                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                   PUBLISH
                                                                         OCT 7 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                               TENTH CIRCUIT                                 Clerk



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

                   v.
                                                No. 97-6382
 JOHN DAVID EASTERLING, a.k.a.
 Donald Ray Doyle,

       Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
            (D.C. No. CIV-97-614-R & D.C. No. CR-89-187-R)


Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for Defendant-Appellant.

Patrick M. Ryan, United States Attorney, and Leslie M. Maye, Assistant United
States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.


Before PORFILIO , KELLY , and HENRY , Circuit Judges.


HENRY , Circuit Judge.



      In 1989, John David Easterling pleaded guilty to (1) conspiring to distribute

methamphetamine in violation of 21 U.S.C. § 846 and (2) using or carrying a
firearm in connection with a drug trafficking offense in violation of 18 U.S.C. §

924(c)(1). In 1997, upon Mr. Easterling’s habeas corpus petition, the district

court vacated his § 924(c)(1) conviction. The court then resentenced Mr.

Easterling on the §846 count, enhancing his sentence by two levels for

possession of a firearm during a controlled substance offense and reducing it by

two levels for acceptance of responsibility. Mr. Easterling appeals, contending

that the court lacked jurisdiction to resentence him because he had already

finished serving his § 846 sentence. In the alternative, he argues that he was

entitled to a three-level rather than a two-level sentence reduction for acceptance

of responsibility. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in

part, vacate in part, and remand for further proceedings.   1




                                   BACKGROUND

       In August 1989, a grand jury returned a seven-count indictment charging

Mr. Easterling with one count of conspiring to distribute methamphetamine in

violation of 21 U.S.C. § 846, three counts of possessing an unregistered firearm

in violation of 26 U.S.C. § 5861(d), and three counts being a felon in possession


       1
        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. Accordingly, we
hereby grant the parties’ request for a decision on the briefs and order the case
submitted without oral argument.

                                             2
of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Easterling subsequently

pleaded guilty to the § 846 methamphetamine conspiracy count and also to a one-

count information that charged him with violating 18 U.S.C. § 924(c)(1) by using

or carrying a firearm in connection with a drug trafficking offense. In exchange

for this plea, the government dismissed the remaining counts of the indictment.

       The district court sentenced Mr. Easterling to ninety months imprisonment

on the § 846 count and sixty months imprisonment on the § 924(c)(1) count, with

the sentences to run consecutively. Mr. Easterling appealed his sentence, and we

affirmed, although we did remand the case “to the district court for the

ministerial task of attaching its determination regarding [certain] disputed matters

to the presentence report.”    United States v. Easterling , 921 F.2d 1073, 1081

(10th Cir. 1990). The Supreme Court subsequently denied Mr. Easterling’s

certiorari petition.   Easterling v. United States , 500 U.S. 937 (1991).

       In April 1997, Mr. Easterling filed a 28 U.S.C. § 2555 petition for a writ of

habeas corpus. He alleged that the Supreme Court’s decision in      Bailey v. United

States , 516 U.S. 137 (1995), mandated the reversal of his § 924(c)(1) conviction

and the vacation of that sentence, and he also attacked the § 846 conviction on

two grounds. The government conceded Mr. Easterling’s         Bailey claim, and the

district court reversed Mr. Easterling’s § 924(c)(1) conviction and vacated his




                                            3
60-month sentence on that charge. Mr. Easterling withdrew one of his other

arguments, and the district court ruled against him on his remaining argument.

       The district court ordered a resentencing hearing and indicated that it

intended to consider enhancing Mr. Easterling’s § 846 sentence by two levels

based upon his possession of a firearm during the drug trafficking offense. Mr.

Easterling objected, arguing that because he had already fully discharged his §

846 sentence, an enhancement would violate both the Double Jeopardy and Due

Process Clauses. The district court, citing our decision in   United States v.

Mendoza , 118 F.3d 707 (10th Cir.)     cert. denied , 118 S. Ct. 393 (1997), rejected

Mr. Easterling’s argument and proceeded to enhance his § 846 sentence by two

levels pursuant to U.S.S.G. § 2D1.1(b)(1).

       At his original sentencing in 1989, Mr. Easterling received a two-level

sentence reduction for acceptance of responsibility; the two-level figure

represented the maximum reduction allowable under the Sentencing Guidelines

then in place. See U.S.S.G. § 3E1.1 (superseded 1992). At resentencing in 1997,

Mr. Easterling’s attorney, citing a 1992 amendment to the Guidelines, requested

that his client receive a three-level sentence reduction for acceptance of

responsibility. The district court, however, refused this request.

