UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30878
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO PERDOMO RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
May 20, 1997
Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and JUSTICE,* District Judge.
POLITZ, Chief Judge:
Gustavo Perdomo Rodriguez challenges the district court’s authority to
resentence him after his convictions under 18 U.S.C. § 924(c)(1) were vacated.
Concluding that the district court had the authority under 28 U.S.C. § 2255 to
resentence Rodriguez and that it did not violate the double jeopardy clause by
doing so, we affirm.
*
District Judges of the Eastern District of Texas, sitting by designation.
BACKGROUND
In 1990, Rodriguez pled guilty to conspiracy to distribute and possession
with intent to distribute two kilograms of cocaine.1 In addition, a jury convicted
Rodriguez of using a machine gun, a shotgun, and a revolver during the
commission of the offenses.2 The district court sentenced Rodriguez to
imprisonment for 115 months for the two drug offenses, 30 years for the use of the
machine gun and 5 years for the use of the shotgun and revolver.
After the Supreme Court decided Bailey v. United States,3 Rodriguez filed a
section 2255 petition seeking the vacating of his convictions on the two firearm
offenses. The district court agreed but, at the urging of the government,
resentenced Rodriguez on the two drug offenses, applying the two-level
enhancement provided for in section 2D1.1(b)(1) of the Sentencing Guidelines.4
As a result, the sentence imposed for the drug offenses increased from 115 to 137
months imprisonment. Rodriguez timely appealed.
ANALYSIS
Rodriguez’s section 2255 petition urging the Bailey holding necessarily
1
21 U.S.C. § 846 and 841.
2
18 U.S.C. § 924(c)(1).
3
116 S.Ct. 501 (1995).
4
Section 2D1.1(b)(1) provides that “[i]f a dangerous weapon (including a firearm) was
possessed [during the commission of a drug offense], increase [the defendant’s base
offense level] by 2 levels.”
2
challenged only his convictions under section 924(c)(1). There was no attack on
his convictions under sections 846 and 841. Rodriguez contends that the district
court had only the power to alter the sentences imposed under the section 924(c)(1)
convictions. We are not persuaded.
Section 924(c)(1) and sections 846 and 841 share a commonality; all provide
punishment for the same conduct -- the use of a firearm during a drug offense.5
Limitations, however, apply to the imposition of that punishment. When a
conviction results in a section 924(c)(1) charge as well as a charge under either or
both sections 846 and 841, the imposition of the mandatory, consecutive sentence
under section 924(c)(1) trumps consideration of that conduct in the computation of
the sentence for the other conviction(s). Rodriguez was convicted of two section
924(c)(1) firearm offenses and two drug offenses under sections 846 and 841. The
existence of the firearms was considered only in the firearm count sentences.
Rodriguez challenged those convictions in his section 2255 petition.
Reviewing the section 2255 challenge in light of Bailey the district court
correctly concluded that the two convictions for 924(c)(1) violations were invalid.
The sentences imposed thereunder were vacated as not authorized by law. The
court then proceeded to correct the sentences imposed, as authorized and directed
5
Section 924(c)(1) requires a consecutive term of imprisonment upon conviction,
while sections 846 and 841 require a two-level sentence enhancement upon conviction.
The consecutive term of imprisonment and the two-level sentence enhancement cannot,
however, be imposed simultaneously. See Sentencing Guidelines § 2K2.4 Application
Note 2 (“Where a sentence under [section 924(c)(1)] is imposed in conjunction with a
sentence for an underlying offense, any specific offense characteristic for
the...use...of...[a] firearm...is not to be applied in respect to the guideline for the
underlying offense.”).
3
by section 2255 which provides:
If the court finds that...the sentence imposed was not authorized by
law...the court shall...correct the sentence as may appear appropriate.
In resentencing, the trial court did not err by considering the firearms in its
guidelines computation of the sentencing range.6
Rodriguez maintains that consideration of the firearms in resentencing
constitutes a violation of the double jeopardy clause. We do not agree. That
constitutional guarantee does not proscribe the resentencing of a defendant. Rather,
as the Supreme Court taught in United States v. DiFrancesco, it prohibits
resentencing only if a defendant has developed a legitimate “expectation of finality
in [his] original sentence.”7 Rodriguez did not have such an expectation for he
challenged two of his four interrelated convictions, placing the validity of his entire
sentence at issue. As we held in United States v. Colunga,8 citing DiFrancesco and
6
Our colleagues in five other circuits have likewise held that the language of section
2255 vests district courts with the power to resentence defendants who successfully
challenge section 924(c)(1) convictions. See United States v. Rodriguez, 1997 WL
203301, ___ F.3d ___ (1st Cir. 1997); United States v. Davis, 1997 WL 195397, ___
F.3d ___ (3d Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997); United
States v. Smith, 103 F.3d 531 (7th Cir. 1996); and United States v.
Harrison, 1997 WL 232266, ___ F.3d ___ (8th Cir. 1997).
7
101 S.Ct. 426, 438 (1980) (“Although it might be argued that the defendant perceives
the length of his sentence as finally determined when he begins to serve it, and that the
trial judge should be prohibited from thereafter increasing the sentence, that argument has
no force where...there can be no expectation of finality in the original sentence.”).
8
812 F.2d 196, 198 (5th Cir.), cert. denied, 108 S.Ct. 165 (1987). See also United
States v. Greenwood, 974 F.2d 1449 (5th Cir. 1992), cert. denied 113 S.Ct. 2354 (1993);
United States v. Crawford, 769 F.2d 253 (5th Cir. 1985), cert. denied 106 S.Ct. 887
(1986).
4
North Carolina v. Pearce,9 the defendant “had no reasonable expectation of finality
in the original sentence imposed on either count, since he had himself sought to
nullify the sentencing plan by overturning one of [his] two convictions.” We
therefore conclude and hold that the double jeopardy clause was not implicated in
the resentencing of Rodriguez.10
The judgment appealed is AFFIRMED.
9
395 U.S. 711 (1969).
10
In urging that his resentencing violated the double jeopardy clause Rodriguez relies
on Chandler v. United States, 468 F.2d 834 (5th Cir. 1972). In Chandler we held that the
resentencing of a defendant on an unchallenged conviction violated the double jeopardy
clause. Chandler was decided before the Supreme Court announced the “expectation of
finality” test in DiFrancesco. We must, therefore, view Chandler and its progeny, United
States v. Naas, 755 F.2d 1133 (5th Cir. 1985) and United States v. Larson, 625 F.2d 67
(5th Cir. 1980), through the prism of the holding in
DiFrancesco and follow that teaching and our decisions based thereon.
5