United States v. Rodriguez

United States Court of Appeals
For the First Circuit

No. 96-2150

UNITED STATES OF AMERICA,

Appellee,

v.

ISIDRO RODRIGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Lynch, Circuit Judge.

Bjorn Lange, Federal Defender Office, for appellant.

Jean B. Weld, Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, and Peter E. Papps,

Assistant United States Attorney, were on brief, for appellee.

April 30, 1997

LYNCH, Circuit Judge. This case raises an issue of
LYNCH, Circuit Judge.

significance in the administration of criminal justice, one

of first impression for this court. It concerns the power of

a district court to resentence on the counts of conviction

remaining after the sentence on another count has been

vacated on a petition under 28 U.S.C. 2255.

Isidro Rodriguez was originally convicted in 1993

on four cocaine trafficking counts, see 21 U.S.C. 841(a),

for which he received a sentence of sixty-three months, and

on one count of using or carrying a firearm during and in

relation to a drug trafficking crime, in violation of 18

U.S.C. 924(c), for which he received a mandatory,

consecutive sentence of sixty months. Those convictions were

affirmed on appeal. See United States v. Rodriguez, 29 F.3d

619 (1st Cir. 1994) (per curiam).

On December 6, 1995, the Supreme Court decided

Bailey v. United States, 116 S. Ct. 501 (1995). Bailey

clarified the definition of the term "use" in 18 U.S.C.

924(c), changing the law in this and many other circuits.

Id. Relying on Bailey, Rodriguez filed a pro se motion under

28 U.S.C. 2255, seeking to vacate his conviction on the

924(c) firearms count. The government conceded that

Rodriguez's conviction on that count could not stand after

Bailey.

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On March 1, 1996, the district court ordered that

Rodriguez's conviction and sentence on the 924(c) count be

vacated, thereby eliminating the mandatory, consecutive

five-year sentence. Rodriguez remains in the custody of the

Bureau of Prisons as he has not finished serving his sentence

for the drug trafficking counts.

The district court appointed counsel to represent

Rodriguez and directed the parties to address the issue of

whether Rodriguez could be resentenced on the drug counts.

The court also ordered a revised presentence report ("PSR").

After briefing and argument, the district court ruled that

Rodriguez's sentence on the firearms count was part of a

sentencing calculus based on the relationship between the

various counts. The court concluded that it had

jurisdiction, under 2255 and First Circuit precedent, to

resentence Rodriguez on the drug trafficking counts. The

district court accepted the factual conclusions and

Guidelines application of the revised PSR, including the

PSR's recommendation of a two-level increase for possession

of a dangerous weapon during a drug offense. This yielded a

total offense level of 28, and a corresponding sentencing

range of seventy-eight to ninety-seven months. The district

court resentenced Rodriguez to seventy-eight months on the

drug trafficking counts. That is less than his original

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total sentence on all counts of 123 months, but more than his

original sentence of sixty-three months for the drug counts.

Rodriguez argues that the district court simply

lacked jurisdiction to resentence him and, further, that

doing so violated his right not to be placed twice in

jeopardy for the same offense and his right to due process of

law.

Rodriguez's argument is complicated for him by the

fact that, under the Sentencing Guidelines, there was an

explicit interaction between the sentence he was originally

given on the drug trafficking counts and the sentence he

received on the firearms count. The Guidelines direct a

sentencing judge to increase the sentence for a drug

trafficking offense by two levels where the offense involves

the possession of a dangerous weapon, including a firearm.

See U.S.S.G. 2D1.1(b)(1). However, to avoid double

counting, the Guidelines do not permit such an enhancement of

the drug sentence if the defendant has also been convicted

under certain statutes, including 18 U.S.C. 924(c), which

provide a mandatory minimum penalty for weapons-related

conduct. U.S.S.G. 2K2.4 (comment. n. 2 & backg'd). For

example, if the jury had acquitted Rodriguez of the firearms

offense under 18 U.S.C. 924(c), but the judge had

nonetheless found, by a preponderance of the evidence, that

Rodriguez possessed a firearm during the drug crimes, the

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judge should have, under the Guidelines, increased the

sentence for the drug offenses.

