                        United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT

                             _____________

                             No. 96-2544WM
                             _____________

United States of America,         *
                                  *
                Appellee,         *   Appeal from the United States
                                  *   District Court for the Western
     v.                           *   District of Missouri.
                                  *
Charles H. Harrison, Jr., also    *
known as Chuck,                   *
                                  *
                Appellant.        *
                           _____________

                   Submitted:      March 11, 1997

                       Filed: May 9, 1997
                           _____________

Before FAGG, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          _____________

FAGG, Circuit Judge.


     Charles Harrison pleaded guilty to conspiracy to distribute
cocaine base, see 21 U.S.C. §§ 841(a), 846 (1994), and using a gun
during the drug crime, see 18 U.S.C. § 924(c).           The district court
sentenced Harrison to 121 months for the drug offense and sixty
consecutive months for the gun offense.             After Harrison lost his
direct appeal, the Supreme Court decided Bailey v. United States,
116 S. Ct. 501 (1995), which narrowed the definition of “using” a
firearm within the meaning of § 924(c).           With this new ammunition,
Harrison filed a 28 U.S.C. § 2255 motion to vacate his gun
sentence.    The   Government    conceded       Harrison’s   underlying   gun
conviction should be reversed in light of Bailey, but argued the
district court should enhance Harrison’s drug sentence for his
possession of a firearm.     See U.S. Sentencing Guidelines Manual §
2D1.1(b)(1) (1996).      Because the Guidelines bar the § 2D1.1(b)(1)
enhancement as double counting when a defendant is convicted of
violating § 924(c), see id. § 2K2.4 n.2; United States v. Friend,
101 F.3d 557, 558-59 (8th Cir. 1996), the district court did not
consider whether the enhancement applied at Harrison’s original
sentencing.


     Following a resentencing hearing, the district court vacated
the sixty month term originally imposed on the erroneous gun
conviction.     The district court found the firearm possession
enhancement applied and imposed a revised term of 151 months
imprisonment on the drug conviction, thirty months less than
Harrison’s total original sentence.         The district court told
Harrison, “The sentence [imposed] today is the sentence that you
would have received [on the drug charge at your original sentencing
in May 1992] had there not been a gun count mandating a consecutive
five year sentence . . . .”        Harrison appeals his revised drug
sentence.   We affirm.


     Because Harrison did not challenge the drug conviction or
sentence in his § 2255 motion, Harrison contends the district court
lacked jurisdiction to resentence him on the drug conviction and
should have simply vacated his erroneous gun sentence.    If Harrison
had successfully attacked his gun conviction on direct appeal
rather than collaterally, our earlier cases would permit his
resentencing.   We have held that when Bailey requires reversal of
a § 924(c) conviction on direct appeal, the district court may
consider whether an unchallenged drug sentence should be enhanced
for possession of a firearm.     See United States v. Behler, 100 F.3d
632, 640 (8th Cir. 1996); United States v. Rehkop, 96 F.3d 301, 306
(8th Cir. 1996); United States v. Thomas, 93 F.3d 479, 488 (8th
Cir. 1996).   In this case, we must decide whether similar


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resentencing is permissible after reversal of a gun conviction in
a collateral proceeding.       Agreeing with the circuits that have
decided the issue, we conclude the district court had power to
resentence Harrison on his drug conviction.           See United States v.
Binford, No. 96-2419, 1997 WL 91851, at *6-7 (7th Cir. Mar. 4,
1997)(28 U.S.C. § 2255 confers jurisdiction); United States v.
Hillary, 106 F.3d 1170, 1171-73 (4th Cir. 1997) (same); see also
United States v. Handa, No. 96-16468, 1997 WL 134095, at *1-2 (9th
Cir. Mar. 26, 1997) (holding circuit precedent and government
concession     prevented   adoption     of   view   that   §   2255   permits
resentencing after reversal of § 924(c) conviction, but court of
appeals had authority under 28 U.S.C. § 2106 to vacate defendant’s
entire sentence and remand for resentencing on drug conviction).


