              ON SUPPLEMENTAL BRIEFING

                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.
                                                 No. 05-10
RICHARD THOMAS STITT, a/k/a Patrick
V. Hardy, a/k/a Tom Tom,
               Defendant-Appellant.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.
                                                 No. 05-11
RICHARD THOMAS STITT, a/k/a Patrick
V. Hardy, a/k/a Tom Tom,
                Defendant-Appellee.
                                        
           Appeals from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
                Raymond A. Jackson, District Judge.
                     (CR-98-47; CA-03-356-2)

                      Argued: January 31, 2006

                      Decided: March 24, 2006

       Decided on Supplemental Briefing: August 16, 2006

   Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
2                       UNITED STATES v. STITT
Dismissed and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Widener and Judge Williams joined. Judge
Williams wrote a separate concurring opinion.


                             COUNSEL

ARGUED: Amy Leigh Austin, Assistant Federal Public Defender,
Gerald Thomas Zerkin, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Richard Thomas Stitt. Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Criminal Division, Washington, D.C.,
for the United States. ON BRIEF: Frank W. Dunham, Jr., Federal
Public Defender, Alexandria, Virginia; Jeffrey L. Stredler, WIL-
LIAMS MULLEN, Norfolk, Virginia, for Richard Thomas Stitt. Paul
J. McNulty, United States Attorney, Howard J. Zlotnik, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for the United States.


                              OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   Richard Thomas Stitt filed this habeas action pursuant to 28 U.S.C.
§ 2255 (2000) after exhausting all direct appeals of his convictions of
and capital sentence for drug, firearms, and capital murder offenses.
The district court rejected Stitt’s claims pertaining to his guilt, but
vacated Stitt’s capital sentence after finding that Stitt’s counsel pro-
vided constitutionally ineffective representation during the sentencing
phase of Stitt’s trial. The Government appealed the district court’s
judgment vacating Stitt’s sentence, and we granted Stitt a certificate
of appealability on his claim that his lawyer was constitutionally inef-
fective during the guilt phase of Stitt’s trial. We heard argument in
this case and thereafter published an opinion affirming the judgment
of the district court in all respects and remanding the case for resen-
tencing. See United States v. Stitt, 441 F.3d 297 (4th Cir. 2006).

  Prior to the issuance of the mandate in this case, we discovered
Supreme Court precedent indicating that we lacked jurisdiction over
                         UNITED STATES v. STITT                         3
this appeal. See Andrews v. United States, 373 U.S. 334 (1963).
Because we have an obligation to inquire into jursidictional issues sua
sponte, see, e.g., Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 304 (4th Cir. 2006), we withheld the issuance of the man-
date and directed the parties to submit supplemental briefs addressing
the jurisdictional question. After consideration of those briefs and the
relevant legal authorities, we now conclude that we lack jurisdiction
over this appeal. Accordingly, we recall our earlier opinion, vacate
our judgment, and dismiss the appeal for lack of jurisdiction.

   Section 2255 provides that, if the district court finds that the peti-
tioner is entitled to relief, "the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate." 28
U.S.C. § 2255 ¶ 2. The statute also provides that "[a]n appeal may be
taken to the court of appeals from the order entered on the motion as
from a final judgment on application for a writ of habeas corpus." Id.
¶ 4.

   In Andrews, the petitioners challenged the constitutionality of their
sentences under § 2255. See Andrews, 373 U.S. at 336. The district
court granted them relief, vacated their sentences, and ordered that
they be resentenced. The Government appealed, and the district court
stayed petitioners’ resentencing. Id. The court of appeals reversed and
remanded, but the Supreme Court set aside the judgment of the court
of appeals, holding that the court of appeals lacked jurisdiction. See
id. at 340. The Supreme Court explained that § 2255 provides a list
of possible remedies that include discharging the prisoner, resentenc-
ing him, granting a new trial, or correcting the sentence. See id. at 339
(quoting 28 U.S.C. § 2255 ¶ 2). The Court reasoned that the district
court’s judgment did not become final until it granted the appropriate
remedy: "Where, as here, what was appropriately asked and appropri-
ately granted was the resentencing of the petitioners, it is obvious that
there could be no final disposition of the § 2255 proceedings until the
petitioners were resentenced." Id. at 339.

