205 F.3d 967 (7th Cir. 2000)
United States of America,  Plaintiff-Appellee,v.Eugene A. Fischer, Defendant-Appellant.
No. 97-4246
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 2, 1999Decided February 29,  2000

Appeal from the United States District Court   for the Southern District of Illinois.  No. 87 CR 40070--James L. Foreman, Judge. [Copyrighted Material Omitted]
Before Cudahy, Coffey and Kanne, Circuit  Judges.
Cudahy, Circuit Judge.


1
Over ten years  ago, Eugene Fischer was convicted both of  being the principal administrator of a  continuing criminal enterprise and of  conspiring to distribute marijuana. He  received a life sentence and a concurrent  sentence of 35 years, and we affirmed the  convictions and sentence on direct appeal  in United States v. Kramer, 955 F.2d 479  (7th Cir. 1992). Shortly thereafter,  Fischer filed a motion under Fed. R. Crim.  P. 35 to correct his allegedly illegal  sentence. In 1997, the district court  granted Fischer's motion in part and  denied it in part. Fischer filed a timely  appeal, and we affirm.

I.  Background and Disposition Below

2
In 1988, a jury convicted Eugene Fischer  of violating 21 U.S.C. sec.sec. 841(a)(1)  and 846 by conspiring to distribute more  than 300 tons of marijuana. The jury also  found that Fischer had participated as a  principal administrator, organizer or  leader of a continuing criminal  enterprise (CCE) in violation of 21  U.S.C. sec. 848, the "drug kingpin"  statute, and assessed $30 million in  criminal forfeitures against him. As  required by sec. 848(b), the district  court sentenced Fischer to life  imprisonment. Fischer also received a  35-year sentence, to run concurrently, on  the conspiracy conviction. Fischer's  convictions and sentences were affirmed  in all respects by this court. Kramer,  955 F.2d at 492.


3
In March of 1993, Fischer, proceeding  pro se before the district court, filed a  Rule 35 motion for correction or  reduction of sentence. See Fed. R. Crim. P.  35. This motion was pending for over four  years when the district court directed  the parties to file supplemental  materials in light of the Supreme Court's  decision in Rutledge v. United States,  517 U.S. 292 (1996). In Rutledge, the  Supreme Court held that a sec. 846  conspiracy is a lesser-included offense  of a sec. 848 continuing criminal  enterprise. Id. at 307, 116 S.Ct. 1241. Under Rutledge,  conviction for both conspiracy and CCE  offenses arising from the same facts  constitutes double jeopardy, and one of  the convictions must be vacated.  Id.  In  December of 1997, the district court  ruled on Fischer's supplemented four-  year-old motion under both the new and  the old versions of Rule 35,1 vacating  Fischer's conspiracy conviction and  sentence and refunding a fifty dollar  special assessment in accordance with  Rutledge. The sec. 848 CCE conviction and  life sentence remained unaltered.


4
In March of 1998, Fischer, again  proceeding pro se, timely appealed the  district court's decision, and we  appointed counsel for Fischer in February  of 1999. The appointed counsel filed a  new lead brief, and the government  responded. Then, in June of 1999, the  Supreme Court handed down another  decision seemingly relevant to Fischer's  case. In Richardson v. United States, 526  U.S. 813, 119 S. Ct. 1707 (1999), the  Supreme Court held that a jury must  unanimously agree not only that a  defendant charged under sec. 848 engaged  in a continuing series of violations but  also must unanimously agree on which  specific violations make up that  continuing series.  See id., 119 S. Ct.  at 1710-13. The parties requested  permission to file supplemental briefs  addressing the impact of Richardson, and  we granted that request. They did so, and  the case proceeded to oral argument.

