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USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-2150
UNITED STATES OF AMERICA,
Appellee,
v.
ISIDRO RODRIGUEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Bjorn Lange, Federal Defender Office, for appellant. ___________
Jean B. Weld, Assistant United States Attorney, with whom ____________
Paul M. Gagnon, United States Attorney, and Peter E. Papps, ______________ ______________
Assistant United States Attorney, were on brief, for appellee.
____________________
April 30, 1997
____________________
LYNCH, Circuit Judge. This case raises an issue of LYNCH, Circuit Judge. _____________
significance in the administration of criminal justice, one
of first impression for this court. It concerns the power of
a district court to resentence on the counts of conviction
remaining after the sentence on another count has been
vacated on a petition under 28 U.S.C. 2255.
Isidro Rodriguez was originally convicted in 1993
on four cocaine trafficking counts, see 21 U.S.C. 841(a), ___
for which he received a sentence of sixty-three months, and
on one count of using or carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. 924(c), for which he received a mandatory,
consecutive sentence of sixty months. Those convictions were
affirmed on appeal. See United States v. Rodriguez, 29 F.3d ___ _____________ _________
619 (1st Cir. 1994) (per curiam).
On December 6, 1995, the Supreme Court decided
Bailey v. United States, 116 S. Ct. 501 (1995). Bailey ______ _____________ ______
clarified the definition of the term "use" in 18 U.S.C.
924(c), changing the law in this and many other circuits.
Id. Relying on Bailey, Rodriguez filed a pro se motion under ___ ______ ___ __
28 U.S.C. 2255, seeking to vacate his conviction on the
924(c) firearms count. The government conceded that
Rodriguez's conviction on that count could not stand after
Bailey. ______
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On March 1, 1996, the district court ordered that
Rodriguez's conviction and sentence on the 924(c) count be
vacated, thereby eliminating the mandatory, consecutive
five-year sentence. Rodriguez remains in the custody of the
Bureau of Prisons as he has not finished serving his sentence
for the drug trafficking counts.
The district court appointed counsel to represent
Rodriguez and directed the parties to address the issue of
whether Rodriguez could be resentenced on the drug counts.
The court also ordered a revised presentence report ("PSR").
After briefing and argument, the district court ruled that
Rodriguez's sentence on the firearms count was part of a
sentencing calculus based on the relationship between the
various counts. The court concluded that it had
jurisdiction, under 2255 and First Circuit precedent, to
resentence Rodriguez on the drug trafficking counts. The
district court accepted the factual conclusions and
Guidelines application of the revised PSR, including the
PSR's recommendation of a two-level increase for possession
of a dangerous weapon during a drug offense. This yielded a
total offense level of 28, and a corresponding sentencing
range of seventy-eight to ninety-seven months. The district
court resentenced Rodriguez to seventy-eight months on the
drug trafficking counts. That is less than his original
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total sentence on all counts of 123 months, but more than his
original sentence of sixty-three months for the drug counts.
Rodriguez argues that the district court simply
lacked jurisdiction to resentence him and, further, that
doing so violated his right not to be placed twice in
jeopardy for the same offense and his right to due process of
law.
Rodriguez's argument is complicated for him by the
fact that, under the Sentencing Guidelines, there was an
explicit interaction between the sentence he was originally
given on the drug trafficking counts and the sentence he
received on the firearms count. The Guidelines direct a
sentencing judge to increase the sentence for a drug
trafficking offense by two levels where the offense involves
the possession of a dangerous weapon, including a firearm.
See U.S.S.G. 2D1.1(b)(1). However, to avoid double ___
counting, the Guidelines do not permit such an enhancement of
the drug sentence if the defendant has also been convicted
under certain statutes, including 18 U.S.C. 924(c), which
provide a mandatory minimum penalty for weapons-related
conduct. U.S.S.G. 2K2.4 (comment. n. 2 & backg'd). For
example, if the jury had acquitted Rodriguez of the firearms
offense under 18 U.S.C. 924(c), but the judge had
nonetheless found, by a preponderance of the evidence, that
Rodriguez possessed a firearm during the drug crimes, the
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judge should have, under the Guidelines, increased the
sentence for the drug offenses.