    The Court explained that "[t]he basic reason for the rule against
piecemeal interlocutory appeals in the federal system is particularly
apparent in the cases before us. Until the petitioners are resentenced,
it is impossible to know whether the Government will be able to show
4                        UNITED STATES v. STITT
any colorable claim of prejudicial error." Id. at 340. Subsequent cases
interpreting Andrews squarely hold that a district court’s judgment
vacating a sentence does not become final — and thus is not appeal-
able — until the court has resentenced the defendant. See, e.g., United
States v. Martin, 226 F.3d 1042, 1048 (9th Cir. 2000).

   In arguing that we should treat the district court’s judgment as
final, the Government cites United States v. Gordon, 156 F.3d 376
(2d. Cir. 1998), and United States v. Allen, 613 F.2d 1248 (3d Cir.
1980). But in those cases the judgment of the district court vacated
the convictions and ordered a new trial. Gordon, 156 F.3d at 377;
Allen, 613 F.2d at 1249-50. Even if we were inclined to follow those
cases, a question we need not decide here, they certainly do not gov-
ern the appealability of the order at issue here, which, like that in
Andrews, 373 U.S. at 339, vacated a sentence and "returned [the case]
to the trial court" for resentencing. In such cases, Andrews mandates
that there is no final judgment "until the prisoners [a]re resentenced."
Id. at 340.

   We recognize that, should it decide to reconsider this issue, the
Supreme Court may adopt the Government’s argument and hold that
a district court’s order vacating a capital sentence is an appealable
final order. However, if a Supreme Court precedent "has direct appli-
cation in a case," we must follow it, leaving to the Supreme Court
"the prerogative of overruling its own decisions." Agostini v. Felton,
521 U.S. 203, 238 (1997). In this case, a Supreme Court precedent,
Andrews, holds that an order vacating a sentence does not become
final until resentencing occurs; Andrews is controlling and we must
follow it.

   Accordingly, because Stitt has not yet been resentenced, we find
that we lack jurisdiction over this appeal.* We dismiss the appeal for
lack of jurisdiction and remand to the district court for resentencing.

   *The district court’s order denying Stitt relief as to his guilt phase
claims will also not become final until Stitt is resentenced. See Corey v.
United States, 375 U.S. 169, 174 (1963); United States v. Lanham, 631
F.2d 356, 357 (4th Cir. 1980) ("[I]n a criminal case, final judgment
means conviction and sentence."). Thus, we lack jurisdiction over Stitt’s
challenge to his convictions as well as the Government’s appeal of the
district court’s judgment vacating Stitt’s sentence.
                        UNITED STATES v. STITT                         5
                                      DISMISSED AND REMANDED

WILLIAMS, Circuit Judge, concurring:

   I fully concur in Judge Motz’s opinion. I write separately to elabo-
rate on my view that we lack jurisdiction over Stitt’s appeal. While
I agree with the Government that our holding may lead to an ineffi-
cient allocation of resources, I believe that the text of 28 U.S.C.A.
§ 2255 (West Supp. 2006) — and the Supreme Court’s prior interpre-
tation of this statute — compels us to conclude that jurisdiction is
lacking over an appeal of a district court order that grants a § 2255
petitioner a future capital resentencing hearing, but does not actually
accomplish the resentencing itself.

