United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH JOHNSON,
No. 96-4273
Defendant-Appellant.
THE OFFICE OF THE FEDERAL PUBLIC
DEFENDER, for the District of
Maryland,
Amicus Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-93-19)
Submitted: March 31, 1997
Decided: May 27, 1997
Before WILKINS and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Helen F. Fahey, United States Attor-
ney, Stephen W. Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Joseph Johnson was convicted of several firearms and
drug offenses, including using a firearm during and in relation to a
drug trafficking offense in violation of 18 U.S.C.§ 924(c) (1994), and
this court affirmed his convictions and sentence. United States v.
Johnson, No. 94-5225 (4th Cir. Mar. 6, 1995) (unpublished). Johnson
subsequently filed a motion for relief pursuant to 28 U.S.C.A. § 2255(West 1994 & Supp. 1997) and Bailey v. United States, ___ U.S. ___,
64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448, 94-7492). The
district court granted Johnson's motion as to his Bailey claim and
vacated only the § 924(c) conviction. During the rehearing on sen-
tencing, however, the district court enhanced Johnson's sentence for
the remaining drug convictions pursuant to USSG§ 2D1.1* for pos-
session of a firearm. On appeal, Johnson challenges whether the dis-
trict court can resentence a defendant to an enhanced prison term
pursuant to USSG § 2D1.1 after he has successfully challenged his
sentence in a § 2255 motion in which he raised a Bailey claim. Find-
ing no error, we affirm.
This issue was recently decided against Johnson in United States
v. Hillary, ___ F.3d ___, 1997 WL 61398 (4th Cir. Feb. 14, 1997)
(No. 96-7463), in which this court held that the district court had
jurisdiction to resentence a defendant on a surviving drug conviction
after the defendant was granted relief from his§ 924(c) conviction in
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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light of Bailey. We had previously ruled that resentencing was appro-
priate in cases where the successful Bailey claim was raised on direct
appeal. See United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir.
1996). The decision in Hillary applied this same rule to cases where
the successful Bailey claim was raised in a collateral attack.
We therefore affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.
AFFIRMED
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