United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 1999 Decided June 11, 1999
No. 98-3041
United States of America,
Appellee
v.
Derrick Townsend,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 88cr00254-03)
Thomas Lumbard, appointed by the court, argued the
cause and filed the briefs for appellant.
Neal K. Katyal, Attorney, United States Department of
Justice, argued the cause for appellee. On the brief were
Wilma A. Lewis, United States Attorney, and John R. Fisher
and Susan A. Nellor, Assistant United States Attorneys.
Before: Williams, Sentelle and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Appellant Derrick Townsend was
convicted on numerous drug- and gun-related counts in 1988,
including two counts of using a firearm during a drug traf-
ficking offense, 18 U.S.C. s 924(c). He received a sentence
which included a 450-month term of imprisonment. After a
motion by the government under Fed. R. Crim. P. 35(b), the
sentencing court departed downward significantly, resulting
in a total term of imprisonment of 240 months, of which 60
months were allocated to each of two s 924(c) counts, and 120
months were allocated to the other charges. Following the
Supreme Court's decision in Bailey v. United States, 516 U.S.
137 (1995), the government stipulated that Townsend's
s 924(c) convictions should be vacated, and that he should be
resentenced on the remaining counts. The district court
resentenced Townsend in 1998, again imposing a total term of
imprisonment of 240 months. Townsend appeals from this
resentencing, arguing that the court lacked authority to reim-
pose the same total term of imprisonment in light of the fact
that his convictions on the s 924(c) counts were vacated, and
that doing so violated the Double Jeopardy Clause of the
Fifth Amendment. We conclude that because the total sen-
tence Townsend originally received was properly considered a
single "package," by challenging his s 924(c) conviction,
Townsend reopened his entire sentence, and that the sen-
tence imposed on the remaining counts was lawful. Town-
send further argues that the 1998 resentencing did not com-
ply with Fed. R. Crim. P. 32 because he did not timely receive
the probation office's memorandum and because he lacked
notice of the court's sentencing theory, and that the court
erred in reimposing a fine which appellant claims had been
previously vacated. We conclude that the first and third
arguments are not properly before us, and that the second is
without merit.
I. Background
A 1988 indictment charged Derrick Townsend with conspir-
acy to distribute cocaine and cocaine base, 21 U.S.C. s 846;
conspiracy to distribute marijuana, 21 U.S.C. s 846; conspir-
acy to carry and use firearms during a drug trafficking
offense, 18 U.S.C. s 371; possession with intent to distribute
cocaine base, 21 U.S.C. s 841(a); two counts of possession
with intent to distribute marijuana, 21 U.S.C. s 841(a); pos-
session with intent to distribute cocaine, 21 U.S.C. s 841(a);
and two counts of using a firearm during a drug trafficking
offense, 18 U.S.C. s 924(c). Townsend was convicted on all
counts in 1988 and sentenced in 1989. He received concur-
rent sentences on the drug and conspiracy charges, the
longest of which was 330 months. He also received two 60-
month terms, consecutive to the other counts and to each
other, on the s 924(c) charges, for a total term of imprison-
ment of 450 months. In addition, he received a five-year
term of supervised release, and fines totaling $600,000. We
affirmed both the conviction and the district court's denial of
a new trial. United States v. Lafayette, No. 89-3023, 1990
WL 18648 (D.C. Cir. Feb. 22, 1990); United States v. Lafay-
ette, 983 F.2d 1102 (D.C. Cir. 1993).
Before their arrest in this case, Townsend and codefendant
Lewis had provided information to authorities in New York
about a drug operation and related homicides. After their
convictions here, Townsend and Lewis entered into agree-
ments for cooperation and testimony with the U.S. Attorney
for the Eastern District of New York. The agreements
called for the U.S. Attorney to move to reduce the sentences
previously imposed in this case, as permitted by Fed. R.
Crim. P. 35(b). On January 24, 1990, the Government filed a
motion for reduction of sentence. At a status hearing on
February 28, 1991, the district judge stated on the record
that he intended to grant the government's motions to reduce
sentence. He further stated that he intended to reduce
Lewis to the twenty-year range, and Townsend to the twenty-
five-year range, and that he needed to "work out the formula"
to accomplish those reductions. He also noted, at the urging
of counsel, that he would reconsider the amount of the fines,
but he did not rule on the motion.
Finally, almost three years later, on January 10, 1994,
Townsend's counsel filed a motion asking for a hearing on the
sentence reduction. The district court held no hearing, but
on May 26, 1994 issued an "Order Modifying Sentence" for
both Townsend and codefendant Lewis. The order provided
"that the judgment entered on January 27, 1989, be and it is
hereby vacated." It went on to order identical 240-month
sentences for Lewis and Townsend, consisting of consecutive
terms of 60 months on each of the two s 924(c) counts; and
concurrent sentences on the other counts, with the longest
being 120 months. The order, like the original order, also
provided for five years supervised release. It did not men-
tion any fines. Although the order indicated that the at-
tached statement of reasons should be made part of the
record, no statement of reasons was ever filed. Neither
party appealed the 1994 order. By order of October 23, 1995,
the court, citing confusion as to whether the originally-
imposed fines still applied after the 1994 order, ordered that
the original fine was still operative. The 1995 order was
denominated "Clarification of Order Modifying Sentence" and
was not appealed by either party.