    As Judge Motz notes, Andrews v. United States, 373 U.S. 334
(1963), held that appellate jurisdiction is lacking over a district
court’s order that contemplates a § 2255 petitioner will be resentenced
at some time in the future but does not actually accomplish the task
of resentencing the petitioner. Id. at 338-340. This holding was based
on the Supreme Court’s interpretation of what is now paragraphs 2
and 4 of § 2255.1 Paragraph 2 provides that if the district court deter-
mines collateral relief is appropriate, it may remedy the petitioner’s
unlawful conviction or sentence in one of four ways: "the court . . .
shall [1] discharge the prisoner or [2] resentence him or [3] grant a
new trial or [4] correct the sentence as may appear appropriate." 28
U.S.C.A. § 2255. Paragraph 4 provides that "[a]n appeal may be taken
to the court of appeals from the order entered on the [§ 2255] motion.
. . ." Id. According to the Supreme Court, a district court’s order that
contemplates a future sentencing is preliminary to an order actually
"resentenc[ing the petitioner]" under paragraph 2, and is therefore not
"the order entered on the [§ 2255] motion" under paragraph 4.
Andrews, 373 U.S. at 340. Accordingly, no appeal can be taken from
such an order. Id.

   Here, the district court vacated Stitt’s sentence and entered an order
stating that it would schedule a hearing to determine Stitt’s appropri-
  1
   Although Congress has modified 28 U.S.C.A. § 2255 (West Supp.
2006) since the Supreme Court decided Andrews v. United States, 373
U.S. 334 (1963), the relevant statutory language has not changed.
6                         UNITED STATES v. STITT
ate sentence. The district court, however, did not actually conduct a
resentencing hearing, and, to this day, it has not done so. Accordingly,
under a straightforward application of Andrews, the district court’s
order is not appealable.

   In seeking to avoid this conclusion, the Government contends that
Andrews is distinguishable on the grounds that the district court here
ordered that Stitt be given a future capital resentencing hearing. At
a capital sentencing hearing, unlike a non-capital sentencing hearing,
the convicted defendant is entitled to a hearing before a jury on the
issue of whether death is the appropriate penalty for his crime. See 18
U.S.C.A. § 3593 (West 2000); see also Ring v. Arizona, 536 U.S. 584
(2002). According to the Government, allowing appellate review of
the district court’s order granting a future capital resentencing hearing
avoids the waste of resources — and in particular, all of the proce-
dures that attend the jury right — that would arise if appellate review
were postponed until after the capital resentencing hearing has
occurred and the appellate court has determined that resentencing was
not warranted in the first place. In support of its argument, the Gov-
ernment points out that appellate jurisdiction exists over an order
granting a § 2255 petitioner a future new trial on the issue of guilt,
see United States v. Gordon, 156 F.3d 376, 378-79 (2d Cir. 1998);
United States v. Allen, 613 F.2d 1248, 1250-52 (3d Cir. 1980); United
States v. Dunham Concrete Prods., Inc., 501 F.2d 80, 81 (5th Cir.
1974), a proceeding at which, of course, the petitioner would also
have the right to a jury.2

   The Government’s logic is seductive. Indeed, I surmise that one
reason Congress provided an order granting a future new trial on the
    2
   Although Judge Motz’s opinion reserves judgment on this issue, see
ante at 4, it is plain enough that a district court’s order granting a future
new trial is appealable. If, as in Andrews, the district court’s order grant-
ing a future resentencing hearing was not appealable because one of the
four remedies authorized by § 2255 is the order accomplishing the "re-
sentenc[ing]" itself, it follows that a district court’s order granting a
future new trial is appealable because the "grant [of a future] new trial,"
unlike the grant of a future resentencing, is one of the four remedies
authorized by § 2255. See United States v. Gordon, 156 F.3d 376 (2d Cir.
1998); United States v. Allen, 613 F.2d 1248 (3d Cir. 1980).
                         UNITED STATES v. STITT                          7
issue of guilt is appealable is that it would waste litigants’ and the dis-
trict courts’ resources to conduct the new trial — with all of its atten-
dant procedural requirements (selecting the jury, making opening and
closing arguments to the jury, jury deliberations, etc.) — only for the
appellate court to determine, after the trial was completed, that it was
not necessary in the first place. Likewise, the procedures required to
conduct a capital resentencing hearing are likely so similar to the guilt
phase of a criminal trial in this regard that it would be sensible also
to treat an order granting a future capital resentencing hearing as
appealable.

