United States v. Rodriguez

• Court: Court of Appeals for the First Circuit
• Decided: May 1, 1997
• Docket: 96-2150
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit



                                 ____________________


No. 96-2150



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  ISIDRO RODRIGUEZ,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________

                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Lynch, Circuit Judge.
                                         _____________



                                 ____________________



               Bjorn Lange, Federal Defender Office, for appellant.
               ___________

               Jean B. Weld, Assistant United States Attorney, with whom
               ____________

          Paul M. Gagnon, United States Attorney, and Peter E. Papps,
          ______________                              ______________

          Assistant United States Attorney, were on brief, for appellee.



                                 ____________________



                                    April 30, 1997

                                 ____________________



LYNCH, Circuit Judge.  This case raises an issue of
                      LYNCH, Circuit Judge.
                             _____________



            significance  in the administration  of criminal justice, one



            of first impression for this court.  It concerns the power of



            a district court  to resentence on  the counts of  conviction



            remaining  after  the  sentence  on another  count  has  been



            vacated on a petition under 28 U.S.C.   2255.  



                      Isidro Rodriguez was  originally convicted in  1993



            on four cocaine trafficking counts,  see 21 U.S.C.    841(a),
                                                 ___



            for which he received  a sentence of sixty-three months,  and



            on one  count of using  or carrying a  firearm during and  in



            relation  to a  drug trafficking  crime,  in violation  of 18



            U.S.C.      924(c),  for  which  he   received  a  mandatory,



            consecutive sentence of sixty months.  Those convictions were



            affirmed  on appeal.  See United States v. Rodriguez, 29 F.3d
                                  ___ _____________    _________



            619 (1st Cir. 1994) (per curiam).



                      On December  6,  1995, the  Supreme  Court  decided



            Bailey  v.  United States,  116 S.  Ct.  501 (1995).   Bailey
            ______      _____________                              ______



            clarified the  definition  of the term  "use" in 18 U.S.C.   



            924(c), changing the  law in  this and  many other  circuits.



            Id.  Relying on Bailey, Rodriguez filed a pro se motion under
            ___             ______                    ___ __



            28 U.S.C.   2255,  seeking to vacate his conviction  on the  



            924(c)  firearms  count.     The  government  conceded   that



            Rodriguez's conviction  on that  count could not  stand after



            Bailey. 
            ______


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On March  1, 1996, the district  court ordered that



            Rodriguez's  conviction and sentence on the   924(c) count be



            vacated,    thereby  eliminating the  mandatory,  consecutive



            five-year sentence.  Rodriguez remains in the custody of  the



            Bureau of Prisons as he has not finished serving his sentence



            for the drug trafficking counts.



                       The  district court appointed counsel to represent



            Rodriguez  and directed the  parties to address  the issue of



            whether Rodriguez  could be  resentenced on the  drug counts.



            The court also ordered  a revised presentence report ("PSR").



            After briefing  and argument,  the district court  ruled that



            Rodriguez's  sentence on  the firearms  count was  part of  a



            sentencing  calculus based  on the  relationship between  the



            various   counts.     The   court  concluded   that  it   had



            jurisdiction, under    2255  and First Circuit  precedent, to



            resentence  Rodriguez on  the drug  trafficking counts.   The



            district  court   accepted   the  factual   conclusions   and



            Guidelines  application  of the  revised  PSR, including  the



            PSR's recommendation of a  two-level increase for  possession



            of a dangerous weapon during a drug offense.   This yielded a



            total  offense level  of 28,  and a  corresponding sentencing



            range of seventy-eight to  ninety-seven months.  The district



            court  resentenced Rodriguez to  seventy-eight months  on the



            drug  trafficking counts.    That is  less than  his original


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total sentence on all counts of 123 months, but more than his



            original sentence of sixty-three months for the drug counts.



                      Rodriguez  argues that  the  district court  simply



            lacked  jurisdiction  to resentence  him  and, further,  that



            doing  so  violated  his right  not  to  be  placed twice  in



            jeopardy for the same offense and his right to due process of



            law.



                      Rodriguez's argument is complicated for  him by the



            fact  that, under  the  Sentencing Guidelines,  there was  an



            explicit interaction  between the sentence  he was originally



            given  on the  drug trafficking  counts  and the  sentence he



            received  on the  firearms count.   The  Guidelines direct  a



            sentencing  judge  to  increase   the  sentence  for  a  drug



            trafficking offense by two  levels where the offense involves



            the possession  of a  dangerous weapon, including  a firearm.