The district court judge apparently thought that
this resentencing was similar to that hypothetical case and
so enhanced the sentence for the drug offenses. This is, of
course, an approach abundant with common sense. It also fits
with the notion that, where there are multiple convictions,
the various sentences form a package meant to work together
and if part of the package of convictions is undone, the
trial judge ought to be free to reconsider how all the pieces
should fit together, in order to do justice and to meet the
requirements of the Guidelines.
But such a common sense approach to the problem
must fairly meet Rodriguez's objections that Congress did not
grant jurisdiction to resentence and that such an approach,
writ broadly, poses far from hypothetical dangers to the
constitutional rights of a criminal defendant. Rodriguez's
assertion is that to increase a sentence as a consequence of
a defendant's successful challenge to one count of conviction
penalizes the exercise of the right to collaterally attack a
conviction. Such a sentencing enhancement deprives the
prisoner of his settled expectations about the length of his
sentence, and violates the rule, embedded in our
jurisprudence, that a defendant only be sentenced for the
crimes of which he is convicted.
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Rodriguez starts with an argument that federal
trial courts have only such jurisdiction as Congress has
granted and that there is no grant of jurisdiction to revise,
on collateral attack, a sentence that has already become
final. Rodriguez argues that Congress has expressly limited
a court's ability to modify an already imposed sentence to
the three situations outlined in 18 U.S.C. 3582(c). Two of
the circumstances described in that section are inapplicable
here, and so, he contends, the district court may only
resentence him to the extent "expressly permitted by statute
or by Rule 35 of the Federal Rules of Criminal Procedure."
18 U.S.C. 3582(c)(1)(B).
On direct appeal (in contrast to the 2255 review
here), this court has permitted resentencing for a drug
trafficking conviction where defendant's 924(c) conviction
was set aside, post-Bailey: ______
Since it is conceivable that our
disposition of the [firearms] count might
affect the sentencing calculus in regard
to the [drug trafficking] count, we honor
counsels' joint request and remand to the
district court for possible
reconsideration of the sentence
originally imposed on the drug
trafficking count.
United States v. Valle, 72 F.3d 210, 218 (1st Cir. 1995). At _____________ _____
least seven other circuits have similarly determined that,
when a conviction under 924(c) is reversed on appeal in __ ______
light of Bailey, it is appropriate to remand to the district ______
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court for resentencing on the remaining convictions. See ___
United States v. Jackson, 103 F.3d 561, 569 (7th Cir. _____________ _______
1996)(citing cases).
Rodriguez concedes that such resentencing on remand
after direct appeal may be appropriate because 28 U.S.C.
2106 permits the appellate court to "affirm, modify, vacate,
set aside or reverse any judgment . . . brought before it for
review" and to "remand the cause and . . . require such
further proceedings to be had as may be just under the
circumstances." 28 U.S.C. 2106. But that statutory
language is inapplicable here, Rodriguez argues, because the
drug trafficking convictions in this case have already become
final after appeal; thus, 2106's broad grant of remedial
power to the appellate court cannot be read to empower the _________
district court on a 2255 motion. Rodriguez further argues
that his 2255 motion only sought review of his 924(c)
sentence and convictions, and that his drug trafficking
sentence is therefore not properly "before" any court.
We agree with the basic tenet of Rodriguez's
argument: courts are not free to resentence at will; a
statute or Rule 35 must authorize such an exercise of
jurisdiction. See United States v. Fahm, 13 F.3d 447, 453 ___ _____________ ____
(1st Cir. 1994) (district court lacked inherent power to
"correct" a sentence other than as expressly permitted by
Rule 35).
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However, Rodriguez's argument fails because the
language of 28 U.S.C. 2255 expressly vests some power in
the district court:
If the court finds that the judgment was
rendered without jurisdiction, or that
the sentence imposed was not authorized
by law or otherwise open to collateral
attack, or that there has been such a
denial or infringement of the
constitutional rights of the prisoner as
to render the judgment vulnerable to
collateral attack, 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 (emphasis added).
