United States v. Sean M. Fennell

D.C. Circuit

United States v. Sean M. Fennell

77 F.3d 510, 316 U.S. App. D.C. 198, 1996 U.S. App. LEXIS 10703, 1996 WL 91616

CourtCourt of Appeals for the D.C. Circuit

DecidedMarch 4, 1996

Docket93-3064

StatusPublished

Cited by47 cases

This text of 77 F.3d 510 (United States v. Sean M. Fennell) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Sean M. Fennell, 77 F.3d 510, 316 U.S. App. D.C. 198, 1996 U.S. App. LEXIS 10703, 1996 WL 91616 (D.C. Cir. 1996).

Pincite

Opinion

ORDER

PER CURIAM.

In an opinion filed May 5, 1995, we affirmed Fennell’s conviction under 18 U.S.C. § 924(c). After he petitioned for rehearing, we deferred our decision pending the Supreme Court’s disposition of Bailey v. United States, - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In light of Bailey, we granted the petition and requested further briefing.

The Government agrees that Bailey requires reversal of Fennell’s § 924(c) conviction, but requests that we remand for resen-tencing on his drug conviction, arguing that without the § 924(c) conviction, he should receive a 2-level upward adjustment under U.S.S.G. § 2D1.1(b)(1). Fennell argues that the Government has waived its right to re-sentencing by not filing a “conditional cross-appeal” — that is, a timely appeal asserting that if the court were to reverse the § 924(c) conviction, the court should remand for re-sentencing on the drug count. We disagree. Requiring the Government to file a preemptive cross-appeal in this sort of case “would burden appellees (and courts) with no appreciable benefit to appellate practice.” United States v. Bohn, 959 F.2d 389, 394 (2d Cir. 1992). Accordingly, it is hereby

*511 ORDERED that appellant’s conviction under 18 U.S.C. § 924(c) be reversed; and it is further

ORDERED that this case be remanded to the district court for resentencing.

Free access — add to your briefcase to read the full text and ask questions with AI

ORDER

PER CURIAM.

In an opinion filed May 5, 1995, we affirmed Fennell’s conviction under 18 U.S.C. § 924(c). After he petitioned for rehearing, we deferred our decision pending the Supreme Court’s disposition of Bailey v. United States, - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In light of Bailey, we granted the petition and requested further briefing.

The Government agrees that Bailey requires reversal of Fennell’s § 924(c) conviction, but requests that we remand for resen-tencing on his drug conviction, arguing that without the § 924(c) conviction, he should receive a 2-level upward adjustment under U.S.S.G. § 2D1.1(b)(1). Fennell argues that the Government has waived its right to re-sentencing by not filing a “conditional cross-appeal” — that is, a timely appeal asserting that if the court were to reverse the § 924(c) conviction, the court should remand for re-sentencing on the drug count. We disagree. Requiring the Government to file a preemptive cross-appeal in this sort of case “would burden appellees (and courts) with no appreciable benefit to appellate practice.” United States v. Bohn, 959 F.2d 389, 394 (2d Cir. 1992). Accordingly, it is hereby

*511 ORDERED that appellant’s conviction under 18 U.S.C. § 924(c) be reversed; and it is further

ORDERED that this case be remanded to the district court for resentencing.

Cite This Page — Counsel Stack

Bluebook (online)

77 F.3d 510, 316 U.S. App. D.C. 198, 1996 U.S. App. LEXIS 10703, 1996 WL 91616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sean-m-fennell-cadc-1996.

Opinion

Related

Cite This Page — Counsel Stack