   In my view, however, the text of § 2255, coupled with Andrews’
prior interpretation thereof, compels a conclusion that the district
court’s order granting Stitt a future capital resentencing hearing is not
appealable, irrespective of the procedural similarities that may exist
between the guilt phase of a criminal trial and a capital sentencing.
See Allen, 613 F.2d at 1250 ("The crucial question in [§ 2255 cases]
in determining finality is whether the district court has entered one of
the orders specified in paragraph [2] of § 2255."). As noted, § 2255
provides, inter alia, that the district court may enter an order either
"grant[ing the petitioner a future] new trial" or "resentenc[ing the peti-
tioner]" and that such orders are appealable. A "trial" is "[a] formal
judicial examination of evidence and determination of legal claims in
an adversary proceeding." Black’s Law Dictionary 1543 (8th ed.
2004). This definition — which makes no mention of a jury — would
seem to encompass both the guilt phase of a trial and a sentencing
hearing, capital or otherwise. After all, every sentencing hearing, like
every criminal trial, involves an examination of facts and law.
Accordingly, if § 2255 provided that only orders "grant[ing the peti-
tioner a future] new trial" were appealable, I might be persuaded that
an order granting a future resentencing hearing was appealable. But
that is not what § 2255 provides. Rather, it separately provides that
the order imposing a sentence — pursuant to a "resentenc[ing]" —
upon the petitioner is also appealable, and, by logical implication, that
orders granting a future resentencing hearing are not appealable.
Indeed, that is the holding of Andrews. 373 U.S. at 339.

   If an order granting the petitioner a future "resentenc[ing]" is not
appealable and an order "grant[ing the petitioner a future] new trial"
is appealable, it is clear that the terms "resentenc[ing]" and "trial" are
8                       UNITED STATES v. STITT
mutually exclusive and, accordingly, they must have different mean-
ings. Indeed, a "sentence" is "[t]he judgment that a court formally
pronounces after finding a criminal defendant guilty; the punishment
imposed on a criminal wrongdoer." Black’s Law Dictionary 1393 (8th
ed. 2004). I therefore conclude that § 2255’s reference to a "resen-
tencing" must refer to "a new proceeding designed to determine the
punishment imposed on a criminal wrongdoer" and, by process of
elimination, that its reference to a "new trial" must refer to "a new
proceeding designed to determine whether a defendant should be con-
victed as guilty of the charged crime."

   Applying these definitions, it becomes clear that a future capital
resentencing hearing, like a future non-capital resentencing hearing,
is a "resentenc[ing]" and not a "new trial" for purposes of § 2255.
While a capital sentencing shares some of the procedural require-
ments afforded defendants at the guilt phase of a criminal trial the
purpose of a capital sentencing hearing, like the purpose of any sen-
tencing hearing, is to determine the proper punishment to be imposed
on a criminal wrongdoer, not to determine whether a defendant
should be convicted of the charged crime. Accordingly, under
Andrews, a district court’s order granting a future capital resentencing
hearing, such as the order at issue here, is not appealable.