Meanwhile, in 1995, Townsend filed a motion pursuant to 28
U.S.C. s 2255, arguing, inter alia, that there was insufficient
evidence to support his s 924(c) convictions. On December 6,
1995, the Supreme Court issued its opinion in Bailey v.
United States, 516 U.S. 137 (1995), holding that conviction for
using a firearm under 18 U.S.C. s 924(c) requires proof of
active use of a firearm to facilitate the underlying offense. In
light of Bailey, the U.S. Attorney and Federal Defender filed
a joint motion stipulating that there was insufficient evidence
to support Townsend's convictions on the two s 924(c) counts.
The motion further stipulated that the appropriate relief was
to vacate the s 924(c) convictions and resentence appellant on
the remaining counts, with credit for the 113 months already
served. The motion also noted that a defendant who earns
good-time credits must serve 102 months of a 120-month
sentence.
On March 18, 1998, the Probation Office issued a ten-page
"Memorandum" regarding Townsend's resentencing. The
Memorandum described the sentencing history, including the
findings of the original presentence report and the 1994
downward departure. The Memorandum then presented a
revised calculation for the remaining counts under the 1997
Guidelines, incorporating a two-level enhancement for posses-
sion of a weapon under U.S.S.G. s 2D1.1(b)(1). This en-
hancement had not been applied in the original sentencing
proceeding, because the enhancement is unavailable where
there is a s 924(c) conviction. See U.S.S.G. s 2K2.4 (back-
ground). With this enhancement, the revised calculation for
the remaining counts yielded an offense level of 40 (as
compared to 38 in the original 1989 presentence report) and a
guideline imprisonment range of 360 months to life. The
1994 downward departure, although discussed in the sentenc-
ing history, was not incorporated in the calculations. On
March 27, 1998, defense counsel filed a "Memorandum Re-
garding Re-Sentencing." The Memorandum argued, inter
alia, that because Townsend had completed the 120-month
sentence originally allocated to the non-924(c) counts (taking
into account good time credits), imposing an additional sen-
tence on those counts would violate the Due Process Clause.
On March 30, 1998, the district court held a sentencing
hearing. The government argued that the defendant had no
expectation that his sentence would be only 120 months, that
vacating the s 924(c) convictions "unravels the whole pack-
age," and that "the Court is well within its latitude in just
simply imposing the 240 months on the remaining counts."
The court adopted this suggestion. The court stated that the
intention in 1994 was to reduce the sentence to 240 months,
and the sentence was only structured as 120 on the s 924(c)
charges and 120 on the other charges because there was a
required 60-month consecutive sentence on each of the
s 924(c) charges. Accordingly, the court found no bar to
imposing the entire 240-month sentence on the remaining
counts. The court also imposed five years of supervised
release, and fines totaling $500,000. Townsend appeals from
this 1998 resentencing order.
II. Townsend's Rule 32 Arguments
We first address Townsend's argument that his 1998 re-
sentencing did not comply with Fed. R. Crim. P. 32(b)(6).
The rule provides that "[n]ot less than 35 days before the
sentencing hearing--unless the defendant waives this mini-
mum period--the probation officer must furnish the presen-
tence report to the defendant, the defendant's counsel, and
the attorney for the Government." Fed. R. Crim. P.
32(b)(6)(A). Townsend claims that the requirements of Rule
32 were not satisfied in this case, and that we must therefore
vacate the sentence imposed and remand for a new resen-
tencing proceeding. In appellant's view, the probation of-
fice's "Memorandum" regarding resentencing was for all in-
tents and purposes a presentence report, and Rule 32 was
therefore applicable. Townsend argues that he did not him-
self see a copy of the probation office's resentencing memo-
randum until the day of resentencing, and that his attorney
did not receive the memorandum far enough in advance to
satisfy the requirements of Rule 32. Indeed, the memoran-
dum was not made available until twelve days before the
sentencing occurred.