            See  U.S.S.G.     2D1.1(b)(1).    However,  to  avoid  double
            ___



            counting, the Guidelines do not permit such an enhancement of



            the drug  sentence if the  defendant has also  been convicted



            under certain  statutes, including 18 U.S.C.    924(c), which



            provide  a  mandatory  minimum  penalty  for  weapons-related



            conduct.   U.S.S.G.   2K2.4  (comment. n. 2  & backg'd).  For



            example, if the jury had acquitted Rodriguez of the  firearms



            offense  under  18  U.S.C.      924(c),  but  the  judge  had



            nonetheless found,  by a preponderance of  the evidence, that



            Rodriguez  possessed a  firearm during  the drug  crimes, the


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judge  should  have,  under  the  Guidelines,  increased  the



            sentence for the drug offenses.



                      The  district court  judge apparently  thought that



            this resentencing  was similar to that  hypothetical case and



            so enhanced the  sentence for the drug offenses.  This is, of



            course, an approach abundant with common sense.  It also fits



            with the  notion that, where there  are multiple convictions,



            the various sentences form a  package meant to work  together



            and  if part  of the  package of  convictions is  undone, the



            trial judge ought to be free to reconsider how all the pieces



            should fit together,  in order to do justice and  to meet the



            requirements of the Guidelines. 



                      But  such a  common sense  approach to  the problem



            must fairly meet Rodriguez's objections that Congress did not



            grant jurisdiction  to resentence and that  such an approach,



            writ  broadly, poses  far  from hypothetical  dangers to  the



            constitutional rights  of a criminal  defendant.  Rodriguez's



            assertion  is that to increase a sentence as a consequence of



            a defendant's successful challenge to one count of conviction



            penalizes  the exercise of the right to collaterally attack a



            conviction.    Such  a sentencing  enhancement  deprives  the



            prisoner of his settled expectations about the length of  his



            sentence,   and   violates   the   rule,   embedded  in   our



            jurisprudence,  that a  defendant only  be sentenced  for the



            crimes of which he is convicted.


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                                          5



Rodriguez  starts with  an  argument  that  federal



            trial  courts have  only  such jurisdiction  as Congress  has



            granted and that there is no grant of jurisdiction to revise,



            on  collateral attack,  a  sentence that  has already  become



            final.  Rodriguez argues  that Congress has expressly limited



            a court's  ability to modify  an already imposed  sentence to



            the three situations outlined in 18 U.S.C.   3582(c).  Two of



            the circumstances described in that  section are inapplicable



            here,  and  so,  he contends,  the  district  court  may only



            resentence him to the  extent "expressly permitted by statute



            or  by Rule 35 of  the Federal Rules  of Criminal Procedure."



            18 U.S.C.   3582(c)(1)(B).



                      On direct appeal (in contrast to the   2255  review



            here),  this  court has  permitted  resentencing  for a  drug



            trafficking conviction where  defendant's   924(c) conviction



            was set aside, post-Bailey:
                                ______



                      Since   it   is   conceivable  that   our

                      disposition of the [firearms] count might

                      affect the sentencing calculus  in regard

                      to the [drug trafficking] count, we honor

                      counsels' joint request and remand to the

                      district      court     for      possible

                      reconsideration    of     the    sentence

                      originally    imposed    on   the    drug

                      trafficking count.



            United States v. Valle, 72 F.3d 210, 218 (1st Cir. 1995).  At
            _____________    _____



            least  seven other circuits  have similarly  determined that,



            when a conviction  under    924(c) is reversed  on appeal  in
                                                            __ ______



            light  of Bailey, it is appropriate to remand to the district
                      ______


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                                          6



court  for resentencing  on the  remaining convictions.   See
                                                                      ___



            United States  v.  Jackson,  103  F.3d  561,  569  (7th  Cir.
            _____________      _______



            1996)(citing cases).



                      Rodriguez concedes that such resentencing on remand



            after direct  appeal may be  appropriate because 28  U.S.C.  



