence him on Counts I and II because only Count

III was the subject of his habeas petition. In Rosen, a case that arose before the guidelines were

enacted, we held that following a successful collateral attack, only the sentence on the specific

challenged count is before the district court because the district court only has power over the

challenged counts. Id. By contrast, in cases subject to the guidelines, sentences imposed for drug

and firearms offenses are interdependent. The guidelines contemplate the interdependence of a §

924(c) conviction and the underlying offense. United States v. Davis, 112 F.3d 118, 121 (3rd

Cir.1997). Rosen did not contemplate such interdependence and, therefore, is distinguishable.

        In this case, the district court viewed Watkins's sentence as a "package" and took into

account "the nature of the crime, certain characteristics of the criminal, and the interdependence of

the individual counts." United States v. Binford, 108 F.3d 723, 728 (7th Cir.1997). The district


   4
    Watkins also relies on Beal v. United States, 924 F.Supp. 913, 917 (D.Minn.1996), but his
reliance is misplaced because that case was reversed and remanded by the Eighth Circuit in
Gardiner v. United States, 114 F.3d 734, 735-36 (8th Cir.1997).

                                                 5
court had jurisdiction to resentence Watkins on all counts when Count III was vacated because the

sentencing package became "unbundled," and the district court had to recalculate and reconsider

Watkins's sentence for it to comport with the district court's original intentions at sentencing. Id.

at 728-29. In rare cases such as this one, where the district court is sentencing outside the guidelines

range, it is particularly important that the district court have discretion to reevaluate the entire

sentencing package.

       At Watkins's resentencing, the district court acknowledged that it could not sentence Watkins

to a higher sentence than previously imposed. Thus, the district court began at 132 months again,

and then considered the government's amended § 5K1.1 motion. The district court reflected on its

original sentence and Watkins's offense conduct and arrived at a 96-month concurrent sentence for

Counts I and II.

       The interdependence of the drug and firearms offenses and the sentencing package doctrine

provided the district court with the jurisdiction to resentence Watkins following his successful

collateral attack on the § 924(c) offense. Thus, the availability of the U.S.S.G. § 2D1.1(b)(1)

enhancement is not necessary to the court's jurisdiction to resentence on unchallenged counts. Once

jurisdiction is established, the district court has the discretion to consider the nature and

circumstances of the offense conduct and to fashion an appropriate sentence that comports with the

law. In this case, Watkins's status as a career offender caused his base offense level for the drug

offense in Count I to be merged with his lengthier base offense level for the firearms charged in

Count II. Also, during both his initial sentencing and at his resentencing, Watkins received

substantial downward departures pursuant to U.S.S.G. § 5K1.1. The district court considered the

proper legal factors and imposed a sentence that it found appropriate. Moreover, the district court


                                                   6
correctly acknowledged that the sentencing package had become "unbundled" and, accordingly,

properly adjusted Watkins's sentence. Because the district court was within its jurisdiction to

resentence Watkins and because the sentence imposed comported with the law, we affirm the

sentence.

B. Double Jeopardy Claim

         Watkins's double jeopardy challenge is foreclosed by Mixon, where we held that

resentencing does not violate the double jeopardy clause. Additionally, because Watkins challenged

the aggregate sentence, he can have no legitimate expectation of finality in any discrete portion of

the sentence. See generally United States v. DiFrancesco, 449 U.S. 117, 133, 101 S.Ct. 426, 435,

66 L.Ed.2d 328 (1980) ("the pronouncement of sentence has never carried the finality that attaches

to an acquittal."). See also Monge v. California, --- U.S. ----, 118 S.Ct. 2246, --- L.Ed.2d ----

(1998)(reinforcing DiFrancesco proposition). A defendant can have no legitimate expectation of

finality in his original drug-trafficking sentence, as that sentence was interdependent on the firearm

sentence that he challenged in his § 2255 motion. See Davis, 112 F.3d at 124. As the Gardiner

court explained, "[w]hen a prisoner collaterally attacks a portion of a judgment, he is reopening the

entire judgment and cannot selectively craft the entire manner in which the court corrects that

judgment." 114 F.3d at 736. Because Watkins's challenge nullifies any expectation of finality in

his sentence, we see no double jeopardy violation. See United States v. McClain, 133 F.3d 1191 (9th

Cir.1998), petition for cert. filed May 27, 1998.

C. Due Process Claim

        Watkins argues that the district court's upward modification of his sentence on Counts I and

II violated his due process rights. We disagree because the district court utilized the same 132-


                                                    7
month sentence to begin its consideration in the resentencing. See R. Vol. 4. The aggregate sentence

of 132 months was not increased.5 Because of this, Watkins was put in the same position as if a §

924(c) charge had not been included in the indictment. See Harrison, 113 F.3d at 138.

       Additionally, as stated previously, Watkins has no expectation of finality in his sentence

because he challenged the § 924(c) conviction and sentence, which was closely linked with the

underlying drug offense. Moreover, Watkins can have no reasonable expectation of finality as to

his sentence when he has not completed his term of imprisonment. Davis, 112 F.3d at 124. We

conclude there is no due process violation.

                                        V. CONCLUSION

       For the foregoing reasons, we affirm Watkins's sentence.

       AFFIRMED.




   5
    We are mindful that a defendant's due process rights may be violated "when a sentence is
enhanced after the defendant has served so much of his sentence that his expectations as to its
finality have crystallized and it would be fundamentally unfair to defeat them." United States v.
Lundien 769 F.2d 981, 987 (4th Cir.1985). It is an extreme case where a later upward revision of
a sentence is so unfair that it is inconsistent with the fundamental notions of fairness found in the
due process clause. Davis, 112 F.3d at 123. This is not an extreme case.

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