United States v. John Martin. John W. Martin, Jr.

116 F.3d 702

• Court: Court of Appeals for the Third Circuit
• Decided: July 28, 1997
• Docket: 96-7373
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

This appeal arises in the wake of the Supreme Court’s interpretation of 18 U.S.C. § 924(e)(1) in Bailey v. United States, - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).

John Martin (“Appellant”) was convicted on December 2, 1993 of violating 18 U.S.C. §§ 922(g) and 924(a)(2) (possession of a firearm by a convicted felon) (“Count I”) and 18 U.S.C. § 924(e)(1) (“Count II”) (use of a firearm during or in relation to a drug trafficking crime). He was sentenced by the district court to a term of imprisonment of thirty-seven months on Count I and a consecutive term of sixty months on Count II. This court affirmed both convictions on February 24, 1995.

On December 6, 1995, the Supreme Court filed its opinion in Bailey, in which it held that a conviction under 18 U.S.C. § 924(c)(1) for using a firearm during and in relation to a drug trafficking crime requires the “active employment” of the weapon by the defendant. Bailey, - U.S. at -, -, 116 S.Ct. at 506, 509. The Court’s decision has generated numerous appeals, both direct and collateral, from convictions under section 924(c)(1) that predated the ruling in Bailey.

Having lost his direct appeal to this court only ten months before the Court decided Bailey, Appellant filed a motion in the district court under 28 U.S.C. § 2255 on February 23, 1996 to vacate, set aside, or correct his sentence for violating section 924(c)(1). The government concurred in the vacatur of the Count II conviction and sentence, but requested that Appellant be resenteneed on his Count I conviction. The district court vacated the Count II conviction, but rejected Appellant’s jurisdictional and constitutional arguments as to the Count I conviction and resentenced him to a term of imprisonment of fifty-seven months on that count.¹ This timely appeal followed.

Appellant argues here that the district court lacked jurisdiction to resentence him on his Count I conviction, which he did not challenge in the section 2255 proceeding. He claims that the district court’s jurisdiction was limited to a review of Count II and the concomitant “sentence” that he attacked. Appellant further asserts that his resentenc-ing by the district court on Count I violated his due process rights and the prohibition against double jeopardy because he possessed a legitimate expectation of finality as to the portion of his original sentence imposed under Count I.

Our jurisdiction arises under 28 U.S.C. § 1291, and our review is plenary as to both issues. United States v. Barnhart, 980 F.2d 219, 222 (3d Cir.1992); Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir.1991).

Since the date of oral argument before us in this case, another panel of this court has filed a reported opinion holding that a district court has jurisdiction to resentence a section 2255 petitioner on unchallenged counts where the petitioner successfully attacks a section 924(c)(1) conviction on the basis of the Supreme Court’s decision in Bailey. See United States v. Davis, 112 F.3d 118 (3d Cir.1997).

Third Circuit Internal Operating Procedure 9.1 reads:

It is the tradition of this court that the holding of a panel in a reported opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a published opinion of a previous panel. Court in banc consideration is required to do so.

3d Cir. R., App. I, I.O.P. 9.1 (West Supp. 1997). Given the circumstances here, we conclude that this court’s holding in Davis dictates our disposition here. See United States v. Audinot, 901 F.2d 1201, 1204 (3d Cir.1990).

The order of the district court resentenc-ing Appellant to a term of imprisonment of fifty-seven months on his Count I convictions will be affirmed.

1 . At the time of the resentencing hearing. Appellant had completed 23 months of his original, 37-month term of imprisonment on Count I.