II.  Discussion

5
In its present form, Fischer's appeal  presents three issues for review--two  discussed in his original brief and one  discussed in the supplemental brief filed  after Richardson. The three questions for  us are: (1) did the district court fail  to exercise its discretion in deciding to  set aside Fischer's sec. 846 conspiracy  conviction rather than his sec. 848 CCE  conviction? (2) Did the district court  abuse its discretion in deciding to set  aside Fischer's sec. 846 conviction  rather than his sec. 848 CCE conviction?  And (3) does Fischer's sec. 848 CCE  conviction violate the Supreme Court's  Richardson decision?

A.  Failure to Exercise Discretion

6
Fischer first argues that the district  court failed to exercise its discretion  in deciding to vacate his conspiracy con  viction and sentence under Rutledge.  According to Fischer, the district court  "did not balance any factors against any  standard" but instead merely followed the  government's suggestion to vacate the  conspiracy conviction. Appellant's Br. at  14. Fischer is right insofar as the  district court's opinion does not engage  in any analysis; but this, however, does  not necessarily signify a failure to  exercise discretion, see, e.g., United  States v. Hinojosa-Gonzalez, 132 F.3d  1314, 1316 (9th Cir. 1997) ("[M]ere  silence is inadequate evidence the  district court was unaware of its  authority . . . ."), and the fact that  the district court asked the parties for  supplemental materials on Rutledge  implies that it gave the matter some  thought.  In the absence of evidence to  the contrary, and Fischer presents none,  accepting the government's suggestion  here does not amount to a failure to  exercise discretion.2

B.  Abuse of Discretion

7
Fischer next argues that the district  court abused its discretion by deciding  to vacate the lesser-included sec. 846  conspiracy offense. It would help his  cause if Fischer could cite a single case  where we, or any other Court of Appeals,  held that it was an abuse of discretion  for the district court under Rutledge to  vacate the lesser-included conspiracy  conviction. But he does not; nor could we  find such a case. To the contrary, we  recently held that it was not an abuse of  discretion for the district court to  vacate the lesser-included conspiracy conviction and let the CCE conviction  stand. See Lanier v. United States, 205 F.3d 958, 966 (7th Cir. Feb. 9, 2000). See also  United States v. Story, 137 F.3d 518 (7th  Cir. 1997) (noting without comment that  district court vacated conspiracy  conviction). This post-Rutledge practice  of vacating the sec. 846 conspiracy conviction has been endorsed by several  other Circuits as well. See, e.g., United  States v. Dixon, 132 F.3d 192, 196 (5th  Cir. 1997); United States v. Boyd, 131  F.3d 951, 954-55 (11th Cir. 1997); United  States v. Avery, 128 F.3d 966, 972 (6th  Cir. 1997); United States v. Miller, 116  F.3d 641, 678 (2d Cir. 1997); United  States v. Jones, 101 F.3d 1263, 1268 (8th  Cir. 1996).


8
Fischer cites one case in which a Court  of Appeals suggested that it may have  been proper to vacate a CCE conviction  and let the lesser-included conspiracy  conviction stand. In United States v.  Chambers, 944 F.2d 1253 (6th Cir. 1991),  the Sixth Circuit acknowledged that the  general rule was to vacate the sec. 846  conspiracy conviction3 but suggested  that vacating the CCE conviction could  also be proper. Id. at 1269. However, in  Chambers, a glitch in the Sentencing  Guidelines rendered the sec. 846  conspiracy a more severe charge because  it carried a higher sentence than the  sec. 848 conviction.4 See id. Rather  than flatly suggesting that a sec. 848  conviction should be vacated in this  situation, as Fischer argues Chambers  does, Chambers simply implies that it  would not have been an abuse of  discretion to vacate the CCE conviction  in a situation where it carried the lower  sentence. See id. So, even if we were  inclined to follow Chambers's lead, we  could affirm the vacation of Fischer's  sec. 846 conspiracy conviction because it  carries the lower penalty. We hasten to  add, however, that there is no Iron Law  that it is the conviction with the lowest  penalty that must be vacated.


