                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUN 24 1998

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 97-7095
 v.
                                                  (D.C. No. 96-CV-563-S)
                                                          (EOK)
 HAROLD ONEE BEHRENS, also
 known as Buddy Behrens,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY 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. The cause is

therefore ordered submitted without oral argument.

      In this 28 U.S.C. § 2255 proceeding, Harold Onee Behrens challenges the

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
district court’s jurisdiction to resentence him on his remaining related drug

trafficking convictions after vacating his conviction for using a firearm during the

course of a drug offense. We hold the district court has jurisdiction, and affirm

the district court’s resentencing.

      Mr. Behrens, along with several other co-defendants, was convicted of

multiple drug offenses and two counts of using and carrying a firearm in relation

to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On direct appeal,

we vacated Mr. Behrens’ convictions on three counts, including one of the section

924(c) firearm counts. United States v. Johnson, 977 F.2d 1360 (10th Cir. 1992).

The district court subsequently entered an order correcting Mr. Behrens’ judgment

and sentence in accordance with our decision in Johnson.

      Following the disposition of Mr. Behrens’ direct appeal, the United States

Supreme Court decided Bailey v. United States, 116 S. Ct. 501 (1995). In light of

Bailey, Mr. Behrens filed a petition under 28 U.S.C. § 2255 seeking to vacate his

remaining section 924(c) firearm conviction. The district court granted Mr.

Behrens’ petition and ordered that his sentence be recalculated for the purpose of

resentencing him on his remaining related drug convictions. The amended

presentence report recommended a two-level enhancement under U.S.S.G. §

2D1.1(b)(1) for possession of a firearm during the drug offenses. This

enhancement was not available to the district court in Mr. Behrens’ original


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sentencing because of his section 924(c) convictions. See U.S.S.G. § 2K2.4,

comment. (backg’d) (enhancement under § 2D1.1(b)(1) precluded where

defendant also convicted under 18 U.S.C. § 924(c)). Mr. Behrens unsuccessfully

objected to this two-level enhancement. The district court concluded that Mr.

Behrens was subject to the section 2D1.1(b)(1) enhancement and resentenced him

to concurrent terms of 240 months for the three remaining drug counts and a

concurrent term of 60 months for the remaining conspiracy count.

      Mr. Behrens’ sole argument on appeal is that the district court lacked

jurisdiction to resentence him on his remaining convictions. We review de novo

the district court’s jurisdiction to resentence a defendant on drug and conspiracy

convictions. United States v. Moore, 83 F.3d 1231, 1233 (10th Cir. 1996). We

recently addressed the precise issue before us in a case involving virtually

identical circumstances. In United States v. Mendoza, 118 F.3d 707, 708 (10th

Cir. 1997), we held that a “district court, following the vacatur of a conviction for

using a firearm during the course of a drug offense, see 18 U.S.C. § 924(c), in a

28 U.S.C. § 2255 proceeding, has jurisdiction to resentence the defendant on

remaining related convictions.” As Mr. Behrens concedes, “[n]o significant

difference has been identified between the facts of this case, and the facts of

Mendoza, which would compel a different result.” Aplt. Br. at 9. The district

court here clearly had jurisdiction to resentence Mr. Behrens on his remaining


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convictions.

      We AFFIRM the district court. 1

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




      1
        After the principal briefs in this appeal were filed, Mr. Craig Bryant, Mr.
Behrens’ original counsel, moved for leave to substitute counsel. We entered an
order substituting Mr. Stephen J. Greubel as counsel for Mr. Behrens. Pending
before us is a motion by Mr. Greubel to withdraw as counsel for the appellant.
We grant Mr. Greubel’s application to withdraw as counsel.

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