                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                              NOV 18 1997
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                        No. 96-3379
          v.                                                 D. Kansas
 EDITH FAYE WACKER, also known                       (D.C. No. 92-CR-40042)
 as Edie Wacker,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is

therefore ordered submitted without oral argument.

      Edith Faye Wacker pleaded guilty to one count of conspiracy to possess

with the intent to distribute marijuana in violation of 21 U.S.C. § 846 and to one


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
count of unlawful use of a firearm during and in relation to a drug trafficking

crime in violation of 18 U.S.C. § 924(c). On appeal, we remanded Wacker’s

sentence “with instructions that the district court specifically articulate the factual

basis and findings necessary for imposing the ‘manager or supervisor’

enhancement under USSG § 3B1.1(b).” United States v. Wacker, 72 F.3d 1453,

1480 (10th Cir.), cert. denied, 117 S. Ct. 136 (1996).

      Prior to resentencing, Wacker filed a motion pursuant to 28 U.S.C. § 2255

seeking to vacate the conviction and sentence imposed on the § 924(c) count. The

government conceded that there is an insufficient factual basis for her guilty plea,

and the district court accordingly vacated Wacker’s conviction and sentence as to

the § 924(c) violation. The court then resentenced her and included a two-level

enhancement pursuant to USSG § 2D1.1(b)(1) for possession of a firearm during

a drug trafficking offense. Wacker argues that the district court violated our

mandate by conducting resentencing on issues not decided in the direct appeal and

that the district court lacked jurisdiction to resentence her on a count of

conviction not challenged in her § 2255 motion.

      While we agree with Wacker that our mandate was limited to resentencing

on the specific issue of the “manager or supervisor” enhancement under USSG

§ 3B1.1(b), see United States v. Webb, 98 F.3d 585, 587-88 (10th Cir. 1996),

cert. denied, 117 S. Ct. 1097 (1997), her subsequent filing of a § 2255 motion


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broadened the scope of the resentencing. When the district court has itself

vacated a count of conviction pursuant to a § 2255 motion, it has jurisdiction to

determine the scope of resentencing. See United States v. Moore, 83 F.3d 1231,

1235 (10th Cir. 1996). And in United States v. Mendoza, 118 F.3d 707, 709-10

(10th Cir.), cert. denied, 1997 WL 612704 (U.S. Nov. 3, 1997), we specifically

held that in a § 2255 proceeding the district court has jurisdiction to enhance the

sentence pursuant to USSG § 2D1.1(b)(1) after vacating a § 924(c) conviction.

We therefore agree with the district court that “it is unnecessary in the context of

evaluating Edith Wacker’s § 2255 motion for the court to consider whether it is

constrained by the Tenth Circuit’s mandate from enhancing her sentence pursuant

to § 2D1.1(b)(1),” United States v. Wacker, 1996 WL 596744, at *2 (D. Kan.

Sept. 16, 1996), and that her sentence was properly enhanced upon resentencing.

      Accordingly, the sentence imposed by the district court is AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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