                                                                  [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                   FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                     2/18/03
                                  No. 97-2224
                                                              THOMAS K. KAHN
                                                                  CLERK
                         D. C. Docket No. 93-CR-04046-01



UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

      versus

EVERETT DALE WATKINS, a.k.a. Dale Watkins,

                                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                       for the Northern District of Florida


                                 (July 28, 1998)


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.

                                             2
      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 (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 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


      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.

                                            3
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, 118 S.Ct. 315 (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

                                             4
circuits in concluding 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.




       3
          See e.g. United States v. Handa, 122 F.3d 690, 691-92 (9th Cir. 1997), cert.
denied, 118 S.Ct. 869 (1998); United States v. Mendoza, 118 F.3d 707 (10th Cir.), cert.
denied, 118 S.Ct. 393 (1997); United States v. Morris, 116 F.3d 501 (D.C. Cir.), cert.
denied, 118 S.Ct. 431 (1997); United States v. Smith, 115 F.3d 241 (4th Cir.), cert. denied,
118 S.Ct. 315 (1997); Gardiner v. United States, 114 F.3d 734, 735-36 (8th Cir.), cert.
denied, Guitierrez-Silva v. U.S., 118 S.Ct. 318 (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, 118 S.Ct. 224 (1997); United States v. Rodriguez, 112 F.3d 26, 30-31 (1st Cir.),
cert. denied, 118 S.Ct. 237 (1997); United States v. Binford, 108 F.3d 723, 728-29 (7th
Cir.), cert. denied, 117 S.Ct. 2530 (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, 117 S.Ct. 1861 (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, 118 S.Ct. 430
(1997).

                                              5
       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 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



       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).

                                              6
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 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

                                               7
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 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 (1980) (“the pronouncement of sentence has never

carried the finality that attaches to an acquittal.”). See also Monge v. California, 66 LW

                                              8
4629 (June 26, 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-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.



       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.

                                                9
      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.




                                            10