            2106 permits the appellate  court to "affirm, modify, vacate,



            set aside or reverse any judgment . . . brought before it for



            review"  and to  "remand the  cause and  . .  .  require such



            further  proceedings to  be  had as  may  be just  under  the



            circumstances."    28  U.S.C.    2106.    But that  statutory



            language  is inapplicable here, Rodriguez argues, because the



            drug trafficking convictions in this case have already become



            final after appeal;  thus,   2106's  broad grant of  remedial



            power  to the appellate court  cannot be read  to empower the
                          _________



            district court on  a   2255 motion.  Rodriguez further argues



            that his    2255  motion only sought  review of his    924(c)



            sentence  and  convictions,  and  that  his  drug trafficking



            sentence is therefore not properly "before" any court. 



                      We  agree  with  the  basic  tenet  of  Rodriguez's



            argument:  courts  are not  free  to  resentence  at will;  a



            statute  or  Rule  35  must authorize  such  an  exercise  of



            jurisdiction.   See United States  v. Fahm, 13  F.3d 447, 453
                            ___ _____________     ____



            (1st  Cir. 1994)  (district  court lacked  inherent power  to



            "correct"  a sentence  other than  as expressly  permitted by



            Rule 35).


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However,  Rodriguez's  argument  fails because  the



            language  of 28 U.S.C.    2255 expressly vests  some power in



            the district court:



                      If  the court finds that the judgment was

                      rendered  without  jurisdiction, or  that

                      the sentence imposed  was not  authorized

                      by  law or  otherwise open  to collateral

                      attack,  or that  there has  been such  a

                      denial    or    infringement    of    the

                      constitutional rights of the  prisoner as

                      to  render  the  judgment  vulnerable  to

                      collateral attack, the court shall vacate

                      and  set the  judgment  aside  and  shall

                      discharge the prisoner or  resentence him

                      or  grant  a  new trial  or  correct  the
                                               ________________

                      sentence as may appear appropriate.
                      ___________________________________



            28 U.S.C.   2255 (emphasis added).



                      This grant of power to "correct the sentence as may



            appear appropriate" resolves the jurisdictional issue against



            Rodriguez.   In  this,  we agree  with  the Fourth  Circuit's



            decision in  United States v.  Hillary, 106  F.3d 1170,  1172
                         _____________     _______



            (4th Cir. 1997)  and the Seventh Circuit's decision in United
                                                                   ______



            States v. Binford, 108 F.3d 723, 728-29 (7th Cir. 1997).  
            ______    _______



                      This  still  leaves  the  question of  when  it  is



            "appropriate" to "correct the sentence."  In United States v.
                                                         _____________



            Smith,  103 F.3d  531 (7th  Cir.  1996), the  Seventh Circuit
            _____



            ruled in favor of the exercise of jurisdiction to correct the



            remaining drug  trafficking sentence  where a prisoner,  on a



            motion  under    2255,  succeeded in  vacating his  mandatory



            consecutive five-year   924(c) sentence.  The Seventh Circuit



            found it "appropriate" to correct the sentence, because "[i]f


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a  multicount sentence is a package  . . . then severing part



            of the total sentence usually will unbundle it."  Id. at 534.
                                                              ___



                      The Seventh  Circuit further noted,  and we  agree,



            that  the  question of  the  "appropriate"  exercise of  that



            jurisdiction  cannot turn  entirely on  older  conceptions of



            "sentencing  packages" but  must consider  the effect  of the



            Sentencing  Guidelines.  See id.  at 534-35.  "The Sentencing
                                     ___ ___



            Reform  Act  of  1984  revolutionized  the  manner  in  which



            district  courts   sentence  persons  convicted   of  federal



            crimes."  Burns v.  United States, 501 U.S. 129,  132 (1991).
                      _____     _____________



            We  also agree  with the  Seventh Circuit's  conclusion that,



            while the Guidelines have altered  the idea of the sentencing



            package, they have  not eliminated the  concept.  Smith,  103
                                                              _____



            F.3d. at 534.