Without deciding whether Rule 32's time requirements
were applicable to the memorandum at issue here, we con-
clude that even if Townsend's Rule 32 arguments would
otherwise have merit, those arguments have been waived. In
contrast to Townsend's present objections that he did not
have the time required by Rule 32 to peruse the probation
office's memorandum, he made no objection on this ground at
the sentencing hearing. Neither he nor his counsel informed
the court that they had had insufficient time to review the
memorandum. In fact, defense counsel had reviewed the
memorandum and had filed a memorandum in response. By
participating in the resentencing hearing without objection,
Townsend waived his right to raise Rule 32's time require-
ments on appeal. See United States v. Workman, 110 F.3d
915, 920 (2d Cir. 1997); United States v. Jones, 80 F.3d 436,
438 (10th Cir. 1996); United States v. Knorr, 942 F.2d 1217,
1221 (7th Cir. 1991); United States v. Turner, 898 F.2d 705,
713-14 (9th Cir. 1990). See also Fed. R. Crim. P. 32(b)(6)(A)
(explicitly making the requirement that the presentence re-
port be provided 35 days in advance of the hearing inapplica-
ble where "the defendant waives this minimum period").
Appellant further argues that Rule 32 was violated because
the possibility of reimposing the entire 240-month sentence
was introduced for the first time at the sentencing hearing
itself. Townsend claims that prior to that time the parties
anticipated that the court would simply impose the sentence
originally allocated to the remaining charges (120 months),
and that disagreement focused only on the propriety of
imposing an additional two-year "gun bump" under U.S.S.G.
s 2D1.1(b)(1). Thus, appellant urges, he had no notice re-
garding the theory of sentencing the court ultimately em-
braced. In appellant's view, such notice is required by the
Supreme Court's decision in Burns v. United States, 501 U.S.
129 (1991), which held that the then-in-force version of Rule
32 required that before a district court could depart upward
on a ground not identified as a ground for upward departure
either in the presentence report or in a prehearing submis-
sion by the government, the parties must be given reasonable
notice that such a ruling was contemplated. See also
U.S.S.G. s 6A1.2 n.1 (memorializing the holding of Burns).
The Court reasoned that such notice was necessary to mean-
ingfully satisfy Rule 32's requirement that counsel must have
the opportunity to comment on matters relating to the appro-
priate sentence. Fed. R. Crim. P. 32(c), formerly 32(a). The
Court concluded that it made "no sense to impute to Con-
gress an intent that a defendant have the right to comment
on the appropriateness of a sua sponte departure but not the
right to be notified that the court is contemplating such a
ruling." Burns, 501 U.S. at 135-36 (emphasis in original).
Although Burns itself dealt with the need for notice re-
garding potential upward departures, Townsend notes that
some lower courts have extended its reasoning to adjust-
ments, see United States v. Jackson, 32 F.3d 1101 (7th Cir.
1994); United States v. Brady, 928 F.2d 844 (9th Cir. 1991),
abrogated on other grounds, Nichols v. United States, 511
U.S. 738 (1994); but see United States v. Canada, 960 F.2d
263 (1st Cir. 1992) (holding that Burns' notice requirements
did not apply to adjustments, which are more predictable
than departures); United States v. Willis, 997 F.2d 407 (8th
Cir. 1993) (same), and he argues that Burns' reasoning
certainly applies to the introduction of a "brand-new theory of
sentencing" at the sentencing hearing. Appellant's Brief at
38. Appellant analogizes this case to United States v. Zapat-
ka, 44 F.3d 112 (2d Cir. 1994), in which the court concluded
that where the district judge utilized a different underlying
Guideline than that employed in the presentence report,
defendant was deprived of adequate notice regarding the
possibility of an adjustment available under the section em-
ployed by the court that was not available under the section
employed by the presentence report.
We need not determine the reach of Burns' notice require-
ments, as we are unpersuaded by Townsend's argument that
the method employed by the district court was a "brand-new
theory of sentencing." The calculations in the memorandum
from the probation office resulted in a sentencing range of
360 months to life. The memorandum did not indicate that
resentencing would be limited to consideration of the
s 2D1.1(b)(1) enhancement, or that the full amount of the
original downward departure would necessarily be applied.
Indeed, appellant himself appears not to have taken reimposi-
tion of the entire 1994 departure for granted-his "Memoran-
dum Regarding Re-Sentencing" contained a section entitled
"The Rule 35 Departure Based on Mr. Townsend's Substan-
tial Assistance To The Government's Prosecution of Delroy
'Uzi' Edwards Should Remain In Effect." Given this, we are
unsympathetic to Townsend's claim that in adopting the view
that the original 240-month sentence could be imposed, the
district court and prosecutor were employing a new sentenc-
ing theory. Accordingly, we reject Townsend's argument
that Burns might have any application here.
III. Townsend's Arguments Regarding the Fines
Appellant argues that it was impermissible for the court to
impose $500,000 in fines in 1998 because no fines were
specified in the 1994 resentencing order and the 1995 order
"clarifying" that the original fines were still in place was
improper. The court's treatment of Townsend's fines was
admittedly somewhat irregular. At the original sentencing
proceedings in 1989, fines totaling $600,000 were imposed.