The district court judge apparently thought that

this resentencing was similar to that hypothetical case and

so enhanced the sentence for the drug offenses. This is, of

course, an approach abundant with common sense. It also fits

with the notion that, where there are multiple convictions,

the various sentences form a package meant to work together

and if part of the package of convictions is undone, the

trial judge ought to be free to reconsider how all the pieces

should fit together, in order to do justice and to meet the

requirements of the Guidelines.

But such a common sense approach to the problem

must fairly meet Rodriguez's objections that Congress did not

grant jurisdiction to resentence and that such an approach,

writ broadly, poses far from hypothetical dangers to the

constitutional rights of a criminal defendant. Rodriguez's

assertion is that to increase a sentence as a consequence of

a defendant's successful challenge to one count of conviction

penalizes the exercise of the right to collaterally attack a

conviction. Such a sentencing enhancement deprives the

prisoner of his settled expectations about the length of his

sentence, and violates the rule, embedded in our

jurisprudence, that a defendant only be sentenced for the

crimes of which he is convicted.

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Rodriguez starts with an argument that federal

trial courts have only such jurisdiction as Congress has

granted and that there is no grant of jurisdiction to revise,

on collateral attack, a sentence that has already become

final. Rodriguez argues that Congress has expressly limited

a court's ability to modify an already imposed sentence to

the three situations outlined in 18 U.S.C. 3582(c). Two of

the circumstances described in that section are inapplicable

here, and so, he contends, the district court may only

resentence him to the extent "expressly permitted by statute

or by Rule 35 of the Federal Rules of Criminal Procedure."

18 U.S.C. 3582(c)(1)(B).

On direct appeal (in contrast to the 2255 review

here), this court has permitted resentencing for a drug

trafficking conviction where defendant's 924(c) conviction

was set aside, post-Bailey:

Since it is conceivable that our
disposition of the [firearms] count might
affect the sentencing calculus in regard
to the [drug trafficking] count, we honor
counsels' joint request and remand to the
district court for possible
reconsideration of the sentence
originally imposed on the drug
trafficking count.

United States v. Valle, 72 F.3d 210, 218 (1st Cir. 1995). At

least seven other circuits have similarly determined that,

when a conviction under 924(c) is reversed on appeal in

light of Bailey, it is appropriate to remand to the district

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court for resentencing on the remaining convictions. See

United States v. Jackson, 103 F.3d 561, 569 (7th Cir.

1996)(citing cases).

Rodriguez concedes that such resentencing on remand

after direct appeal may be appropriate because 28 U.S.C.

2106 permits the appellate court to "affirm, modify, vacate,

set aside or reverse any judgment . . . brought before it for

review" and to "remand the cause and . . . require such

further proceedings to be had as may be just under the

circumstances." 28 U.S.C. 2106. But that statutory

language is inapplicable here, Rodriguez argues, because the

drug trafficking convictions in this case have already become

final after appeal; thus, 2106's broad grant of remedial

power to the appellate court cannot be read to empower the

district court on a 2255 motion. Rodriguez further argues

that his 2255 motion only sought review of his 924(c)

sentence and convictions, and that his drug trafficking

sentence is therefore not properly "before" any court.

We agree with the basic tenet of Rodriguez's

argument: courts are not free to resentence at will; a

statute or Rule 35 must authorize such an exercise of

jurisdiction. See United States v. Fahm, 13 F.3d 447, 453

(1st Cir. 1994) (district court lacked inherent power to

"correct" a sentence other than as expressly permitted by

Rule 35).

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However, Rodriguez's argument fails because the

language of 28 U.S.C. 2255 expressly vests some power in

the district court:

If the court finds that the judgment was
rendered without jurisdiction, or that
the sentence imposed was not authorized
by law or otherwise open to collateral
attack, or that there has been such a
denial or infringement of the
constitutional rights of the prisoner as
to render the judgment vulnerable to
collateral attack, the court shall vacate
and set the judgment aside and shall
discharge the prisoner or resentence him
or grant a new trial or correct the

sentence as may appear appropriate.