This grant of power to "correct the sentence as may
appear appropriate" resolves the jurisdictional issue against
Rodriguez. In this, we agree with the Fourth Circuit's
decision in United States v. Hillary, 106 F.3d 1170, 1172 _____________ _______
(4th Cir. 1997) and the Seventh Circuit's decision in United ______
States v. Binford, 108 F.3d 723, 728-29 (7th Cir. 1997). ______ _______
This still leaves the question of when it is
"appropriate" to "correct the sentence." In United States v. _____________
Smith, 103 F.3d 531 (7th Cir. 1996), the Seventh Circuit _____
ruled in favor of the exercise of jurisdiction to correct the
remaining drug trafficking sentence where a prisoner, on a
motion under 2255, succeeded in vacating his mandatory
consecutive five-year 924(c) sentence. The Seventh Circuit
found it "appropriate" to correct the sentence, because "[i]f
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a multicount sentence is a package . . . then severing part
of the total sentence usually will unbundle it." Id. at 534. ___
The Seventh Circuit further noted, and we agree,
that the question of the "appropriate" exercise of that
jurisdiction cannot turn entirely on older conceptions of
"sentencing packages" but must consider the effect of the
Sentencing Guidelines. See id. at 534-35. "The Sentencing ___ ___
Reform Act of 1984 revolutionized the manner in which
district courts sentence persons convicted of federal
crimes." Burns v. United States, 501 U.S. 129, 132 (1991). _____ _____________
We also agree with the Seventh Circuit's conclusion that,
while the Guidelines have altered the idea of the sentencing
package, they have not eliminated the concept. Smith, 103 _____
F.3d. at 534.
In a pre-Guidelines case, this court both adopted
the concept of the sentencing package and suggested some
limits to its applicability. In United States v. Pimienta- _____________ _________
Redondo, 874 F.2d 9 (1st Cir. 1989) (en banc), the defendants _______
received consecutive sentences for convictions on two counts
of drug trafficking. On appeal, this court ruled that the
two counts of conviction actually constituted a single
offense, reversed the defendants' convictions on one of the
counts, and remanded for resentencing on the second. Id. at ___
11-12. The district court then resentenced the defendants on
the remaining count to a term as long as the combined total
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of the prior, consecutive sentences on both counts. Id. at ___
12. Defendants again appealed. The en banc court rejected
defendants' double jeopardy and due process challenges to
the resentencing, holding that:
[a]fter an appellate court unwraps the
[sentencing] package and removes one or
more charges from its confines, the
sentencing judge, herself, is in the best
position to assess the effect of the
withdrawal and to redefine the package's
size and shape . . . .
Id. at 14. In light of the concurring opinion of then-Judge ___
Breyer and Judge Campbell, Pimienta-Redondo's "sentencing ________________
package" holding should be confined to situations where the
same basic course of conduct underlies both the vacated count
and the count on which the conviction is affirmed, and that
basic conduct determines the sentence. Id. at 17 (Breyer, ___
J., concurring).
In this case, the Guidelines establish a similar
relationship of interdependence between the vacated count of
conviction, the affirmed count of conviction, and the new
sentence: Both Rodriguez's conviction under 924(c) and the
enhancement imposed in resentencing him turn on the presence
of a weapon during a drug trafficking offense. Rodriguez's _________________________
conviction for that basic course of conduct was affirmed.
The Guidelines require sentencing judges to consider "all
acts and omissions . . . that occurred during the commission
of the offense of conviction . . . ." U.S.S.G.
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1B1.3(a)(1). Thus, under both the Guidelines and our pre-
Guidelines precedent, Rodriguez's sentence may be considered
as a "sentencing package."
Rodriguez argues that, because the 924(c)
firearms sentence was consecutive, it is not part of the same
"sentencing package" as his drug trafficking sentence. He
relies on U.S.S.G. 5G1.2, which governs sentencing on
multiple counts of conviction, and provides:
(a) The sentence to be imposed on a count
for which the statute mandates a
consecutive sentence shall be determined
and imposed independently.
U.S.S.G. 5G1.2. That the firearms sentence had to be
calculated independently does not mean that the sentence on
the drug counts did not depend on the existence of that
sentence; to the contrary, the Guidelines specify such a
relationship. See U.S.S.G. 2K2.4, comment. (n.2 & backg'd). ___
Thus, we hold that, where the Guidelines contemplate an
interdependent relationship between the sentence for the
vacated conviction and the sentence for the remaining
convictions -- a sentencing package1 -- a district court may,
on a petition under 28 U.S.C. 2255, resentence on the
____________________
1. To the extent that the Seventh Circuit's opinions in
Smith and Binford can be read to permit resentencing whenever _____ _______
there is a sentencing package, and to define a "sentencing
package" as "the bottom line, the total number of years (or
under the guidelines, months) which effectuates a sentencing
plan," Smith, 103 F.3d at 533, we part company and find it _____
unnecessary to state so broad a rule.