After the government moved to reduce sentence, the court in
1991 noted that it would also reconsider the amount of the
fines. In 1994, when the court actually acted on the sentence
reduction in an "Order Modifying Sentence," it made no
mention of fines. However, more than a year later, the court
issued a "Clarification of Order Modifying Sentence," citing
confusion regarding whether Townsend's original fines were
still in force and indicating that they were.
Townsend argues that his fines were vacated by the 1994
order and could not be resuscitated by the 1995 order.
Townsend cites the language of the 1994 order, which provid-
ed "that the judgment entered on January 27, 1989, be and it
is hereby vacated." In Townsend's view, after the 1994 order
issued, there were no fines in place. Thus, he argues, it was
impermissible for the court to augment Townsend's punish-
ment the following year by "clarifying" that the fines were in
effect, since such a "correction" of the 1994 order was not
within the parameters established for correcting a sentence
under Fed. R. Crim. P. 35. The government, in contrast,
argues that the 1994 order was addressed only to modifying
the term of imprisonment and should not be read as vacating
the portion of the 1989 order regarding fines. Since the
government views the original fines as never having been
vacated, it treats the 1995 order as making no change at all to
Townsend's sentence, but simply clarifying the continued
applicability of the fines.
We do not address the parties' differences as to the propri-
ety of the 1995 "clarifying order," but instead conclude, as the
government urges with no response from appellant, that this
issue is not properly before us. To be sure, Townsend has
timely appealed from the 1998 order, which reimposed a
portion of the complained-of fines. However, Townsend's
attack on the fines imposed in 1998 is based entirely on
arguments regarding the impropriety of the 1995 order. If
Townsend believed that the district court acted improperly in
"clarifying" that the fines were still in effect in its 1995 order,
he could have appealed that order within the time provided
under Fed. R. App. P. 4. See Browder v. Director, Dep't of
Corrections of Illinois, 434 U.S. 257, 264 (1978) (time limits of
Rule 4 are "mandatory and jurisdictional"). Having failed to
timely appeal the 1995 order he now contests, Townsend may
not properly attack it by appealing the 1998 order. Cf.
United States v. Barragan-Mendoza, No. 97-30264, 1999 WL
221857 (9th Cir. Apr. 19, 1999) (reaching issue of whether
modification of sentence by district court was within court's
authority under Fed. R. Crim. P. 35, but only after first
determining that appeal was timely). See also United States
v. Kress, 944 F.2d 155, 161 (3d Cir. 1991) (where defendant
failed to appeal court's earlier order denying his Rule 35
motion regarding the interest rate on restitution owed, he
cannot relitigate the issue on appeal from denial of a later
motion); United States v. Mendes, 912 F.2d 434, 437-48 (10th
Cir. 1990) (where conviction and original sentence not appeal-
ed, defendant cannot appeal conviction by appealing later
resentencing); United States v. June, 503 F.2d 442, 443-45
(8th Cir. 1974) (though appeal timely as to denial of motion to
reduce sentence, the appeal amounted to untimely challenge
to conviction itself); Yates v. United States, 308 F.2d 737, 738
(10th Cir. 1962) (where conviction not appealed, defendant
may not later challenge it as void and illegal in appeal from
order revoking probation).
IV. Reimposition of the Full Term of Imprisonment
As noted above, Townsend's original term of imprisonment
totaled 450 months, consisting of 120 months on the two
s 924(c) counts and 330 months on the other counts. When
the court departed downward in 1994 in response to the
government's Rule 35(b) motion, the resulting term of impris-
onment totaled 240 months, of which 120 months were again
allocated to the s 924(c) charges, and 120 months were
allocated to the other counts. In 1998, after vacating the
s 924(c) convictions on Bailey grounds, the court resentenced
Townsend on the other counts, imposing a term of imprison-
ment of 240 months, equivalent to his total term prior to the
vacatur. Townsend argues that the court was without au-
thority to reimpose the full 240-month term of imprisonment
in 1998, and that doing so violated the Double Jeopardy
Clause, which may bar an increase in a sentence if the
defendant had a legitimate expectation of finality in the
previously-imposed sentence. United States v. Fogel, 829
F.2d 77, 87 (D.C. Cir. 1987); United States v. DiFrancesco,
449 U.S. 117, 139 (1980).
A. Review of the 1998 Term of Imprisonment
Before addressing the merits of Townsend's arguments, we
first consider the government's claim that Townsend is simply
challenging the amount of downward departure he received in
1998, which the government argues is unreviewable under 18
U.S.C. s 3742. That section provides in relevant part that a
defendant may appeal a sentence if the sentence
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of
the sentencing guidelines; or
(3) is greater than the sentence specified in the applica-
ble guideline range ...; or
(4) was imposed for an offense for which there is no
sentencing guideline and is plainly unreasonable.
