United States v. Behrens

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUN 24 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-7095
v.
(D.C. No. 96-CV-563-S)
(EOK)
HAROLD ONEE BEHRENS, also
known as Buddy Behrens,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
In this 28 U.S.C. § 2255 proceeding, Harold Onee Behrens challenges the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
district court’s jurisdiction to resentence him on his remaining related drug
trafficking convictions after vacating his conviction for using a firearm during the
course of a drug offense. We hold the district court has jurisdiction, and affirm
the district court’s resentencing.
Mr. Behrens, along with several other co-defendants, was convicted of
multiple drug offenses and two counts of using and carrying a firearm in relation
to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On direct appeal,
we vacated Mr. Behrens’ convictions on three counts, including one of the section
924(c) firearm counts. United States v. Johnson, 977 F.2d 1360 (10th Cir. 1992).
The district court subsequently entered an order correcting Mr. Behrens’ judgment
and sentence in accordance with our decision in Johnson.
Following the disposition of Mr. Behrens’ direct appeal, the United States
Supreme Court decided Bailey v. United States, 116 S. Ct. 501 (1995). In light of
Bailey, Mr. Behrens filed a petition under 28 U.S.C. § 2255 seeking to vacate his
remaining section 924(c) firearm conviction. The district court granted Mr.
Behrens’ petition and ordered that his sentence be recalculated for the purpose of
resentencing him on his remaining related drug convictions. The amended
presentence report recommended a two-level enhancement under U.S.S.G. §
2D1.1(b)(1) for possession of a firearm during the drug offenses. This
enhancement was not available to the district court in Mr. Behrens’ original
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sentencing because of his section 924(c) convictions. See U.S.S.G. § 2K2.4,
comment. (backg’d) (enhancement under § 2D1.1(b)(1) precluded where
defendant also convicted under 18 U.S.C. § 924(c)). Mr. Behrens unsuccessfully
objected to this two-level enhancement. The district court concluded that Mr.
Behrens was subject to the section 2D1.1(b)(1) enhancement and resentenced him
to concurrent terms of 240 months for the three remaining drug counts and a
concurrent term of 60 months for the remaining conspiracy count.
Mr. Behrens’ sole argument on appeal is that the district court lacked
jurisdiction to resentence him on his remaining convictions. We review de novo
the district court’s jurisdiction to resentence a defendant on drug and conspiracy
convictions. United States v. Moore, 83 F.3d 1231, 1233 (10th Cir. 1996). We
recently addressed the precise issue before us in a case involving virtually
identical circumstances. In United States v. Mendoza, 118 F.3d 707, 708 (10th
Cir. 1997), we held that a “district court, following the vacatur of a conviction for
using a firearm during the course of a drug offense, see 18 U.S.C. § 924(c), in a
28 U.S.C. § 2255 proceeding, has jurisdiction to resentence the defendant on
remaining related convictions.” As Mr. Behrens concedes, “[n]o significant
difference has been identified between the facts of this case, and the facts of
Mendoza, which would compel a different result.” Aplt. Br. at 9. The district
court here clearly had jurisdiction to resentence Mr. Behrens on his remaining
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convictions.
We AFFIRM the district court. 1
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
1
After the principal briefs in this appeal were filed, Mr. Craig Bryant, Mr.
Behrens’ original counsel, moved for leave to substitute counsel. We entered an
order substituting Mr. Stephen J. Greubel as counsel for Mr. Behrens. Pending
before us is a motion by Mr. Greubel to withdraw as counsel for the appellant.
We grant Mr. Greubel’s application to withdraw as counsel.
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