9
Fischer's final argument that the  district court abused its discretion is  based on the proposition that a court  "must consider factors essential to the  exercise of sound discretion." Johnson v.  Kamminga, 34 F.3d 466, 468 (7th Cir.  1994). He then provides his own set of  self-serving "factors" to suggest that  his CCE conviction and sentence should  have been vacated. His "factors" can be  summarized as follows:


10
*       The rule of lenity suggests that the  conviction with the higher sentence be  vacated.


11
*       The government gained an unfair  advantage by charging Fischer in a  "multiplicitious indictment," meaning  that he was charged with the greater  (CCE) and the lesser (conspiracy)  offense.


12
*       Fischer was denied the benefit of a  lesser-included offense instruction  permitting the jury to acquit on the  CCE charge.


13
*       The government improperly relied on a  narcotics conspiracy as a predicate  offense upon which the jury could base  its CCE conviction.


14
*       Questions posed to the judge during  jury deliberations reveal the jury's  confusion regarding the availability  of a lesser included offense.


15
Fischer's first "factor" is a true  sentencing factor, but is inapplicable  here because the rule of lenity "is not  applicable unless there is a 'grievous  ambiguity or uncertainty in the language  and structure of [a statute.]'" Chapman  v. United States, 500 U.S. 453, 463  (1991) (quoting Huddleston v. United  States, 415 U.S. 814, 831 (1974)). The  rule does not constitute "an overriding  consideration of being lenient to  wrongdoers." Id. The mandatory minimum  life sentence for the CCE conviction  could not be clearer, see 21 U.S.C. sec.  848(b), so the rule of lenity does not  apply. As for Fischer's remaining  "factors," they are not so much  sentencing considerations as alleged  errors at trial. Possible errors made  during a trial are not proper  considerations under Rule 35 because "the  narrow function of Rule 35 is to permit  correction . . . of an illegal sentence,  not to reexamine errors occurring at the  trial or other proceedings prior to the  imposition of sentence." Hill v. United  States, 368 U.S. 424, 430 (1962). See  also United States v. Bennett, 172 F.3d  952, 953 (7th Cir. 1999) (explaining that  an "illegal sentence" should not be  confused with a judgment that rests on  error). Errors occurring at the trial can  be considered under 28 U.S.C. sec. 2255,  but they have no bearing on whether  Fischer's sentence is "ambiguous,  inconsistent with the . . . conviction,  or otherwise defective" and are therefore  outside the purview of Rule 35. Bennett,  172 F.3d at 953. Thus, the district court  correctly ignored these considerations.


16
The district court vacated Fischer's  conspiracy conviction and sentence, and  in so doing, it eliminated the double-  punishment that violated Rutledge. See  Lanier, 205 F.3d at 966. Only Fischer's CCE conviction  and his life sentence remain, and that  punishment "was not in excess of that  prescribed by the relevant statutes,  multiple terms were not imposed for the  same offense, nor were the terms of the  sentence itself legally or  constitutionally invalid in any other  respect." Hill, 368 U.S. at 430. The  government met its burden of proof on all  elements of the CCE conviction, and it  would indeed be odd for us to say that  the district court abused its discretion  by allowing that conviction to stand. See  Lanier, 205 F.3d at 966. Therefore, we find that the district  court did not abuse its discretion here.