28 U.S.C. 2255 (emphasis added).

This grant of power to "correct the sentence as may

appear appropriate" resolves the jurisdictional issue against

Rodriguez. In this, we agree with the Fourth Circuit's

decision in United States v. Hillary, 106 F.3d 1170, 1172

(4th Cir. 1997) and the Seventh Circuit's decision in United

States v. Binford, 108 F.3d 723, 728-29 (7th Cir. 1997).

This still leaves the question of when it is

"appropriate" to "correct the sentence." In United States v.

Smith, 103 F.3d 531 (7th Cir. 1996), the Seventh Circuit

ruled in favor of the exercise of jurisdiction to correct the

remaining drug trafficking sentence where a prisoner, on a

motion under 2255, succeeded in vacating his mandatory

consecutive five-year 924(c) sentence. The Seventh Circuit

found it "appropriate" to correct the sentence, because "[i]f

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a multicount sentence is a package . . . then severing part

of the total sentence usually will unbundle it." Id. at 534.

The Seventh Circuit further noted, and we agree,

that the question of the "appropriate" exercise of that

jurisdiction cannot turn entirely on older conceptions of

"sentencing packages" but must consider the effect of the

Sentencing Guidelines. See id. at 534-35. "The Sentencing

Reform Act of 1984 revolutionized the manner in which

district courts sentence persons convicted of federal

crimes." Burns v. United States, 501 U.S. 129, 132 (1991).

We also agree with the Seventh Circuit's conclusion that,

while the Guidelines have altered the idea of the sentencing

package, they have not eliminated the concept. Smith, 103

F.3d. at 534.

In a pre-Guidelines case, this court both adopted

the concept of the sentencing package and suggested some

limits to its applicability. In United States v. Pimienta-

Redondo, 874 F.2d 9 (1st Cir. 1989) (en banc), the defendants

received consecutive sentences for convictions on two counts

of drug trafficking. On appeal, this court ruled that the

two counts of conviction actually constituted a single

offense, reversed the defendants' convictions on one of the

counts, and remanded for resentencing on the second. Id. at

11-12. The district court then resentenced the defendants on

the remaining count to a term as long as the combined total

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of the prior, consecutive sentences on both counts. Id. at

12. Defendants again appealed. The en banc court rejected

defendants' double jeopardy and due process challenges to

the resentencing, holding that:

[a]fter an appellate court unwraps the
[sentencing] package and removes one or
more charges from its confines, the
sentencing judge, herself, is in the best
position to assess the effect of the
withdrawal and to redefine the package's
size and shape . . . .

Id. at 14. In light of the concurring opinion of then-Judge

Breyer and Judge Campbell, Pimienta-Redondo's "sentencing

package" holding should be confined to situations where the

same basic course of conduct underlies both the vacated count

and the count on which the conviction is affirmed, and that

basic conduct determines the sentence. Id. at 17 (Breyer,

J., concurring).

In this case, the Guidelines establish a similar

relationship of interdependence between the vacated count of

conviction, the affirmed count of conviction, and the new

sentence: Both Rodriguez's conviction under 924(c) and the

enhancement imposed in resentencing him turn on the presence

of a weapon during a drug trafficking offense. Rodriguez's

conviction for that basic course of conduct was affirmed.

The Guidelines require sentencing judges to consider "all

acts and omissions . . . that occurred during the commission

of the offense of conviction . . . ." U.S.S.G.

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1B1.3(a)(1). Thus, under both the Guidelines and our pre-

Guidelines precedent, Rodriguez's sentence may be considered

as a "sentencing package."

Rodriguez argues that, because the 924(c)

firearms sentence was consecutive, it is not part of the same

"sentencing package" as his drug trafficking sentence. He

relies on U.S.S.G. 5G1.2, which governs sentencing on

multiple counts of conviction, and provides:

(a) The sentence to be imposed on a count
for which the statute mandates a
consecutive sentence shall be determined
and imposed independently.

U.S.S.G. 5G1.2. That the firearms sentence had to be

calculated independently does not mean that the sentence on

the drug counts did not depend on the existence of that

sentence; to the contrary, the Guidelines specify such a

relationship. See U.S.S.G. 2K2.4, comment. (n.2 & backg'd).