18 U.S.C. s 3742(a). In the government's view, because
Townsend's 1998 sentence of 240 months on the non-924(c)
counts represents a downward departure from the 330
months originally imposed on those counts in 1989, Townsend
should have no right to complain that he is entitled to retain
the more generous departure imposed on those counts in
1994.
The government focuses on s 3742(a)(3), which provides
that a defendant may seek review of upward departures, but
does not provide for review of downward departures at the
defendant's behest. Certainly it is correct that where a
defendant simply disagrees with the district court's judgment
regarding the amount of downward departure which is war-
ranted, review is unavailable. See, e.g., United States v.
Hazel, 928 F.2d 420, 423 (D.C. Cir. 1991). However, that is
not Townsend's argument. Townsend is not simply disagree-
ing with the district court's view of what departure was
proper, but is arguing that the court lacked authority to
reconsider the departure it granted on those counts in 1994,
and that the sentence which resulted from so doing was in
violation of the Double Jeopardy Clause. Where, as here, a
defendant claims that his sentence "was imposed in violation
of law," the sentence is reviewable under s 3742(a)(1). The
fact that the specific illegality here claimed involves the
amount of downward departure he received does not render
s 3742 (a)(1) inapplicable. Cf. United States v. La Guardia,
902 F.2d 1010, 1012 (1st Cir. 1990). To conclude otherwise
would insulate from review the extent of a downward depar-
ture even if the resulting sentence was plainly unlawful or the
amount of departure was influenced by unlawful consider-
ations. See United States v. Burnett, 66 F.3d 137, 139 (7th
Cir. 1995). Therefore, we conclude that this issue is properly
before us.
B. Resentencing after Bailey Vacatur
We now turn to the substance of Townsend's challenge to
the reimposition of his full term of imprisonment after his
s 924(c) convictions were vacated. This is not the first time
we have encountered arguments regarding the proper scope
of resentencing after Bailey vacatur, although this case does
raise specific issues we have not previously addressed. In
United States v. Rhodes, 106 F.3d 429 (D.C. Cir. 1997)
("Rhodes I"), we vacated a s 924(c) conviction, and remanded
for possible resentencing on the remaining counts, "taking
into account the provisions of s 2D1.1(b)(1)." Id. at 433. We
observed that because U.S.S.G. s 2D1.1(b)(1) and 18 U.S.C.
s 924(c) are mutually exclusive, the otherwise mandatory
enhancement was unavailable so long as the s 924(c) convic-
tion stood. But we held that this did not entitle a defendant
to escape application of the s 2D1.1(b)(1) enhancement be-
cause of a s 924(c) conviction which was later vacated. We
held that 28 U.S.C. s 2106, which provides that an appellate
court may require "such further proceedings to be had as
may be just under the circumstances," established statutory
authority for this court to remand for resentencing on the
remaining counts. Furthermore, we found no merit in appel-
lant's arguments that resentencing on his remaining charges
would violate the Double Jeopardy and Due Process Clauses.
Given the interdependence of a s 924(c) conviction and the
s 2D1.1 enhancement, we noted that appellant had no legiti-
mate expectation of finality in his original sentence on the
remaining drug charges, and that by challenging his s 924(c)
charges, defendant brought his remaining sentences into
question. Id. at 432 n.3.
We addressed similar questions in United States v. Morris,
116 F.3d 501 (D.C. Cir. 1997), where the s 924(c) vacatur
arose not on direct appeal but, as here, in the s 2255 context.
There, the district court had vacated appellants' convictions
under s 924(c), and then increased the sentence on the
remaining terms by imposing the two-level s 2D1.1 enhance-
ment. This court affirmed, holding that s 2255 provided the
district court statutory authority for resentencing on the
remaining counts. We held that s 2255's grant of power to
" 'correct the sentence as may appear appropriate' ... neces-
sarily includes the power to apply the s 2D1.1(b)(1) enhance-
ment at the same time as it removes the hitherto blocking
s 924(c) conviction." Id. at 504. We also rejected defen-
dants' double jeopardy and due process arguments, noting as
in Rhodes I that because of the "interdependence and mutual
exclusivity" of the s 924(c) conviction and the s 2D1.1 en-
hancement, there was no reasonable expectation of finality of
the unchallenged sentences. Id. at 505.
C. The Sentencing Package Theory
Townsend seeks to distinguish Rhodes I and Morris on two
principal grounds. First, he emphasizes that those cases
considered only the propriety of imposing a s 2D1.1 enhance-
ment, while the district court's resentencing here was not so
limited. In particular, Townsend argues that even if s 2255
provides authority for a court to "correct" the remaining
sentence by imposing a s 2D1.1 enhancement, as we held in
Morris, it does not provide authority for broader resentenc-
ing on the remaining counts. Second, Townsend makes much
of the fact that taking into account good-time credits, he had,
by the time of the 1998 resentencing, "fully served" the 120-
month term of imprisonment which had previously been
allocated to the non-924(c) counts. In Townsend's view, the
fact that that sentence was fully served makes any resentenc-
ing, even the s 2D1.1 enhancement approved in Rhodes I and
Morris, a violation of the Double Jeopardy Clause.