C.  Richardson

17
Fischer's final argument, which was not  made before the district court, is that  his CCE conviction was obtained in  violation of Richardson v. United States,  526 U.S. 813, 119 S. Ct. 1707 (1999). In  Richardson, the Supreme Court held that  "a jury in a criminal case brought under  sec. 848 must unanimously agree not only  that the defendant committed some  'continuing series of violations' but  also that the defendant committed each of  the individual 'violations' necessary to  make up that 'series,'" 119 S. Ct. at  1709, and the defendant is entitled to a  jury instruction that the jury must agree  unanimously on which specific acts  constituted the CCE violation. See id.,  119 S. Ct. at 1710-13. Fischer asserts,  and apparently the government concedes,  that no special unanimity instruction was  given here. Because there was no special  unanimity instruction, Fischer argues,  his CCE conviction is invalid under  Richardson, and we must vacate it and the  accompanying life sentence instead of the  conspiracy conviction and its 35-year  sentence. But, as we explained above, a  motion under Fed. R. Crim. P. 35 addresses  only the possible illegality of the  sentence itself, not the validity of the  underlying conviction. See Hill, 368 U.S.  at 430; Bennett, 172 F.3d at 953.  Fischer's sentence was purged of any  illegality when the lesser-included  conspiracy conviction and sentence were  vacated. Even though Richardson may call  into question the validity of Fischer's  CCE conviction, it does not provide a  proper basis for ruling on a Rule 35  motion. See Bennett, 172 F.3d at 953-54.  Fischer's argument under Richardson is an  attack on the underlying CCE conviction,  not the sentence imposed. He is not  arguing that his sentence was somehow  flawed; he claims that he should not have  been convicted in the first place. Such a  challenge should be litigated by a motion  under 28 U.S.C. sec. 2255. See Bennett,  172 F.3d 953-54.  Fischer filed a sec.  2255 motion in 1997, and that motion is  currently on appeal before this court.  See Fischer v. United States, No. 98-  1803; United States v. Fischer, No. 98-  1860. Consideration of this Richardson  issue is more appropriate in that docket.  We note that Fischer may have a tough  road ahead given this court's recent  decision in Lanier, where we rejected a  similar Richardson argument by one of  Fischer's co-defendants using harmless-  error analysis as required by Neder v.  United States, 527 U.S. 1 (1999). See  Lanier, 2000 U.S. App. LEXIS 1709, at *7-  *17. Regardless of the ultimate outcome  of Fischer's Richardson issue, this is  not the proper place to decide it.

III.  Conclusion

18
Fischer fails to present any persuasive  reason why the district court's decision  to vacate his conspiracy conviction and  sentence was an abuse of discretion;  therefore, the decision of the district  court is Affirmed.



Notes:


1
 Rule 35 was amended effective November 1, 1987.   Because Fischer's crimes were committed before  the effective date of the amended Rule 35, both  the amended and prior version of the Rule apply.  See United States v. Doe, 940 F.2d 199, 202 (7th  Cir. 1991). The district court discussed both the  new and old versions of the Rule in detail, but  we need not do so. Our analysis is equally  applicable to either version, so this opinion  will not distinguish between the two; instead, it  simply refers to "Rule 35."


2
 The government goes so far as to suggest that the  lesser-included offense should be automatically  stricken, thus denying the district court the  discretion to decide which of the two sentences  to vacate under Rutledge.  The Rutledge opinion  itself says nothing about how lower courts should  follow its rule, simply stating that "'[o]ne of  [appellant's] convictions, as well as [his]  concurrent sentence, is unauthorized punishment  for a separate offense' and must be vacated."  Rutledge, 517 U.S. at 307 (quoting Ball v. United  States, 470 U.S. 856, 864 (1985)). This statement  itself is of little help, but if we look at Ball,  we find guidance. In Ball, the Supreme Court  impliedly determined that possession of a firearm  is a lesser included offense of receipt of a  firearm. See 470 U.S. at 861. To alleviate the  double-punishment problem, the Ball Court  remanded the case and explained that it "is for  the District Court, where the sentencing  responsibility resides, to exercise its  discretion to vacate one of the underlying  convictions." 470 U.S. at 864. Thus, when a  defendant is convicted of an offense and a  lesser-included offense, the district court  should decide which conviction to vacate. We  recently held as much in Robinson v. United  States, 196 F.3d 748 (7th Cir. 1999), where we  "remand[ed] to the district court with  instructions to vacate [the defendant's]  conviction and sentence under either the CCE  count or the conspiracy count . . . ." Id. at  754.


3
 The Sixth Circuit had determined that a sec. 846  conspiracy count is a lesser-included offense of  a sec. 848 CCE count prior to the Supreme Court's  Rutledge decision.


4
 This has since been corrected.