     The district court can modify a previously imposed term of
imprisonment if expressly permitted by statute.            See 18 U.S.C. §
3582(c)(1)(B) (1994).      Harrison contends § 2255 does not permit
modification of his drug sentence.           We disagree.      Section 2255
provides:
     A prisoner in custody under sentence . . . claiming the
     right to be released upon the ground that the sentence
     was imposed in violation of the Constitution or laws of
     the United States . . . may move the court which imposed
     the sentence to vacate, set aside or correct the
     sentence. . . . If the court finds that . . . the
     sentence imposed was not authorized by law . . . the
     court shall vacate and set the judgment aside and shall
     discharge the prisoner or resentence [the prisoner] or
     grant a new trial or correct the sentence as may appear
     appropriate.

The statute gives district courts broad and flexible remedial
authority to resentence a defendant and to correct the sentence as
appropriate.    See Hillary, 106 F.3d at 1171.         A remedy that seems
appropriate is to put § 2255 defendants in the same position as
defendants on direct appeal by permitting resentencing, see id. at


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1172, and to impose a sentence that would have been rendered but
for the challenged error.        Whether the district court has power to
do so depends on the breadth of the term “sentence” in § 2255.                   See
Binford, 1997 WL 91851, at *6.                 Reading the statute narrowly,
Harrison contends § 2255 only authorizes modification of the
specific term of imprisonment associated with the single count of
conviction attacked, here, the gun sentence.                     On the other side,
the Government contends that when Harrison filed his § 2255 motion
challenging the legality of his gun conviction, he put in issue all
interdependent components of his total sentence.


        Because the mandatory sixty month term for the gun conviction
and     the   firearm     enhancement         on   the     drug    conviction    are
interdependent, the terms of imprisonment imposed on the gun and
drug convictions constitute a “sentence” within the meaning of §
2255.     See Binford, 1997 WL 91851, at *6; Hillary, 106 F.3d at
1172.    The district court originally took Harrison's gun possession
into account by sentencing him for using a gun during the drug
crime, which directly prevented the court from enhancing Harrison's
drug sentence for firearm possession.                    Once the district court
vacated the term imposed on the erroneous gun conviction, the
district      court      could     appropriately            correct      Harrison's
interdependent drug term by applying the firearm enhancement.                    See
Binford, 1997 WL 91851, at *7; Hillary, 106 F.3d at 1172-73.


        Harrison   asserts       application        of     the     enhancement   on
resentencing violates double jeopardy because he has already served
part of the drug term.           The Double Jeopardy Clause prevents a
sentencing court from increasing a defendant’s sentence after the
defendant has developed a legitimate “expectation of finality in
the original sentence.”          United States v. DiFrancesco, 449 U.S.
117, 139 (1980).        When a defendant challenges one of at least two


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interdependent sentences, however, the defendant has effectively
challenged the interwoven sentencing plan.         See Binford, 1997 WL
91851, at *7-8; United States v. Shue, 825 F.2d 1111, 1115 (7th
Cir. 1987).   Because the defendant has no legitimate expectation of
finality in any discrete part of an interdependent sentence after
a partially successful appeal or collateral attack, there is no
double jeopardy   bar   to   enhancing    an   unchallenged   part   of   an
interdependent sentence to fulfill the court's original intent.
See Binford, 1997 WL 91851, at *7-8; Handa, 1997 WL 134095, at *2;
Shue, 825 F.2d at 1115.      Since Harrison has served less than 121
months of his original drug term, we need not decide whether double
jeopardy bars resentencing of a § 2255 petitioner on fully served
parts of an interdependent sentence.        Compare Woodhouse v. United
States, No. 96-3112, 1997 WL 125930, at *1-2 (7th Cir. Mar. 20,
1997) (no expectation of finality in fully served drug term) with
Warner v. United States, 926 F. Supp. 1387, 1393-94 (E.D. Ark.
1996) (expectation of finality in fully served drug term).


