                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                       PUBLISH
                                                                               JUN 27 1997
                    UNITED STATES COURT OF APPEALS
                                                                           PATRICK FISHER
                                                                                    Clerk
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 96-3415

 BRANDON J. SMITH,

               Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                        (D. Ct. No. 93-CR-10092)


Submitted on the briefs: *

Kenneth G. Gale, Focht, Hughey & Calvert, Wichita, Kansas, for Defendant-
Appellant.

Jackie N. Williams, U.S. Attorney, and Michael G. Christensen, Assistant U.S.
Attorney, Wichita, Kansas, for Plaintiff-Appellee.


Before TACHA, BALDOCK, and LUCERO, Circuit Judges.




      *
        After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in 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.
TACHA, Circuit Judge.

      This appeal is from a judgment and sentence imposed upon defendant Smith

after this court’s reversal of the appellant’s conviction on Count III of an

indictment under which appellant had been convicted of a firearms count

subsequently reversed by the United States Supreme Court after Bailey v. United

States, 116 S.Ct. 501 (1995). Defendant appeals, alleging that the district court

erred in enhancing defendant’s sentence on resentencing pursuant to U.S.

Sentencing Guidelines § 2D1.1. We affirm.

      Defendant was convicted after a jury trial in 1994 of a drug count and a

related firearms count. At that time, defendant was sentenced by the district court

to 63 months on the drug count and 60 months on the firearms count to run

consecutively, a five-year supervised release, a fine of $1000, and a $100 special

assessment. This court affirmed defendant’s conviction in United States v. Smith,

63 F.3d 956 (10th Cir. 1995). The United States Supreme Court granted

defendant’s petition for writ of certiorari, vacated the judgment and remanded the

case to this court for further consideration in light of Bailey v. United States, 116

S.Ct. 501 (1995). Smith v. United States, 116 S. Ct. 900 (1996). Following that

remand, this court reversed the defendant’s conviction on the firearms count and

remanded the case with directions that the conviction and sentence be set aside.

United States v. Smith, 82 F.3d 1564 (10th Cir. 1996). Upon remand, the district


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court resentenced defendant, setting aside the conviction on the firearms count

and finding that an enhancement on the remaining drug count was appropriate

pursuant to U.S. Sentencing Guidelines § 2D1.1. Prior to the reversal on the

firearms count, the district court was precluded from enhancing defendant’s

sentence pursuant to this section. U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1); U.S. Sentencing Guidelines Manual § 2K2.4, comment 2.

Vacating the firearms count, which charged a violation of 18 U.S.C. § 924(c)(1),

removed the double counting problem that prevented the district court from

enhancing defendant’s sentence under § 2D1.1(b)(1), at the same time it was

imposing the mandatory consecutive five-year sentence under § 924(c)(1). See

United States v. Lang, 81 F.3d 955, 963 (10th Cir. 1996).

      In vacating defendant’s sentence following the remand from the Supreme

Court, this court stated:

      Accordingly, we reverse Smith’s conviction under 18 U.S.C.
      § 924(c)(1) on Count III, and remand with directions that the
      conviction and sentence thereon be set aside.

Smith, 82 F.3d at 1568. Defendant argues on appeal here that this language

precluded the district court from adding the enhancement under U.S. Sentencing

Guidelines Manual § 2D1.1(b)(1). Defendant argues that the use of the words

“set aside” in the order from this court to the district court precluded the district

court from reconsidering the enhancement on the drug count and violated the


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mandate rule upon remand. Defendant essentially argues that the words “set

aside” mean something different from “vacate” or “resentence” upon remand. We

disagree. The use of the words “set aside” in this context have the same

functional meaning as “vacate” or “resentence” for the purposes of district court

consideration of a sentence upon remand. Once the sentence on the firearms

charge is “set aside” the district court is no longer prohibited from considering

appropriate enhancements on the remaining drug count. A sentence under the

U.S. Sentencing Guidelines constitutes a sentencing package which takes into

account all counts upon which the defendant has been convicted. When one of

those counts is set aside or vacated, the district court is free to reconsider the

sentencing package de novo unless the appellate court specifically limited the

district court’s discretion on remand. United States v. Webb, 98 F.3d 585, 587-88

(10th Cir. 1996); United States v. Ortiz, 25 F.3d 934, 935 (10th Cir. 1994). The

provisions of the U.S. Sentencing Guidelines operate interdependently.

Precluding the district court from reconsidering the entire sentencing package

after one count of conviction is vacated would be inconsistent with the purposes

and structure of the U.S. Sentencing Guidelines. We therefore hold that the use

of the words “set aside” are equivalent to the use of the words “vacate” or

“resentence” following remand under the circumstances presented in this case.

The judgment and sentence of the district court are AFFIRMED.


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