       The district court then resentenced Mr. Easterling on his § 846 conspiracy

conviction, sentencing him to a 107-month term of imprisonment followed by a


                                             4
three-year term of supervised release. Mr. Easterling filed a timely appeal of this

sentence. Mr. Easterling was scheduled to be released from prison in July of

1998.



                                      DISCUSSION

I.      Sentence Enhancement Pursuant to U.S.S.G. § 2D1.1(b)(1)

        As of the writing of this opinion, Mr. Easterling should have been released

from prison and commenced serving his term of supervised release. In spite of

this scheduled release from prison, Mr. Easterling asserts, and the government

does not contest, that a favorable resolution of this appeal could reduce his term

of supervised release.    Thus, he has standing to attack the district court’s

sentencing decisions,    see United States v. Chavez-Palacios    , 30 F.3d 1290, 1293

(10th Cir. 1994), and we may proceed to the merits of his appeal.

        Mr. Easterling first contends that the district court’s decision to resentence

him “on his discharged § 846 methamphetamine conviction is error as a matter of

law implicating due process and double jeopardy.” Aplt’s Br. at 7. We review

this purely legal question de novo.    See United States v. Cox , 83 F.3d 336, 338

(10th Cir. 1996).

        In United States v. Mendoza , 118 F.3d 707 (10th Cir.)     cert. denied , 118 S.

Ct. 393 (1997), the defendant was convicted of both conspiring to distribute


                                            5
narcotics in violation of 21 U.S.C. § 846 and of violating 18 U.S.C. § 924(c)(1)

by using or carrying a firearm in connection with that offense. After the Supreme

Court issued its decision in   Bailey , the defendant brought a 28 U.S.C. § 2255

habeas corpus petition challenging his § 924(c)(1) conviction. The district court

granted the petition, vacating the defendant’s § 924(c)(1) conviction and

sentence. However, the court then resentenced the defendant on his

accompanying § 846 conviction. Citing the fact that the defendant possessed a

dangerous weapon during the offense, the court invoked U.S.S.G. § 2D1.1(b)(1)

and enhanced his original sentence by two levels.

       On appeal, Mr. Mendoza contended that because his habeas petition had

only challenged his § 924(c)(1) conviction, the district court lacked jurisdiction

to resentence him on the § 846 conviction. We rejected this argument.

Recognizing that the § 924(c)(1) firearm conviction and the related narcotics

conspiracy conviction were “interdependent and result[ed] in an aggregate

sentence, not sentences which may be treated discretely,”   Mendoza , 118 F.3d at

710 (quotation omitted), we held that the district court had jurisdiction to

resentence the defendant. And while Mr. Mendoza did not raise any double

jeopardy or due process challenge    , we noted that such arguments could not

succeed under these circumstances, because a defendant who “challenged one of




                                            6
several interdependent sentences . . . does not have a legitimate expectation of

finality in a related, but unchallenged, sentence.”      Id.

       Finally, we observed that it was the § 924(c)(1) conviction that had

precluded the district court from applying U.S.S.G. § 2D1.1(b)(1) to the

defendant’s initial § 846 sentence.     Id. However, the subsequent vacation of the

§ 924(c)(1) sentence “removed any impediment to application of the §

2D1.1(b)(1) enhancement.”       Id. Thus, we concluded that the district court’s

decision to apply U.S.S.G. § 2D1.1(b)(1) on resentencing was appropriate.          Id.

       Mendoza recognizes that although a § 924(c)(1) conviction is technically

separate from the underlying drug conviction, without the drug conviction, there

can be no § 924(c)(1) conviction.      See 18 U.S.C. § 924(c)(1) (“Whoever, during

and in relation to any . . . drug trafficking crime . . . uses or carries a firearm,

shall . . . be sentenced to imprisonment for five years.”).    Mendoza ’s approach of

treating narcotics and § 924(c)(1) convictions as interdependent for resentencing

purposes has come to be known as “the sentencing package doctrine.”          See

United States v. Hicks , 146 F.3d 1198, 1203 (10th Cir. 1998). Although this

doctrine has recently been decried as a “judicially-created fiction” that gives

courts license “to ignore our long and well-settled law of finality of judgment,”

see id. at 1203 (McKay, J., dissenting), it nevertheless remains the law of this

Circuit, see id. at 1202-03.