     Last, Harrison contends the Government is seeking the gun
possession enhancement to penalize him for filing a § 2255 motion,
and thus, his resentencing violates his right to due process.             We
find no evidence of vindictiveness in Harrison’s resentencing.
Harrison’s total sentence has been reduced by almost three years
and the district court resentenced Harrison according to the
court’s original sentencing plan.        See Shue, 825 F.2d at 1115-16.
In these circumstances, we conclude Harrison’s resentencing does
not violate due process.


     Imposing a sentence that the Guidelines make appropriate for
Harrison’s conduct is not fundamentally unfair.       Harrison possessed
a gun during the drug conspiracy, and the enhancement for its
possession was blocked at his original sentencing only by his


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separate § 924(c) gun conviction, which was later deemed legally
unsound.    If we did not permit resentencing of defendants who
successfully challenge § 924(c) convictions in § 2255 proceedings,
they    would    receive   lighter     sentences     than   defendants   who
successfully attack their § 924(c) convictions on direct appeal and
can be resentenced.    Permitting resentencing on the drug conviction
simply puts Harrison back in the situation he would have faced
under the law at the time of his arrest had the erroneous gun
charge not been brought.       See Handa, 1997 WL 134095, at *2.


       We affirm the district court.


HEANEY, Circuit Judge, dissenting.


       I dissent because, in my view, the district court lacks
jurisdiction to enhance Harrison’s sentence for the drug conviction
that he did not challenge in this collateral appeal.          Regardless of
whether it “seems appropriate to put § 2255 defendants in the same
position    as    defendants     on     direct     appeal   by   permitting
resentencing,” Majority Op., supra,          at 3, there is simply no legal
basis on which to do so at this stage of the proceedings.


       Section 2255 permits a prisoner to move the district court for
relief if he believes his sentence is unconstitutional and the
statute expressly provides the court with authority to vacate, set
aside, or correct “the sentence.”           Thus, I agree with the majority
insofar as it asserts that the district court’s power to resentence
Harrison on the unchallenged conviction depends on the breadth of
the term “the sentence” in section 2255.          I am convinced, however,
that in the context of the entire provision, the term’s meaning is
clearly limited to only the sentence specifically challenged by the
defendant on collateral appeal.         “The sentence” is used in the


                                      -6-
statute to define the scope of a challenge under section 2255
(i.e., a    prisoner’s    claim     “that     the   sentence   was   imposed   in
violation of the Constitution or laws of the United States”) and
again, to establish the relief that the district court can afford
if the claim has merit (i.e., if “the sentence imposed was not
authorized by law . . . the court shall vacate and set the judgment
aside and shall discharge the prisoner . . . or correct the
sentence as may appear appropriate.”).               For the statute to make
sense, “the sentence” must have a constant meaning and, reading the
provision      as a whole,      that meaning is logically limited to the
sentence collaterally challenged by the prisoner.              Because Harrison
does not challenge either his conviction or sentence on the drug
count, that sentence simply is not before the district court in
this section 2255 proceeding.


     Moreover, the language of section 2255 expressly provides that
relief under the statute is available only to a prisoner in the
custody of the United States.        The only party seeking “relief” with
respect to the drug conviction (assuming for the sake of argument
that an increased drug sentence can be called “relief” for these
purposes) is the government.        I agree with the observation made by
Judge Eisele that, “no matter how hard one tries, one simply cannot
shoehorn the United States into the class of persons who are
entitled to seek relief under [section 2255].”                 Warner v. United
States, 926 F. Supp. 1387, 1398 (E.D. Ark. 1996).                In fact, given
that only a prisoner is entitled to relief under section 2255, I am
hard-pressed to envision a circumstance in which a district court
would   ever    use   section    2255   to    enhance   a   previously-imposed
sentence.      I firmly believe that if a section 2255 movant elects
not to challenge any part of the total sentence imposed at trial,
even if he loses on the section 2255 motion, he should be in no




                                        -7-
                                         7
worse position than when he started, vis-a-vis the unchallenged
sentence.


     Therefore, I would reverse the district court and vacate the
enhanced sentence on the count of conviction that Harrison never
challenged in this section 2255 proceeding.


     A true copy.


            Attest.


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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