IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-10308
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UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
JAMES ROBERT BENBROOK, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
For the Northern District of Texas
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July 31, 1997
Before KING, DUHÉ, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant James Robert Benbrook, Jr. appeals his
resentencing by the district court following a successful challenge
to his 18 U.S.C. §924(c) conviction. Finding no error, we affirm.
I.
FACTS AND PROCEEDINGS
A jury convicted Benbrook of unlawful possession of
phenylacetic acid, in violation of 18 U.S.C. §841(d)(2), and using
a firearm during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. §924(c).1 The district court sentenced him
to consecutive terms of imprisonment —— forty-six months for the
1
During trial, the district court granted Benbrook’s motion
for judgment of acquittal on the “carry” prong of §924(c).
drug conviction and sixty months for the firearm conviction,
followed by a three-year period of supervised release, and payment
of a mandatory special assessment of $100. We affirmed.2
After the United States Supreme Court decided Bailey v. United
States,3 Benbrook filed a habeas corpus petition, pursuant to 28
U.S.C. §2255, asserting that the evidence was insufficient to
support his “use” conviction under §924(c). The government
conceded that this relief should be granted, but urged the district
court to resentence Benbrook on the underlying drug conviction by
applying a two-level enhancement to his offense level, pursuant to
United States Sentencing Guideline (U.S.S.G.) §2D1.1(b)(1), for
possession of a dangerous weapon. The district court did just
that, vacating Benbrook’s §924(c) conviction and resentencing him
to fifty-seven months of imprisonment on the drug count, followed
by a three-year period of supervised release, and payment of a
mandatory special assessment of $50.
Benbrook appealed, asserting that the district court had no
jurisdiction to resentence him on the unchallenged, underlying drug
conviction. He contends that the resentencing violated the Double
Jeopardy Clause.
II.
ANALYSIS
18 U.S.C. §924(c) and Sentencing Guideline §2D1.1(b)(1) punish
the same conduct —— the use of a firearm during the commission of
2
United States v. Benbrook, 40 F.3d 88 (5th Cir. 1994).
3
-- U.S. --, 116 S. Ct. 501 (1995).
2
a drug offense. As indicated by their interdependent sentences,
§924(c)’s firearm offense and the underlying drug offense of
§841(d)(2) are inextricably intertwined: Section 924(c) requires
the imposition of a five year sentence to be served consecutively
to any other term of imprisonment associated with an underlying
drug conviction. In like manner, §2D1.1(b)(1) of the Guidelines
requires a two-level increase to a defendant’s base offense level
for the possession of a dangerous weapon, including a firearm,
during the commission of a drug offense such as that proscribed by
§841(d)(2).
When a defendant is sentenced under §924(c), however, the
sentencing guidelines expressly prohibit application of the
§2D1.1(b)(1) two-level increase, as the level enhancement under
those circumstances would result in an impermissible double
counting of the firearm offense —— once under §924(c) and again
under §2D1.1(b)(1).4 Consequently, at the time of the original
sentencing under §924(c), the two-level enhancement of §2D1.1(b)(1)
is not available.
Benbrook argues that the district court had no jurisdiction to
resentence him on his unchallenged, underlying drug conviction or
to apply the two-level enhancement. Thus Benbrook would handcuff
the district court by restricting resentencing to that complained
of in his petition and prohibiting reconsideration of the entire
sentence. We disagree.
We have recently held that §2255 vests the district court with
4
See U.S.S.G. §2K2.4 Commentary Background (1995).
3
the power to resentence a defendant who successfully challenges his
§924(c) conviction only and that the district court may consider
imposition of the two-level enhancement of §2D1.1(b)(1) in
resentencing that defendant.5 We therefore hold that the district
court lawfully applied the two-level enhancement in resentencing
Benbrook on his unchallenged, underlying drug conviction.
Benbrook’s new sentence turns in part on the now vacated §924(c)
conviction, which freed the district court’s hands, where they were
tied before, to increase the offense level of Benbrook’s drug
conviction for the firearm offense pursuant to § 2D1.1(b)(1).
Neither does the district court’s resentencing violate the
Double Jeopardy Clause.6 That constitutional protection prohibits
resentencing only when a defendant has developed a legitimate
expectation of finality in his original sentence.7 When a
defendant challenges one of interdependent convictions, however, he
has no expectation of finality in his original sentence, having put
at issue the validity of the entire sentence.8 In seeking relief
from his §924(c) conviction and the consecutive sixty months
portion of his sentence attributable to that conviction, Benbrook
5
United States v. Rodriguez, 114 F.3d 46, 47-8 (5th Cir.