                                              7
       The only potentially relevant difference between     Mendoza and the present

case is that Mr. Easterling, unlike Mr. Mendoza      , had completed his term of

imprisonment for his § 846 conspiracy conviction at the time the court

resentenced him. Whether a court may resentence a defendant under these

circumstances presents an issue of first impression in this Circuit. Mr. Easterling

asks us to follow Warner v. United States , 926 F. Supp. 1387 (E.D. Ark. 1996),

which confronted this very question. In that case,     the district court concluded

that resentencing would offend both the Due Process and Double Jeopardy

Clauses and, moreover, that it lacked jurisdiction to resentence the defendant.

Since Warner , at least four circuit courts have grappled with this same question.

See United States v. McClain , 133 F.3d 1191 (9th Cir.),     cert. denied , 118 S. Ct.

2386 (1998); United States v. Benbrook , 119 F.3d 338 (5th Cir. 1997);       United

States v. Smith , 115 F.3d 241 (4th Cir.),   cert. denied , 118 S. Ct. 315 (1997);

United States v. Smith , 103 F.3d 531 (7th Cir.),    cert. denied , 117 S. Ct. 1861

(1997). Unlike the district court in   Warner , though, these appellate courts have

relied on the sentencing package theory and unanimously held that resentencing

under such circumstances is permissible.      See McClain , 133 F.3d at 1193-94;

Benbrook , 119 F.3d at 340; Smith , 115 F.3d at 244-48; Smith , 103 F.3d at 535.

       These more recent decisions are consonant with our       Mendoza decision . In

Mendoza , we treated the defendant’s drug and firearms sentences as “an


                                             8
aggregate sentence, not sentences which may be treated discretely.” 118 F.3d at

710 (quotation omitted). Applying this same logic to Mr. Easterling’s case, we

conclude that the two sentences were, in essence, “one unified term of

imprisonment.”    Smith , 103 F.3d at 535. Thus, Mr. Easterling could possess no

legitimate expectation of finality in either sentence until he had fully discharged

them both.

       Mr. Easterling may not have his cake and eat it too. By petitioning for

vacatur of one portion of his amalgamated sentence, Mr. Easterling attacked the

entire sentence. We now join our sister circuits in holding that, on resentencing,

a district court is entitled to revisit a petitioner’s entire sentence, not just the

challenged portion of that sentence. Accordingly, we affirm the district court’s

decision to enhance Mr. Easterling’s § 846 sentence by two levels pursuant to

U.S.S.G. § 2D1.1(b)(1).

II     Sentence Reduction Pursuant to U.S.S.G. § 3E1.1

       Mr. Easterling also contends that his acceptance of responsible entitles him

to a three-level sentence reduction under U.S.S.G. § 3E1.1 rather than the two-

level reduction that the district court awarded him at resentencing. “Whether the

defendant has clearly demonstrated acceptance of responsibility is a factual

question we review only for clear error.”       United States v. Ivy , 83 F.3d 1266,

1292 (10th Cir.), cert. denied , 117 S. Ct. 253 (1996). However, whether the


                                            9
district court has applied the correct version of the Sentencing Guidelines is a

legal question we review de novo.    See United States v. Elias , 937 F.2d 1514,

1519 (10th Cir. 1991).

      In 1989, the Sentencing Guidelines provided that “[i]f the defendant

clearly demonstrates a recognition and affirmative acceptance of personal

responsibility for his criminal conduct, reduce the offense level by 2 levels.”

U.S.S.G. § 3E1.1(a) (repealed 1992). In 1992, Congress amended this section of

the Guidelines.   See U.S.S.G. App. C. amend. 459. The new Guideline kept the

two-level sentence reduction for defendants who “clearly demonstrate[d]

acceptance of responsibility for [their] offense[s].” U.S.S.G. § 3E1.1(a).

However, it made available an additional one-level sentence reduction for

defendants who, like Mr. Easterling, faced sentencing for a crime that carried an

offense level of 16 or greater, and who also:

      (1)    timely provid[ed] complete information to the government
             concerning his own involvement in the offense; or

      (2)    timely notif[ied] authorities of his intention to enter a plea of
             guilty, thereby permitting the government to avoid preparing
             for trial and permitting the court to allocate it resources
             efficiently.

U.S.S.G. § 3E1.1(b)(1)-(2).

      At resentencing in 1997, Mr. Easterling’s attorney requested that his client

receive “the benefit of any application guidelines which have gone into effect


                                          10
since 1989; one of those would be three levels for acceptance of responsibility.”