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remaining convictions.2 We leave to another day the question
of whether there is such authority when the Guidelines do not
contemplate such an interdependent sentencing package.3
Rodriguez's two constitutional claims fare no
better than does his jurisdictional claim. Because the
consideration of acquitted conduct in fashioning a sentence
does not, absent special circumstances, violate either the
Due Process or the Double Jeopardy Clause, see United States ___ _____________
v. Watts, 117 S. Ct. 633, 636-37 (1997), the fact that the _____
district court considered the conduct underlying the vacated
conviction in enhancing the sentence for the drug offense
does not in itself violate the Constitution. To the extent
that there are valid due process concerns about possible
vindictiveness on resentencing, the safeguards announced by
the Supreme Court in North Carolina v. Pearce, 395 U.S. 711 ______________ ______
(1969), and applied by this court in Pimienta-Redondo, 874 ________________
F.2d at 12-14, adequately address this problem. See also ___ ____
United States v. Twitty, 104 F.3d 1, 2 (1st Cir. 1997); ______________ ______
United States v. Clark, 84 F.3d 506 (1st Cir.) (outlining _____________ _____
contours of Pearce presumption of vindictiveness), ______
cert. denied, 117 S. Ct. 272 (1996). On the facts of this _____ ______
____________________
2. There may be occasions where the authority to resentence
works in a defendant's favor. There may be occasions where
the trial judge believes the interrelationship requires a
reduction in the remaining sentence.
3. The Sentencing Commission may wish to address this topic.
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case, no claim of vindictiveness has been, or could be, made.
There is another theory that Rodriguez advances
under the Due Process Clause. Relying on Breest v. Helgemoe, ______ ________
579 F.2d 95 (1st Cir. 1978), he argues that he was "a
substantial period of time" -- more than three years -- into
his sentence when he was resentenced, and that it is
"fundamentally unfair, and thus violative of due process for
a court to alter even an illegal sentence in a way which
frustrates a prisoner's expectations by postponing his . . .
release date far beyond that originally set." Id. at 101. ___
Here, Rodriguez's new release date is still more than four
years earlier than his original release date; the
psychological unfairness described in Breest is thus not an ______
issue here. We acknowledge that, on other facts, due process
concerns could be raised.4
____________________
4. We have said that there may be limits on the right to
correct an erroneous sentence in cases "with extreme facts:
a long delay, actual release of the defendant from custody
based on the shorter sentence, singling out of the defendant
for a belated increase apparently because of his commission
of another offense for which parole revocation would have
been available, and other troubling characteristics." United ______
States v. Goldman, 41 F.3d 785, 789 (1st Cir. 1994); see also ______ _______ ___ ____
DeWitt v. Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993)(noting ______ __________
that there is "no single touchstone" for determining if delay
in resentencing is inconsistent with the Due Process Clause
and listing considerations including the lapse of time, the
reasonableness of defendant's expectations, prejudice, and
diligence exercised by the state). Delay may, in future
cases, be less of an issue because of the strict time limits
that 28 U.S.C. 2255 now imposes on the filing of petitions.
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We think that, given the language of 2255
discussed earlier and the fact that Rodriguez is still in
custody, he could have no settled expectation of finality
with respect to a portion of his total sentence which, under
the Guidelines, is part of a sentencing package.
Accordingly, there is no violation of the Double Jeopardy
Clause here. This case does not involve a petitioner who had
already fully discharged his sentence and then was
resentenced, see United States v. Silvers, 90 F.3d 95, 101 ___ _____________ _______
(4th Cir. 1996), and we intimate nothing about the double
jeopardy consequences of such a situation.5 Cf. Hillary, 106 ___ _______
F.3d at 1173.
Affirmed. _________
____________________
5. This scenario is not farfetched. Sometimes a case takes
such time to wend its way through the court system that the
prisoner is released by the time it is resolved. And,
because convictions carry collateral consequences even after
incarceration has ended, appeals may be brought after release
in an effort to avoid those consequences. See Ball v. United ___ ____ ______
States, 470 U.S. 856, 864-65 (1985). ______
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Document Info
Docket Number： 96-2150
Filed Date： 5/1/1997
Precedential Status： Precedential
Modified Date： 9/21/2015