United States v. Smith

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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