F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 28 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 99-6222
v. (W.D. Oklahoma)
TIMOTHY SHAUN JOHNSON, (D.C. No. CV-97-683-C)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Timothy Shaun Johnson seeks a certificate of appealability to appeal the
district court’s partial denial of his 28 U.S.C. § 2255 motion. A jury convicted
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Johnson of one count of conspiracy to distribute cocaine powder and/or cocaine
base in violation of 21 U.S.C. §§ 841(a), 846; twelve counts of distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1); three counts of aiding and
abetting interstate travel in aid of racketeering in violation of 18 U.S.C. §§ 2,
1952(a)(3); and one count of knowingly using or carrying a firearm during a drug
trafficking crime in violation of 18 U.S.C. § 924(c). Johnson was sentenced to
410 months on the conspiracy and drug related counts and a consecutive 60
months for the section 924(c) violation. We affirmed his convictions and
sentence. See United States v. Johnson, No. 94-6425, 1995 WL 678514 (10th Cir.
Nov. 15, 1995).
On April 24, 1997, Johnson filed a motion pursuant to 28 U.S.C. § 2255
attacking both his conviction and sentence on four grounds: (1) the conviction
and sentence on Count 19 (using or carrying a firearm) were invalid in light of
Bailey v. United States, 516 U.S. 137 (1995), (2) the relevant conduct attributed
to Johnson for sentencing purposes was not reasonably foreseeable, (3) the district
court erred in relying on the testimony of drug addicts to establish the amount of
drugs attributable to Johnson for sentencing purposes, and (4) Johnson was denied
effective assistance of trial counsel because counsel failed to call alibi witnesses,
to request a unanimous verdict, or to request a jury instruction on drug addict
testimony.
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In an amended order, the district court granted Johnson’s motion with
respect to Count 19, and vacated the firearm conviction and related sentence; held
that claims 2 and 3 were procedurally barred because Johnson did not raise them
on direct appeal; and, as to claim 4, held that trial counsel’s performance was not
deficient and did not prejudice Johnson. The court declined to resentence
Johnson, resulting in a remaining sentence (after vacating that portion relating to
Count 19) of 410 months.
Johnson appeals on the sole ground that the district court should have
resentenced him, thus relieving him of the procedural bar to his second and third
claims, set out above, and allowing him to pursue the substance of those matters
during resentencing. Essentially, Johnson argues that, under the “sentencing
package” doctrine, when the district court vacates a conviction and its related
sentence on one count, it must conduct resentencing on the entire case. See
Appellant’s Br. at 7. We disagree.
A district court possesses authority to resentence a defendant after vacating
a section 924(c) conviction under Bailey. See United States v. Easterling, 157
F.3d 1220, 1224 (10th Cir. 1998) (“holding that, on resentencing, a district court
is entitled to revisit a petitioner’s entire sentence, not just the challenged portion
of that sentence”); United States v. Mendoza, 118 F.3d 707, 710 (10th Cir. 1997)
(“district court possessed authority under § 2255 to resentence defendant on the
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[related] conspiracy conviction, after having vacated the § 924(c) conviction and
sentence”). However, that authority is discretionary, not mandatory. See United
States v. Pearce, 146 F.3d 771, 775 (10th Cir. 1998) (citing 29 U.S.C. § 2255).
After deleting part of Johnson’s sentence, the district court noted its
discretionary authority to recompute Johnson’s entire sentence but found that the
remaining “sentence originally imposed is more than sufficient to reflect the
seriousness of the offense conduct and satisfy the goals of the Sentencing Reform
Act. In the absence of authority mandating resentencing, the Court instead elects
to leave the 410-month sentence in effect, without recomputation or
resentencing.” United States v. Johnson, No. CR-94-64-C, slip op. at 2 (W.D.
Okla. May 13, 1999) (Order). Johnson advances no persuasive reason in support
of an argument that the court abused its discretionary authority, and we conclude
that it did not. Accordingly, Johnson’s other claims relating to alleged errors in
his original sentencing calculation remain procedurally barred.
For the reasons stated above, because Johnson has not “made a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we
DENY the request for a certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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