1997); United States v. Hernandez, 1997 WL 332519 at *2 (5th Cir.
June 18, 1997).
6
Rodriguez, 114 F.3d at 48; Hernandez, 1997 WL 332519 at *2.
7
See United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.
Ct. 426, 438 (1980).
8
See Rodriguez, 114 F.3d at 48 (quoting United States v.
Colunga, 812 F.2d 196, 198 (5th Cir.), cert. denied, 484 U.S. 857,
108 S. Ct. 165 (1987)); Hernandez, 1997 WL 332519 at *2.
4
opened the door for the district court to revisit the entire
sentence —— not just to vacate that conviction but also to
resentence him on the unchallenged, underlying drug conviction.
Benbrook insists that he had a legitimate expectation of
finality in his drug sentence, as he had completed the term of
imprisonment originally allocated to that offense. Benbrook’s
argument, however, rests on the erroneous assumption that he
received separate and distinct sentences for his drug and firearm
convictions. To the contrary, he received one aggregate sentence
for those interdependent offenses. When Benbrook attacked part of
that aggregate sentence —— his §924(c) conviction, he necessarily
attacked the whole. Thus, he could have had no legitimate
expectation of finality in any portion of the original aggregate
sentence.9 Moreover, assuming that Benbrook has served the term of
9
See United States v. Rico, 902 F.2d 1065, 1068 (2d Cir.
1990)(defendant had not completed service of full sentence, as she
still faced five-year term of supervised release; therefore,
district court could correct sentence to conform to plea agreement
without violating the Double Jeopardy Clause); Woodhouse v. United
States, 934 F. Supp. 1008, 1014 (C.D. Ill. 1996)(defendant who
challenges his §924(c) conviction has no legitimate expectation of
finality in any portion of original aggregate sentence, even if he
has already served the term of imprisonment allocated to the
underlying drug conviction); Merritt v. United States, 930 F. Supp.
1109, 1114 (E.D.N.C. 1996)(after overturning §924(c) conviction,
district court could resentence defendant who had served term of
imprisonment allocated to drug conviction, as original sentence was
an aggregate one, service of which had not been completed); and
United States v. Acosta, 1996 WL 445351 at *4 (E.D. Pa. Aug. 5,
1996)(unpublished opinion)(sentence not fully served where
defendant had not completed term of imprisonment imposed for
interdependent convictions or four-year term of supervised
release). But see United States v. Daddino, 5 F.3d 262, 265 (7th
Cir. 1993)(defendant, who was convicted of conspiracy and attempted
extortion and who had served term of imprisonment and paid fines,
but had not completed period of supervised release, had a
legitimate expectation of finality in the completed part of the
5
imprisonment originally allocated to his drug conviction, he has
not completed, much less begun, the mandatory three-year period of
supervised release.10
III.
CONCLUSION
For the foregoing reasons, we hold that the district court did
not err generally in resentencing Benbrook on his unchallenged,
underlying drug conviction, nor specifically in applying the two-
level enhancement of §2D1.1(b)(1). It follows that the district
court’s resentencing of Benbrook should be and therefore is
AFFIRMED.
sentence); Warner v. United States, 926 F. Supp. 1387, 1392 (E.D.
Ark. 1996)(defendant enjoys legitimate expectation of finality in
completed term of lawful incarceration for underlying drug
conviction; thus, district court’s resentencing following
defendant’s successful challenge to his §924(c) conviction would
violate Double Jeopardy and Due Process Clauses; no mention of
supervised release); and United States v. Pecina, 952 F. Supp. 409,
412 n.2 (N.D. Tex. 1996)(court need not address the situation in
which sentence on underlying drug convictions has been completed
prior to vacation of §924(c) conviction, “a situation in which the
constitutionality of resentencing would be far more questionable”).
10
A period of supervised release is part of the defendant’s
sentence. See 18 U.S.C. §3583(a)(1994)(“The court, in imposing a
sentence to a term of imprisonment ..., may include as part of the
sentence a requirement ... of supervised release.”) and U.S.S.G.
§5D1.1(a)(1995)(“The court shall order a term of supervised release
to follow imprisonment when a sentence of imprisonment of more than
one year is imposed, or when required by statute.”).
6