United States v. Oliver , 148 F.3d 1274 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 96-7105 2/18/03
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. CR-91-73-N(01)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNIE D. OLIVER,
EDNA PALMER OLIVER,
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Middle District of Alabama
_________________________
(August 5, 1998)
Before GODBOLD, HILL and FAY, Senior Circuit Judges
PER CURIAM:
Edna Oliver appeals her 164-month sentence for conspiracy to possess with intent to
distribute cocaine base, 21 U.S.C. §§ 841 and 846, possession of cocaine base with intent to
distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1). Johnnie Oliver appeals his 121-month sentence for conspiracy to possess with
intent to distribute cocaine base, 21 U.S.C. §§ 841 and 846, possession of cocaine base with
intent to distribute, 21 U.S.C. § 841(a)(1), and distribution of cocaine base, 21 U.S.C.
§ 841(a)(1).
The Olivers had successfully argued in their motions to vacate, 28 U.S.C. § 2255, that
their convictions under 18 U.S.C. § 924(c) were invalid in light of the Supreme Court’s
decision in Bailey v. United States, 516 U.S. 137, 142-43, 116 S. Ct. 501, 505, 133 L. Ed. 2d
472 (1995). The district court ordered that the Olivers be resentenced in order to determine
whether their sentences should be enhanced under U.S.S.G. § 2D1.1(b)(1), which provides
a two-level enhancement for possession of a firearm during the commission of a drug
offense. At sentencing, the district court applied the § 2D1.1(b)(1) enhancements to the
Olivers’ offense levels. On appeal, the Olivers argue that the district court lacked jurisdiction
to resentence them.
We review de novo questions concerning the jurisdiction of the district court. See
e.g., United States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992).
Upon review of the relevant caselaw, and consideration of the parties’ briefs, we find
no reversible error.
2
Appellants’ arguments are foreclosed by this Court’s holding in United States v.
Mixon, 115 F.3d 900 (11th Cir. 1997). In Mixon, 115 F.3d at 901-02, as here, the defendant
received a longer guideline sentence at resentencing, after his firearm conviction was vacated
pursuant to Bailey. This Court held that, “based on the broad language of § 2255 and the
interdependence of the multiple counts for sentencing purposes,“ a district court had
jurisdiction to recalculate a defendant’s entire sentence and that such resentencing did not
defeat the defendant’s double jeopardy rights nor expectations of finality. Mixon, 115 F.3d
at 903.
This Court’s decision in United States v. Rosen, 764 F.2d 763 (11th Cir. 1985), cert.
denied, 474 U.S. 1061 (1986), is not in opposition to its decision in Mixon. Rosen was a pre-
guidelines case and the language cited by the Olivers was dicta. See United States v. White,
980 F.2d 1400, 1401 n.2 (11th Cir. 1993)(rejecting otherwise precedential authority because
the issue was considered in dicta in a pre-guidelines case); see also Rosen, 764 F.2d at 763-
66. Because it was a pre-guidelines case, the Rosen Court could not have considered the
unique relationship between 18 U.S.C. § 924(c) and U.S.S.G. § 2D1.1(b)(1). Because the
district court had jurisdiction to resentence the Olivers on their unchallenged counts
following their successful collateral attacks on their convictions under 18 U.S.C. § 924(c),
we affirm.
AFFIRMED.
3