Both of these arguments rest on the premise that the 120
months allocated to the non-924(c) charges represent a free-
standing sentence distinct from the sentence on the s 924(c)
counts. In this view, when the 120 months allocated to the
s 924(c) charges were vacated, s 2255 required the court to
begin with the 120 months previously allocated to the remain-
ing counts, and to justify any modification as a necessary
"correction" to that remaining term. In effect, Townsend
argues that the court must treat the previously-imposed
sentence as being composed of independent subunits, each of
which survives the destruction of the others except to the
extent that vacation of one component of the sentence ren-
ders a remaining component actually illegal.1 Similarly, his
argument that his "sentence" was fully served assumes that
the portion of his earlier sentence allocated to the remaining
counts remained an independent fixed entity even while he
sought to have other counts vacated.
We disagree with Townsend's premise that the terms of
imprisonment previously allocated to his non-924(c) counts
necessarily survived intact his challenge to the s 924(c)
counts. As other circuits have recognized, at least in some
instances, sentences on multiple counts may comprise a "sen-
tencing package," so that attacking the sentence on some
counts via s 2255 reopens the sentence on the other counts as
well. See United States v. Rodriguez, 112 F.3d 26 (1st Cir.
__________
1 In support of his narrow view of what constitutes a permissible
correction to a sentence, Townsend cites our decisions in United
States v. Fogel, 829 F.2d 77 (D.C. Cir. 1987), and Tatum v. United
States, 310 F.2d 854 (D.C. Cir. 1962). These cases are inapposite,
as they do not involve situations in which a defendant has voluntari-
ly placed his sentence at issue by challenging it via s 2255. Indeed,
in explaining why the sentence modification in Fogel was impermis-
sible, we explicitly noted that the modification was not predicated
by any challenge to the sentence by the defendant, who unlike
Townsend had "proceeded to serve the sentence as if it were final."
Fogel, 829 F.2d at 89.
1997); United States v. Mata, 133 F.3d 200 (2d Cir. 1998);
United States v. Davis, 112 F.3d 118 (3rd Cir. 1997); United
States v. Smith, 115 F.3d 241 (4th Cir. 1997); United States v.
Rodriguez, 114 F.3d 46, 47-48 (5th Cir. 1997); Pasquarille v.
United States, 130 F.3d 1220 (6th Cir. 1997); United States v.
Smith, 103 F.3d 531 (7th Cir. 1996); Gardiner v. United
States, 114 F.3d 734 (8th Cir. 1997); United States v.
McClain, 133 F.3d 1191 (9th Cir. 1998); United States v.
Easterling, 157 F.3d 1220 (10th Cir. 1998); United States v.
Watkins, 147 F.3d 1294 (11th Cir. 1998). The sentencing
package doctrine recognizes that " 'when a defendant is found
guilty on a multicount indictment, there is a strong likelihood
that the district court will craft a disposition in which the
sentences on the various counts form part of an overall
plan,' " and that if some counts are vacated, " 'the judge
should be free to review the efficacy of what remains in light
of the original plan.' " Davis, 112 F.3d at 122 (quoting
United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.
1989)). "Under the sentencing package concept, when a
defendant raises a sentencing issue he attacks the bottom
line." Smith, 103 F.3d at 534.
Sentences which include s 924(c) counts are particularly
well suited to be treated as a package. The counts in such
sentences are inherently interdependent, since "without the
drug conviction, there can be no s 924(c)(1) conviction."
Easterling, 157 F.3d at 1223. In addition, the fact that
s 924(c) carries a mandatory sentence may influence the
sentence imposed on other counts. See Davis, 112 F.3d at
123 (" '[W]here a sentencing judge imposed a multicount
sentence aware that a mandatory consecutive sentence is to
be tacked on to it and the mandatory sentence is later
stricken, the judge is entitled to reconsider the sentence
imposed on the remaining counts.' ") (quoting Gordils v.
United States, Nos. 89CR0395 & 95CIV8034, 1996 WL
614139, at *7 (S.D.N.Y. 1996)).
Our decisions in Rhodes I and Morris implicitly acknowl-
edged the concept of a sentencing package, at least to a
degree, in that they allowed modification of the sentence
previously imposed on counts other than those specifically
contested by the defendant. However, we focused there on
the mutual exclusivity of s 924(c) and the s 2D1.1 enhance-
ment, and did not directly address the propriety of other
types of resentencing on the remaining counts. Other cir-
cuits have approved resentencing not limited to application of
the two-level enhancement. For example, in United States v.