Thus, we hold that, where the Guidelines contemplate an

interdependent relationship between the sentence for the

vacated conviction and the sentence for the remaining

convictions -- a sentencing package1 -- a district court may,

on a petition under 28 U.S.C. 2255, resentence on the

1. To the extent that the Seventh Circuit's opinions in
Smith and Binford can be read to permit resentencing whenever

there is a sentencing package, and to define a "sentencing
package" as "the bottom line, the total number of years (or
under the guidelines, months) which effectuates a sentencing
plan," Smith, 103 F.3d at 533, we part company and find it

unnecessary to state so broad a rule.

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remaining convictions.2 We leave to another day the question

of whether there is such authority when the Guidelines do not

contemplate such an interdependent sentencing package.3

Rodriguez's two constitutional claims fare no

better than does his jurisdictional claim. Because the

consideration of acquitted conduct in fashioning a sentence

does not, absent special circumstances, violate either the

Due Process or the Double Jeopardy Clause, see United States

v. Watts, 117 S. Ct. 633, 636-37 (1997), the fact that the

district court considered the conduct underlying the vacated

conviction in enhancing the sentence for the drug offense

does not in itself violate the Constitution. To the extent

that there are valid due process concerns about possible

vindictiveness on resentencing, the safeguards announced by

the Supreme Court in North Carolina v. Pearce, 395 U.S. 711

(1969), and applied by this court in Pimienta-Redondo, 874

F.2d at 12-14, adequately address this problem. See also

United States v. Twitty, 104 F.3d 1, 2 (1st Cir. 1997);

United States v. Clark, 84 F.3d 506 (1st Cir.) (outlining

contours of Pearce presumption of vindictiveness),

cert. denied, 117 S. Ct. 272 (1996). On the facts of this

2. There may be occasions where the authority to resentence
works in a defendant's favor. There may be occasions where
the trial judge believes the interrelationship requires a
reduction in the remaining sentence.

3. The Sentencing Commission may wish to address this topic.

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case, no claim of vindictiveness has been, or could be, made.

There is another theory that Rodriguez advances

under the Due Process Clause. Relying on Breest v. Helgemoe,

579 F.2d 95 (1st Cir. 1978), he argues that he was "a

substantial period of time" -- more than three years -- into

his sentence when he was resentenced, and that it is

"fundamentally unfair, and thus violative of due process for

a court to alter even an illegal sentence in a way which

frustrates a prisoner's expectations by postponing his . . .

release date far beyond that originally set." Id. at 101.

Here, Rodriguez's new release date is still more than four

years earlier than his original release date; the

psychological unfairness described in Breest is thus not an

issue here. We acknowledge that, on other facts, due process

concerns could be raised.4

4. We have said that there may be limits on the right to
correct an erroneous sentence in cases "with extreme facts:
a long delay, actual release of the defendant from custody
based on the shorter sentence, singling out of the defendant
for a belated increase apparently because of his commission
of another offense for which parole revocation would have
been available, and other troubling characteristics." United

States v. Goldman, 41 F.3d 785, 789 (1st Cir. 1994); see also

DeWitt v. Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993)(noting

that there is "no single touchstone" for determining if delay
in resentencing is inconsistent with the Due Process Clause
and listing considerations including the lapse of time, the
reasonableness of defendant's expectations, prejudice, and
diligence exercised by the state). Delay may, in future
cases, be less of an issue because of the strict time limits
that 28 U.S.C. 2255 now imposes on the filing of petitions.

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We think that, given the language of 2255

discussed earlier and the fact that Rodriguez is still in

custody, he could have no settled expectation of finality

with respect to a portion of his total sentence which, under

the Guidelines, is part of a sentencing package.

Accordingly, there is no violation of the Double Jeopardy

Clause here. This case does not involve a petitioner who had

already fully discharged his sentence and then was

resentenced, see United States v. Silvers, 90 F.3d 95, 101

(4th Cir. 1996), and we intimate nothing about the double

jeopardy consequences of such a situation.5 Cf. Hillary, 106

F.3d at 1173.

Affirmed.

5. This scenario is not farfetched. Sometimes a case takes
such time to wend its way through the court system that the
prisoner is released by the time it is resolved. And,
because convictions carry collateral consequences even after
incarceration has ended, appeals may be brought after release
in an effort to avoid those consequences. See Ball v. United

States, 470 U.S. 856, 864-65 (1985).

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