   This conclusion is not undercut by Ring v. Arizona, 536 U.S. 584
(2002), which held that the Sixth Amendment requires aggravating
circumstances be proven to a jury before the death penalty may be
imposed because the aggravating circumstances "operate as the func-
tional equivalent of an element of a greater offense" than a non-
capital version of the same offense, id. at 609 (internal quotation
marks omitted), nor by Sattazahn v. Pennsylvania, 537 U.S. 101
(2003), which interpreted Bullington v. Missouri, 451 U.S. 430
(1981), to hold that, for the same reason, the Fifth Amendment’s Dou-
ble Jeopardy Clause applies to capital sentencing proceedings, id. at
111 (plurality opinion of Scalia, J., joined by Rehnquist, C.J., and
Thomas, J.), 125 n.6 (opinion of Ginsburg, J., joined by Stevens, J.,
Souter, J., and Breyer, J., dissenting on other grounds). The question
here is not whether a capital sentencing hearing is "the functional
equivalent" of a trial for Sixth or Fifth Amendment purposes, but
whether a future capital sentencing hearing is better described as a
"resentenc[ing]" or a "new trial" for purposes of § 2255. Considering
                          UNITED STATES v. STITT                            9
that the statutory provision authorizing district courts to conduct capi-
tal sentencing hearings call such proceedings "sentencing hearing[s]
to determine the punishment to be imposed," 18 U.S.C.A. § 3593(b)
— not "trials to determine whether the defendant should be con-
victed" — and, accordingly, that the end result of a capital sentencing
hearing is a sentence — not a conviction — I cannot conclude that
recent development’s in the Supreme Court’s Sixth and Fifth Amend-
ment jurisprudence has affected the meaning of § 2255. After all,
§ 2255 distinguishes between "resentenc[ings]" and "new trial[s]," not
"resentenc[ings]" and "those proceedings that are the functional
equivalent of a new trial for Sixth and Fifth Amendment purposes."3
  3
    In further support of its argument that we have jurisdiction over this
appeal, the Government argues that if the jurors at Stitt’s future capital
resentencing hearing find that the Government failed to prove one or
more aggravating circumstances beyond a reasonable doubt, the Double
Jeopardy Clause will prohibit it from appealing the district court’s deci-
sion to grant Stitt a capital resentencing hearing in the first place. See
Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003) (holding that
although the Double Jeopardy Clause applies to capital sentencing hear-
ings, it does not prohibit a second capital sentencing hearing when the
first capital jury made no findings with respect to the aggravating cir-
cumstances).
   I disagree. Although the Double Jeopardy Clause prohibits "subjecting
the defendant to postacquittal factfinding proceedings," Smalis v. Penn-
sylvania, 476 U.S. 140, 146 (1986), it does not prohibit the Government
from appealing an acquittal if the defendant would not be exposed to a
second trial were the appeal successful. See, e.g., Smith v. Massachusetts,
125 S. Ct. 1129, 1134 (2006) ("When a jury returns a verdict of guilty
and a trial judge (or an appellate court) sets aside that verdict and enters
a judgment of acquittal, the Double Jeopardy Clause does not preclude
a prosecution appeal to reinstate the jury verdict of guilty."); United
States v. Wilson, 420 U.S. 332, 345 (1975) (noting, in case where Gov-
ernment appealed the district court’s grant of motion for judgment n.o.v.
following jury verdict of guilty, that "[a]lthough review of any ruling of
law discharging a defendant obviously enhances the likelihood of con-
viction and subjects him to continuing expense and anxiety, a defendant
has no legitimate claim to benefit from an error of law when that error
could be corrected without subjecting him to a second trial before a sec-
ond trier of fact"). Even if, therefore, the Government fails at Stitt’s capi-
tal resentencing hearing to prove one or more aggravating circumstances
10                        UNITED STATES v. STITT
   In short, I share the Government’s concerns that our holding that
we lack appellate jurisdiction over a district court’s order contemplat-
ing a future capital resentencing hearing may, in some cases, lead to
an inefficient allocation of resources. I believe, however, for the rea-
sons stated by Judge Motz and those I have stated above, that this
holding is compelled by the text of § 2255 and Andrews’ prior inter-
pretation thereof. To conclude otherwise would abandon the text in
favor of my own policy judgment. See Sigmon Coal Co., Inc. v. Apfel,
226 F.3d 291, 308 (4th Cir. 2000), aff’d 534 U.S. 438 (2002) ("[E]ven
if . . . the literal text of the statute produces a result that is, arguably,
somewhat anomalous — we are not simply free to ignore unambigu-
ous language because we can imagine a preferable version."). The
opinions in this case should place Congress on notice of the problems
inherent in the text of § 2255, and Congress may fix those problems
if it sees fit to do so.

     With these observations, I concur in Judge Motz’s opinion.

beyond a reasonable doubt, we may, upon appeal, "simply order the
[original capital sentencing] jury’s [decision to impose the death penalty]
reinstated; no new factfinding would be necessary, and the defendant
would not be twice placed in jeopardy." Arizona v. Rumsey, 467 U.S.
203, 212 (1984).