Watkins, 147 F.3d 1294 (11th Cir. 1998), imposing a
s 2D1.1(b)(1) enhancement at resentencing would have had
no effect on the sentence because the defendant was a career
offender. Nonetheless, the Eleventh Circuit approved the
district court's recalculation of other aspects of the sentence,
including the appropriate reduction for the defendant's sub-
stantial assistance. See id. at 1295-96. The court noted that
"the availability of the U.S.S.G. s 2D1.1(b)(1) enhancement is
not necessary to the court's jurisdiction to resentence on
unchallenged counts." Id. at 1297. Similarly, the Seventh
Circuit approved the district court's resentencing after
s 924(c) vacatur where the judge not only imposed the
s 2D1.1 enhancement, but recalculated the sentence on the
remaining counts based on a higher base offense level than
used in the original sentence after concluding that there was
an error in the original sentencing. Smith, 103 F.3d at 535.
Several courts considering resentencing after s 924(c) vaca-
tur have reopened the sentences on the remaining counts and
required consideration of not only changes which would in-
crease the remaining sentence, but of the prisoner's new
arguments for decreases in his sentence as well. See Easter-
ling, 157 F.3d at 1225 (on resentencing, district court re-
quired to consider whether defendant should receive three-
level downward departure for acceptance of responsibility
available under current guidelines rather than two-level de-
parture he originally received); United States v. Core, 125
F.3d 74 (2d Cir. 1997) (holding that resentencing should
consider all sentencing arguments and remanding for court to
consider defendant's argument for downward departure
based on post-conviction rehabilitation); Reyes v. United
States, 944 F. Supp. 260 (S.D.N.Y. 1996) (resentencing is de
novo and defendant may argue for downward departures).
Indeed, while we focused on the possibility of a s 2D1.1(b)(1)
enhancement when we remanded for resentencing in Rhodes
I, we later held that the district court was also required to
consider on remand defendant's request for a possible down-
ward departure based on his post-conviction rehabilitation.
United States v. Rhodes, 145 F.3d 1375 (D.C. Cir. 1998)
("Rhodes II").
D. Treatment of the 1994 Sentence as a Package
In conducting its 1998 resentencing, the district court
explicitly relied on a "sentencing package" theory, noting that
the intention in allowing the downward departure in 1994 was
to achieve an overall sentence of 240 months rather than
particular sentences on the component counts. The record
supports the proposition that this was the court's original
intention. In 1991, the judge, in response to the govern-
ment's motion for reduction of sentence, noted on the record
that he intended to grant the motion, but needed to "work out
the formula" to accomplish the overall term of imprisonment
desired. The fact that the court in 1991 expressed an inten-
tion of figuring out a formula yielding 25 years for Townsend,
but ultimately chose a formula yielding 20 years, does not
affect our analysis. The interpendence of the departures
granted on the various counts is further illustrated by the
court's observation in 1991 that "there were nine counts, and
they all have to be coordinated." Although this remark was
made in discussing the sentence of codefendant Lewis, not
Townsend himself, the remark is equally applicable to Town-
send's sentence, since he and Lewis originally received identi-
cal sentences on identical counts.
In addition, a sentencing package theory is particularly
appropriate given that the 1994 sentence was the result of a
downward departure. Indeed, the fact that the existing
sentence was the result of a downward departure makes it
difficult to ascertain what exactly the district court would
have done had it wanted only to "correct" the sentence by
imposing a s 2D1.1(b)(1) adjustment. Townsend argues that
the proper way of imposing a s 2D1.1(b)(1) adjustment on the
remaining counts would be to "reason backward," finding an
offense level which corresponds to the 120-month sentence
allocated to the non-924(c) counts after the 1994 departure,
and then to apply a two-level adjustment. Unfortunately,
this backward reasoning does not lead to a unique offense
level, since a 120-month sentence falls within the sentencing
range for more than one offense level. Below, appellant
indicated that "the offense level that most closely approxi-
mates" the 120 months imposed on his remaining counts in
1994 is level 30, because that level provides for a sentence of
121 months at the bottom of the range. On appeal, he argues
that the proper level is 28, which leads to a range of 97-121
months, or 29, with a range of 108-135 months. Neither the
probation office's Memorandum nor the court adopted this
backward-reasoning strategy, but instead recalculated Town-
send's offense level under the Guidelines, leaving any down-
ward departure to be imposed on the resulting sentence.
This method resulted in an offense level of 38, or 40 if the
s 2D1.1 enhancement were applied.
We are not persuaded that resentencing after a downward
departure must proceed by the backward reasoning appellant
would require. Indeed, we agree with the Eleventh Circuit
that "where the district court is sentencing outside the guide-
lines range, it is particularly important that the district court
have discretion to reevaluate the entire sentencing package."