                      In a pre-Guidelines  case, this court both  adopted



            the  concept of  the  sentencing package  and suggested  some



            limits to its applicability.   In United States v.  Pimienta-
                                              _____________     _________



            Redondo, 874 F.2d 9 (1st Cir. 1989) (en banc), the defendants
            _______



            received consecutive  sentences for convictions on two counts



            of  drug trafficking.  On  appeal, this court  ruled that the



            two  counts  of  conviction  actually  constituted  a  single



            offense, reversed  the defendants' convictions on  one of the



            counts,  and remanded for resentencing on the second.  Id. at
                                                                   ___



            11-12.  The district court then resentenced the defendants on



            the remaining count  to a term as long as  the combined total


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                                          9



of the prior, consecutive  sentences on both counts.   Id. at
                                                                   ___



            12.   Defendants again  appealed. The en  banc court rejected



            defendants' double   jeopardy  and due process  challenges to



            the resentencing, holding that:



                      [a]fter  an  appellate court  unwraps the

                      [sentencing] package and  removes one  or

                      more  charges  from  its   confines,  the

                      sentencing judge, herself, is in the best

                      position  to assess  the  effect  of  the

                      withdrawal and to redefine  the package's

                      size and shape . . . .



            Id. at 14.  In light of the  concurring opinion of then-Judge
            ___



            Breyer  and  Judge  Campbell, Pimienta-Redondo's  "sentencing
                                          ________________



            package" holding  should be confined to  situations where the



            same basic course of conduct underlies both the vacated count



            and the count on  which the conviction is affirmed,  and that



            basic conduct  determines the sentence.   Id. at  17 (Breyer,
                                                      ___



            J., concurring).  



                      In  this case, the  Guidelines establish  a similar



            relationship of interdependence between the vacated count  of



            conviction,  the affirmed  count of  conviction, and  the new



            sentence:  Both Rodriguez's conviction under   924(c) and the



            enhancement imposed in resentencing  him turn on the presence



            of a weapon  during a drug trafficking  offense.  Rodriguez's
                                  _________________________



            conviction  for that  basic course  of conduct  was affirmed.



            The Guidelines  require  sentencing judges  to consider  "all



            acts  and omissions . . . that occurred during the commission



            of  the  offense  of  conviction  .   .  .  ."    U.S.S.G.   


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                                          10



1B1.3(a)(1).  Thus,  under both the  Guidelines and our  pre-



            Guidelines precedent, Rodriguez's sentence may  be considered



            as a "sentencing package."  



                      Rodriguez  argues  that,   because  the      924(c)



            firearms sentence was consecutive, it is not part of the same



            "sentencing package"  as his  drug trafficking sentence.   He



            relies  on  U.S.S.G.    5G1.2,  which  governs sentencing  on



            multiple counts of conviction, and provides:



                      (a) The sentence to be imposed on a count

                      for   which   the   statute  mandates   a

                      consecutive sentence  shall be determined

                      and imposed independently.



            U.S.S.G.     5G1.2.   That the  firearms  sentence had  to be



            calculated independently  does not mean that  the sentence on



            the  drug  counts did  not depend  on  the existence  of that



            sentence;  to  the contrary,  the Guidelines  specify such  a



            relationship. See U.S.S.G.   2K2.4, comment. (n.2 & backg'd).
                          ___



            Thus,  we  hold that,  where  the  Guidelines contemplate  an



            interdependent  relationship between  the  sentence  for  the



            vacated  conviction  and  the  sentence   for  the  remaining



            convictions -- a sentencing package1 -- a district court may,



            on  a  petition under  28 U.S.C.     2255, resentence  on the


____________________



            1.  To the extent that the Seventh Circuit's opinions in

            Smith and Binford can be read to permit resentencing whenever
            _____     _______

            there is a sentencing package, and to define a "sentencing

            package" as "the bottom line, the total number of years (or

            under the guidelines, months) which effectuates a sentencing

            plan," Smith, 103 F.3d at 533, we part company and find it
                   _____

            unnecessary to state so broad a rule. 



