United States v. Patterson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4712
PATRICK PATTERSON, a/k/a Bubba,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
W. Earl Britt, District Judge.
(CR-92-72, CA-96-315-1-5)
Submitted: March 31, 1997
Decided: August 25, 1997
Before NIEMEYER and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Barbara D. Kocher, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Patrick Patterson was initially convicted pursuant to his
guilty pleas of one count each of possession of crack cocaine with
intent to distribute and using or carrying a firearm during and in rela-
tion to a drug trafficking offense. After the Supreme Court's decision
in Bailey,1 Patterson filed a § 22552 motion attacking his § 924(c)3
conviction. The district court granted the motion, and, over Patter-
son's objection, ordered a resentencing hearing. On resentencing, the
district court enhanced Patterson's sentence for the drug conviction
pursuant to USSG § 2D1.1(b)(1).4 On appeal, Patterson challenges the
district court's jurisdiction to order a hearing on resentencing. Patter-
son also challenges the application of the enhancement on evidentiary
and constitutional grounds. Finding no reversible error, we affirm.
Patterson asserts that he cannot be resentenced on his underlying
drug conviction following his successful Bailey claim. We previously
addressed this issue and decided to the contrary in United States v.
Hillary, ___ F.3d ___, 1997 WL 61398 (4th Cir. Feb. 14, 1997) (No.
96-7463) (holding that the district court had jurisdiction to resentence
a defendant on a surviving drug conviction after the defendant was
granted collateral relief from his § 924(c) conviction based on Bailey).5
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1 Bailey v. United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec.
6, 1995) (Nos. 94-7448, 94-7492).
2 28 U.S.C. § 2255 (1994), amended by Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.
3 18 U.S.C. § 924(c) (1994).
4 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
5 Hillary simply applied this court's decision in United States v.
Hawthorne, 94 F.3d 118, 122 (4th Cir. 1996) (holding that resentencing
was appropriate in cases where the successful Bailey claim was raised on
direct appeal), to cases on collateral review.
2
Patterson also raises claims concerning the constitutionality of USSG
§ 2D1.1, which we have found constitutional. See United States v.
Apple, 962 F.2d 335, 338 (4th Cir. 1992) (applying the "clearly
improbable" test); United States v. Bowman , 926 F.2d 380, 381-82
(4th Cir. 1991) (holding that § 2D1.1 does not violate the Due Process
Clause). Finally, we find that the evidence was sufficient to establish
a connection between the weapons found in Patterson's residence and
his drug activities.
We therefore affirm the findings and sentence of the district court
on resentencing. We dispense with oral argument because the facts
and legal contentions are adequately presented in the material before
the court and argument would not aid the decisional process.
AFFIRMED
3