IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50627
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DAVERNE M FOY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-96-CA-101)
_________________________________________________________________
June 3, 1997
Before KING, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
The government challenges the district court’s conclusion
that it did not have authority to resentence Daverne M. Foy on
his drug convictions after granting Foy’s 28 U.S.C. § 2255
petition and vacating his conviction under § 924(c)(1) for using
a firearm during a drug-trafficking offense. We conclude that
the district court had authority under § 2255 to resentence Foy
and that such a resentencing does not implicate double jeopardy.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
Thus, we reverse the district court’s conclusion that it had no
authority to resentence and remand for resentencing.
I. BACKGROUND
Foy was charged in a second superseding indictment with
conspiracy to possess with intent to distribute cocaine base
(count one), possession with intent to distribute cocaine base
(count two), possession with intent to distribute marijuana
(count three), using and carrying a firearm during a drug-
trafficking offense (count four), and possession of a firearm
bearing an obliterated serial number (count five). Foy pleaded
guilty to the charge of conspiracy to possess with intent to
distribute marijuana in exchange for the dismissal of the other
charges. Prior to sentencing, the court rejected the plea
agreement.
A jury found Foy guilty of counts one, three, four, and of
the lesser-included offense of simple possession on count two.
The district court sentenced Foy to two 97-month concurrent terms
of imprisonment on counts one and three, a 12-month concurrent
term of imprisonment on count two, a 60-month consecutive term of
imprisonment on count four, a 5-year term of supervised release,
and a $175 special assessment.
On direct appeal, this court vacated Foy’s sentence and
remanded the case to the district court to reconsider its
rejection of the plea agreement. United States v. Foy, 28 F.3d
2
464, 477 (5th Cir. 1994). The court instructed that if the
district court on remand rejected the plea agreement, it should
resentence Foy based on a specific finding as to the relevant
drug quantity. On remand, the district court reaffirmed its
rejection of the plea agreement. After making specific findings
as to the relevant drug quantity, the court sentenced Foy to
concurrent terms of imprisonment of 51 months on counts one and
three, a concurrent 12-month term of imprisonment on count two,
and a consecutive 60-month term of imprisonment on count four.
This court dismissed Foy’s appeal following the filing by counsel
of an Anders1 brief.
Foy filed a 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence, arguing that his sentence for using and
carrying a firearm during and in relation to a drug-trafficking
offense should be vacated in light of Bailey v. United States,
116 S. Ct. 501 (1995). The government conceded that Foy’s
§ 924(c)(1) conviction should be dismissed.2 The government
argued that the district court should resentence Foy on counts
one through three. Foy filed a response, arguing that the
1
Anders v. California, 386 U.S. 738 (1967).
2
In Bailey, the Supreme Court held that a conviction for
“use” of a firearm during and in relation to a drug-trafficking
crime (18 U.S.C. § 924(c)(1)) requires “active employment of the
firearm,” which is more than mere possession. 116 S. Ct. at 506.
The government has conceded that the evidence presented at trial is
insufficient to prove that Foy actively employed a firearm.
3
district court was without jurisdiction to resentence him as to
the remaining counts.
The magistrate judge recommended that the district court
grant Foy’s § 2255 motion and order resentencing. Foy filed
objections to the magistrate judge’s report. The district court
accepted in part the magistrate judge’s report and
recommendation. The court ordered that Foy’s § 2255 motion be
granted and the 60-month sentence for a violation of § 924(c)(1)
be vacated. The court did not order resentencing, reasoning that
it lacked jurisdiction to resentence Foy. The court ordered that
the vacating of the 60-month sentence be stayed pending final
resolution of an appeal by the government. The government filed
a timely notice of appeal.3
II. ANALYSIS
The Sentencing Guidelines provide for a two-level
enhancement if the defendant possessed a firearm during the
commission of a drug offense. U.S. SENTENCING GUIDELINES MANUAL
§ 2D1.1(b)(1) (1995) [hereinafter USSG]. Although sentenced on
3
Although 28 U.S.C. § 2253 states that a certificate of
appealability is required to appeal from a “final order” in a
§ 2255 proceeding, it is well-settled that the government is not
required to obtain such a certificate. See FED. R. APP. P. 22(b)
(“If an appeal is taken by a State or its representative, a
certificate of appealability is not required.”); cf. Texas v.