Watkins, 147 F.3d at 1297. The amount of downward depar-
ture allowed by a sentencing judge is inevitably affected by
the total sentence imposed, and the departure allowed on a
given count will naturally depend on the departure allowed on
other counts. Requiring a sentencing judge to retain the full
downward departure originally allowed on a given count even
when convictions on other counts are vacated could well make
judges hesitant to give generous downward departures in the
first instance. This is particularly the case here, where the
judge apparently believed that all of the downward departure
had to be applied to the non-924(c) counts to maintain the
five-year statutory minimum on each of the s 924(c) counts.
Appellant argues that in fact the judge could have departed
below the statutory minimum on the s 924(c) counts, given
the government's Rule 35 motion. However, that would not
change the fact that the departure actually imposed on the
non-924(c) counts was chosen in light of the term imposed on
the s 924(c) counts.
E. Townsend's Constitutional Arguments
Our conclusion that the district court properly treated the
1994 sentence as a sentencing package necessarily under-
mines Townsend's argument that because his term of impris-
onment on the remaining counts was fully served, resentenc-
ing on those counts violated the Double Jeopardy Clause of
the Fifth Amendment. Citing Ex parte Lange, 85 U.S. (18
Wall.) 163 (1873), and In re Bradley, 318 U.S. 50 (1943),
Townsend begins with the premise that a defendant who has
satisfied the sentence imposed for an offense may not be
resentenced for that offense. However, because the 1994
sentence was properly viewed as a package, Townsend had
not satisfied his sentence on the remaining counts in any
meaningful sense. His "sentences were, in essence, 'one
unified term of imprisonment,' " Easterling, 157 F.3d at 1224
(quoting Smith, 103 F.3d at 355). Thus we join the other
circuits which have addressed this question in concluding that
even where the term originally allocated to the remaining
counts of a package has been served, a defendant can have no
legitimate expectation of finality regarding the sentence pre-
viously allocated to certain counts while simultaneously chal-
lenging his sentence on other counts of the package. See
Smith, 115 F.3d at 246; United States v. Benbrook, 119 F.3d
338, 340-41 (5th Cir. 1997); Pasquarille, 130 F.3d at 1222;
Smith, 103 F.3d at 535; United States v. Alton, 120 F.3d 114,
115-16 (8th Cir. 1997); McClain, 133 F.3d at 1194; Easter-
ling, 157 F.3d at 1223-24.2
Townsend framed his arguments on appeal almost exclu-
sively in terms of the Double Jeopardy Clause, but to the
__________
2 We note that even leaving the "package" concept aside, as of the
time of his resentencing Townsend had not yet served the entire
sentence he would have received with the gun bump alone. At oral
argument, defendant conceded that even using his own guidelines
calculation, as a result of the gun bump he still would be imprisoned
until March 15, 1999--a month after oral argument, but a year after
the resentencing at issue here.
extent that he relies on the Due Process Clause, such reliance
is also unavailing. Because Townsend could not expect finali-
ty of his sentence on some counts even while he challenged
others, resentencing was not fundamentally unfair. See Pas-
quarille, 130 F.3d at 1223; Woodhouse v. United States, 934
F. Supp. 1008 (C.D.Ill.1996), aff'd, 109 F.3d 347 (7th Cir.
1997). At oral argument, Townsend suggested a due process
argument not raised below or meaningfully discussed in his
briefs--that the increase in the sentence on his non-924(c)
counts would give rise to a presumption of vindictiveness.
See North Carolina v. Pearce, 395 U.S. 711 (1969). However,
even assuming appellant has properly raised this argument,
given that the existing sentence was properly viewed as a
package, the fact that the sentence allocated to certain counts
increased gives rise to no presumption of vindictiveness. For
sentences within a package, Pearce analysis is conducted "in
the aggregate rather than count by count." United States v.
Sullivan, 967 F.2d 370, 374 (10th Cir. 1992). As we noted in
Morris, there is no indication of vindictiveness in resentenc-
ing a defendant to "exactly the sentence that the defendant
would have received but for the erroneous application of
s 924(c)." Morris, 116 F.3d at 506. See also Mata, 133 F.3d
at 202.
We need not determine today the full range of cases in
which a sentence on multiple counts may properly be treated
as a package. In particular, we do not address whether such
treatment would be appropriate where there was no indica-
tion in the record at the time of the earlier sentencing that a
package was intended, or where there were indications to the
contrary. Nor do we address whether a sentence could
properly be treated as a package where the distinct counts
involved conduct more tenuously related than the drug and
weapons charges at issue here. Cf. Rodriguez, 112 F.3d at
30-31 (approving sentencing package concept for situations
where Guidelines "contemplate an interdependent relation-
ship"). We hold only that in this case, where the vacated and
remaining counts are closely related and the judge indicated
an intention to arrive at a "formula" for reaching the overall
sentence desired after the downward departure in 1994, treat-
ing the sentence as a unitary package is appropriate.
For the reasons stated above, the decision of the district
court is
Affirmed.