Rec. vol. II, at 13. The district judge asked Mr. Easterling’s attorney to cite

authority that would support his contention that the newer Guideline was

applicable at resentencing. Mr. Easterling’s attorney, though, failed to do so.

When the judge asked the government to state its position on the issue, the

government responded that “we don’t feel that the defendant is subject to that. In

addition, the third point is basically for him to timely give complete information

to the government. . . . He did not cooperate. . . . That’s the government’s

position in 1989 and it’s still the position eight years later.”   Id. at 14. Following

this colloquy, the judge ruled in favor of the government, stating that “[a]bsen[t]

some authority to the contrary, I am satisfied that the two-point credit would be

applicable on a sentencing such as this, as opposed to the newer guideline of

three.” Id.

       Mr. Easterling argues that the transcript of the resentencing hearing

demonstrates that the district erroneously applied the 1989 version of § 3E1.1,

when it should have applied the 1997 version of that Guideline. The

government, however, reads the transcript differently. Although it concedes that

the district court should have applied the newer Guideline, the government

argues that the sentencing transcript demonstrates that the court did, in fact,

apply that Guideline. Thus, the government contends that the court understood


                                               11
that it possessed the authority to reduce Mr. Easterling’s sentence by three levels

but that it ultimately opted for a mere two-level reduction because it concluded

that the facts did not warrant awarding him an additional reduction point.

       It is well-settled that when a district court vacates a sentence and

resentences a defendant, the court “is governed by the guidelines in effect at the

time of resentence, subject of course to the ex post facto clause.”     United States

v. Torres , 99 F.3d 360, 362 (10th Cir. 1996) (quotation omitted),      cert. denied ,

117 S. Ct. 1273 (1997); accord United States v. Ziegler , 39 F.3d 1058, 1063-64

(10th Cir. 1994). At the resentencing hearing, however, the government, without

citing any authority, took the opposite position.     See Rec. vol. II, at 14.

Although it now concedes that Mr. Easterling’s resentencing was governed by the

1997 rather than the 1989 Sentencing Guidelines, the government now argues

that the district court’s decision rested on a secondary argument it presented at

resentencing–that, based on the facts of Mr. Easterling’s case, he was not entitled

to the third sentence reduction point.

       However, the mere fact that the government presented this argument does

not mean that the judge found it persuasive. In ruling on this issue, the judge

never referred to the facts of Mr. Easterling’s case. Rather, he simply stated that

“[a]bsen[t] some authority to the contrary, I’m satisfied the two-point credit

would be applicable on a sentencing such as this,      as opposed to the newer


                                             12
guideline of three .” Id. (emphasis supplied). This statement strongly suggests

that the judge’s ruling was driven by his belief that he lacked the    legal authority

to apply the newer Guideline.

       Moreover, we are not swayed by the government’s attempt to redefine

“authority.” Authority, quite simply, means “[l]egal power,” the “right . . . to

act.” Black’s Law Dictionary       133 (6th ed. 1990). The government has not cited

any source, nor have we discovered any, that supports its contention that

“authority” means “facts.”

       When the parties came to the resentencing hearing, neither came prepared

to address the question of which version of the Sentencing Guidelines applied to

Mr. Easterling’s resentencing. Lacking any assistance from the parties, the

district court apparently concluded that it did not possess the legal authority to

reduce Mr. Easterling’s sentence by three levels. But because the court did, in

fact, possess such authority,    see Torres , 99 F.3d at 362; Ziegler , 39 F.3d at 1063-

64, we must vacate its decision to reduce Mr. Easterling’s sentence by only two

levels.

       Under U.S.S.G. § 3E1.1(b), though, Mr. Easterling may only earn the third

sentence reduction point if he is able to demonstrate either that he timely (1)

provided complete information to the government concerning his offense or (2)

notified authorities of his intention to plea guilty.   See U.S.S.G. § 3E1.1. The


                                              13
record of the resentencing hearing reveals that the district court never explored

these matters. Accordingly, we remand this case so that the district court may

conduct further proceedings to determine whether Mr. Easterling is entitled to a

third sentence reduction point under U.S.S.G. § 3E1.1(b).



                                 CONCLUSION

      We hereby AFFIRM the district court’s decision to enhance Mr.

Easterling’s § 846 sentence by two levels pursuant to U.S.S.G. § 2D1.1(b)(1),

VACATE the court’s decision to reduce his sentence by only two levels under

U.S.S.G. § 3E1.1, and REMAND so that the court may conduct further

proceedings to determine whether he is entitled to a third sentence reduction

point under U.S.S.G. § 3E1.1(b).




                                         14