Graves, 352 F.2d 514, 514 (5th Cir. 1965) (“We are of the opinion
that it is not necessary for a state or its representative to
obtain a certificate of probable cause in order to take an appeal
to the Court of Appeals from a final order granting a writ of
habeas corpus . . . .”).
4
three drug offenses, Foy did not receive this enhancement because
he was also sentenced for using a gun during a drug trafficking
offense in violation of 18 U.S.C. § 924(c)(1), and the Sentencing
Guidelines prohibit sentencing for a § 924(c)(1) conviction and
also applying the two-level enhancement for the other drug
offenses. See USSG § 2K2.4 Application Note 2.
The government argues that because Foy’s § 924(c)(1)
conviction has been vacated pursuant to Bailey, the restriction
in USSG § 2K2.4 no longer applies and the district court should
have resentenced Foy on the other counts to take into account the
possession of the firearm. Foy responds that he did not
challenge his sentence on the other convictions and, as such, the
district court had authority only to alter the sentence he
challenged.
The district court agreed with Foy, concluding that “the
Court has no authority to resentence the movant on the remaining
counts for which he was legally convicted.” Because the district
court determined it had no authority to resentence Foy on the
drug convictions, “the Court decline[d] to reach the double
jeopardy and due process arguments implicated by the Government’s
request to resentence the movant.”
At the time of the district court’s decision, no Fifth
Circuit cases addressed the authority of a district court to
resentence a defendant on other drug offenses after vacating a
5
§ 924(c)(1) conviction pursuant to Bailey. However, a panel of
this court recently confronted the issue in United States v.
Rodriguez, No. 96-30878, 1997 WL 265121 (5th Cir. May 20, 1997).
Rodriguez was sentenced for conspiracy and possession with intent
to distribute cocaine and for two firearms offenses under
§ 924(c)(1). Id. at *1. After Bailey, Rodriguez filed a § 2255
motion to vacate his firearms convictions, and the district court
granted his motion. Id. The district court resentenced
Rodriguez on his other two drug offenses to account for the
possession of a gun, which the court previously had been
prevented from considering because of the § 924(c)(1)
convictions. Id. Rodriguez argued that the district court had
no authority to resentence him on the drug offenses because he
had not challenged those sentences. Id. We affirmed, concluding
that the district court, in modifying the other sentences to
account for possession of the guns, acted as “authorized and
directed” by § 2255, which provides:
If the court finds that . . . the sentenced imposed was
not authorized by law . . . , the court shall . . .
correct the sentence as may appear appropriate.
The pertinent facts in the case at bar are identical to those in
Rodriguez, and therefore the district court erred in determining
that it did not have authority to resentence Foy on the drug
offenses to account for gun possession. Thus, we remand for the
district court to resentence Foy.
6
Such resentencing does not implicate double jeopardy.
Rodriguez specifically addressed the argument that resentencing
on the drug offenses to account for gun possession constituted
double jeopardy. 1997 WL 265121, at *2. The court noted that
under established law, resentencing poses double jeopardy
concerns “only if a defendant has developed a legitimate
‘expectation in the finality of [his] original sentence.’” Id.
(quoting United States v. DiFrancesco, 449 U.S. 117, 139 (1980)).
The court concluded that Rodriguez had no such expectation
because he challenged part of a series of interrelated
convictions and therefore “the double jeopardy clause was not
implicated in the sentencing of Rodriguez.” Id. Again, the
pertinent facts in Rodriguez are identical to those here, and we
conclude that Foy’s double jeopardy argument fails because the
challenge of his § 924(c)(1) conviction implicated the
interrelated drug offenses, meaning he had no legitimate
expectation of finality in his original sentence.4
III. CONCLUSION
4
The Supreme Court has held that resentencing after a
defendant has successfully exercised a legal right can implicate
due process if the new sentence is vindictive in nature. North
Carolina v. Pearce, 395 U.S. 711 (1969); United States v.
Campbell, 106 F.3d 64 (5th Cir. 1997). Because the district
court has not actually resentenced Foy, any discussion of this
due process issue is premature.
7
For the foregoing reasons, we REVERSE the district court’s
determination that it had no authority to resentence Foy and
REMAND for resentencing.
8