                                         -11-
                                          11



remaining convictions.2  We leave to another day the question



            of whether there is such authority when the Guidelines do not



            contemplate such an interdependent sentencing package.3  



                      Rodriguez's  two  constitutional  claims   fare  no



            better  than  does his  jurisdictional  claim.   Because  the



            consideration of  acquitted conduct in fashioning  a sentence



            does not,  absent special  circumstances, violate  either the



            Due Process or the Double Jeopardy Clause,  see United States
                                                        ___ _____________



            v.  Watts, 117 S.  Ct. 633, 636-37 (1997),  the fact that the
                _____



            district court considered the conduct underlying the  vacated



            conviction  in enhancing  the sentence  for the  drug offense



            does not in itself  violate the Constitution.  To  the extent



            that  there are  valid  due process  concerns about  possible



            vindictiveness  on resentencing, the  safeguards announced by



            the Supreme Court in  North Carolina v. Pearce, 395  U.S. 711
                                  ______________    ______



            (1969), and  applied by  this court in  Pimienta-Redondo, 874
                                                    ________________



            F.2d  at 12-14, adequately  address this  problem.   See also
                                                                 ___ ____



            United  States  v. Twitty,  104 F.3d  1,  2 (1st  Cir. 1997);
            ______________     ______



            United States v.  Clark, 84  F.3d 506  (1st Cir.)  (outlining
            _____________     _____



            contours   of   Pearce   presumption    of   vindictiveness),
                            ______



            cert. denied,  117 S. Ct. 272  (1996).  On  the facts of this
            _____ ______


____________________



            2.  There may be occasions where the authority to resentence

            works in a defendant's favor.  There may be occasions where

            the trial judge believes the interrelationship requires a

            reduction in the remaining sentence.  



            3.  The Sentencing Commission may wish to address this topic.



                                         -12-
                                          12



case, no claim of vindictiveness has been, or could be, made.


There  is another  theory  that Rodriguez  advances



            under the Due Process Clause.  Relying on Breest v. Helgemoe,
                                                      ______    ________



            579  F.2d  95 (1st  Cir.  1978),  he argues  that  he was  "a



            substantial  period of time" -- more than three years -- into



            his  sentence  when  he  was  resentenced,  and  that  it  is



            "fundamentally unfair, and thus  violative of due process for



            a  court to alter  even an  illegal sentence  in a  way which



            frustrates a prisoner's expectations by postponing  his . . .



            release  date far beyond that  originally set."   Id. at 101.
                                                              ___



            Here, Rodriguez's  new release date  is still more  than four



            years   earlier  than   his   original   release  date;   the



            psychological unfairness  described in Breest is  thus not an
                                                   ______



            issue here.  We acknowledge that, on other facts, due process



            concerns could be raised.4


____________________



            4.  We have said that there may be limits on the right to

            correct an erroneous sentence in cases "with extreme facts: 

            a long delay, actual release of the defendant from custody

            based on the shorter sentence, singling out of the defendant

            for a belated increase apparently because of his commission

            of another offense for which parole revocation would have

            been available, and other troubling characteristics."  United
                                                                   ______

            States v. Goldman, 41 F.3d 785, 789 (1st Cir. 1994); see also
            ______    _______                                    ___ ____

            DeWitt v. Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993)(noting
            ______    __________

            that there is "no single touchstone" for determining if delay

            in resentencing is inconsistent with the Due Process Clause

            and listing considerations including the lapse of time, the

            reasonableness of defendant's expectations, prejudice, and

            diligence exercised by the state).  Delay may, in future

            cases, be less of an issue because of the strict time limits

            that 28 U.S.C.   2255 now imposes on the filing of petitions.



                                         -13-
                                          13



We  think  that,  given  the  language  of     2255



            discussed earlier  and the  fact that Rodriguez  is still  in



            custody,  he could  have no  settled expectation  of finality



            with  respect to a portion of his total sentence which, under



            the   Guidelines,  is     part   of  a   sentencing  package.



            Accordingly,  there is  no violation  of the  Double Jeopardy



            Clause here.  This case does not involve a petitioner who had



            already   fully   discharged  his   sentence  and   then  was



            resentenced, see  United States v.  Silvers, 90 F.3d  95, 101
                         ___  _____________     _______



            (4th Cir. 1996),  and we  intimate nothing  about the  double



            jeopardy consequences of such a situation.5  Cf. Hillary, 106
                                                         ___ _______



            F.3d at 1173.



                      Affirmed. 
                      _________


____________________



            5.  This scenario is not farfetched.  Sometimes a case takes

            such time to wend its way through the court system that the

            prisoner is released by the time it is resolved.  And,

            because convictions carry collateral consequences even after

            incarceration has ended, appeals may be brought after release

            in an effort to avoid those consequences.  See Ball v. United
                                                       ___ ____    ______

            States, 470 U.S. 856, 864-65 (1985).
            ______



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