[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
2/18/03
No. 97-2224
THOMAS K. KAHN
CLERK
D. C. Docket No. 93-CR-04046-01
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERETT DALE WATKINS, a.k.a. Dale Watkins,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Florida
(July 28, 1998)
Before COX, DUBINA and BLACK, Circuit Judges.
DUBINA, Circuit Judge:
I. BACKGROUND
Defendant/Appellant, Everett Dale Watkins (“Watkins”), was indicted and charged
in a three count indictment. Count I charged conspiracy to possess marijuana with intent
to distribute, in violation of 21 U.S.C. § 841(a), 841(b)(1)(B)(vii), and § 846. Count II
charged possession of three firearms as a three-time felon, in violation of 18 U.S.C. § §
922(g) and 924(e). Count III charged using and carrying firearms during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Watkins entered into a
plea agreement with the government in which he pled guilty to all three counts of the
indictment.
When Watkins was sentenced, his base offense level for the drug offense in Count
I was 26 with a criminal history category of IV. However, Watkins’s base offense level
on Count II, the § 924(e) offense, was 37, with a criminal history category of VI, due to
his status as a career offender pursuant to United States Sentencing Guidelines § 4B1.1
(“U.S.S.G.” or “guidelines”). After a three-point reduction for acceptance of
responsibility, Watkins’s guideline offense range for Counts I and II was 262 to 327
months, to be followed by a mandatory consecutive sentence of 60 months on the §
924(c) offense in Count III. The government filed a substantial assistance certification
pursuant to U.S.S.G. § 5K1.1 on Watkins’s behalf. This effectively placed Watkins’s
sentence outside the guideline range and gave the district court discretion to sentence
Watkins to an appropriate sentence. Thus, the district court crafted a package sentence
totaling 132 months as follows: concurrent terms of imprisonment of 72 months on
Counts I and II and a 60-month consecutive term of imprisonment on Count III.
2
Three years after his sentencing, Watkins filed a 28 U.S.C. § 2255 motion to
vacate the conviction and sentence for the § 924(c) offense, pursuant to the Supreme
Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995).1 The
government conceded that, in light of Bailey, Watkins’s conviction on Count III should
be vacated. The government requested that Watkins be resentenced with a two-level
enhancement for possession of a firearm in connection with a drug offense in Count I,
pursuant to U.S.S.G. § 2D1.1(b)(1).2 The probation officer prepared a second addendum
to the pre-sentence report (“PSI”) which concluded that a U.S.S.G. § 2D1.1(b)(1)
enhancement to Count I would not affect Watkins’s adjusted offense level. The original
calculation of an adjusted offense level of 34 was based upon the career offender
application to Count II. Therefore, a two-level upward adjustment to Count I pursuant to
§ 2D1.1(b)(1) would not affect Watkins’s guideline range. The government then filed an
addendum to Watkins’s U.S.S.G. § 5K1.1 motion, which detailed additional cooperation
provided by Watkins to law enforcement personnel.
At resentencing, the district court concluded that it had the authority to resentence
Watkins on each of Counts I and II to a term of imprisonment not to exceed 132 months,
which was the aggregate sentence previously imposed on all three counts. After
1
In Bailey, the Supreme Court held that 18 U.S.C. § 924(c) requires evidence
sufficient to show active employment of a firearm by a defendant during and in relation to
a predicate offense. 516 U.S. at 143, 116 S.Ct. at 505.
2
U.S.S.G. § 2D1.1(b)(1) provides that in offenses involving drugs, the base
offense level is increased by 2 levels if a dangerous weapon was possessed.
3
considering the addendum to the § 5K1.1 memorandum, the district court imposed
concurrent terms of imprisonment of 96 months on Counts I and II. This resulted in a 24-
month increase in the initial sentence imposed upon Counts I and II alone, but was 36
months lower than Watkins’s prior aggregate sentence.
II. ISSUES
1. Whether the district court had jurisdiction to resentence Watkins on Counts I
and II, when only Count III was challenged in Watkins’s 28 U.S.C. § 2255 motion.
2. Whether the resentencing violated Watkins’s double jeopardy rights.
3. Whether the resentencing violated Watkins’s due process rights.
III. STANDARD OF REVIEW
The issues of whether the district court had jurisdiction to resentence Watkins and
whether the resentencing violated Watkins’s double jeopardy and due process rights
involve questions of law and are subject to de novo review. United States v. Smith, 115
F.3d 241, 244 (4th Cir.), cert. denied, 118 S.Ct. 315 (1997). See also United States v.
Garrett, 3 F.3d 390, 390 (11th Cir. 1993) (“Questions of law are reviewed de novo.”).
IV. DISCUSSION
This appeal presents an interesting twist on an already decided issue in our circuit.
In United States v. Mixon, 115 F.3d 900 (11th Cir. 1997), we joined a number of other
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circuits in concluding that a district court has jurisdiction, after vacating an 18 U.S.C. §
924(c) conviction on a Bailey challenge raised in a 28 U.S.C. § 2255 habeas petition, to
resentence a defendant on the remaining unchallenged counts.3 The Mixon case affirmed
the district court’s application of the U.S.S.G. § 2D1.1(b)(1) enhancement on
unchallenged counts following a successful § 2255 motion vacating the 18 U.S.C. §
924(c) conviction. We followed several circuit cases which held that either statutory
authority or the sentencing package doctrine permitted resentencing on unchallenged
counts following vacatur of a § 924(c) conviction. 115 F.3d at 903. Thus, we held that
based on the language of § 2255 and the interdependence of the multiple counts for
sentencing purposes, a district court could adjust a defendant’s sentence on the
unchallenged, but related, drug counts. Id.
3
See e.g. United States v. Handa, 122 F.3d 690, 691-92 (9th Cir. 1997), cert.
denied, 118 S.Ct. 869 (1998); United States v. Mendoza, 118 F.3d 707 (10th Cir.), cert.
denied, 118 S.Ct. 393 (1997); United States v. Morris, 116 F.3d 501 (D.C. Cir.), cert.
denied, 118 S.Ct. 431 (1997); United States v. Smith, 115 F.3d 241 (4th Cir.), cert. denied,
118 S.Ct. 315 (1997); Gardiner v. United States, 114 F.3d 734, 735-36 (8th Cir.), cert.
denied, Guitierrez-Silva v. U.S., 118 S.Ct. 318 (1997)(multi-count sentence is a
“package,” and any attack on one count is an attack on the bottom line sentence); United
States v. Rodriguez, 114 F.3d 46, 48 n.6 (5th Cir. 1997); United States v. Harrison, 113
F.3d 135, 137 (8th Cir. 1997); United States v. Davis, 112 F.3d 118, 122-23 (3rd Cir.), cert.
denied, 118 S.Ct. 224 (1997); United States v. Rodriguez, 112 F.3d 26, 30-31 (1st Cir.),
cert. denied, 118 S.Ct. 237 (1997); United States v. Binford, 108 F.3d 723, 728-29 (7th
Cir.), cert. denied, 117 S.Ct. 2530 (1997); United States v. Hillary, 106 F.3d 1170, 1172-
73 (4th Cir. 1997); United States v. Smith, 103 F.3d 531, 533-35 (7th Cir. 1996), cert.
denied, 117 S.Ct. 1861 (1997); United States v. Milledge, 109 F.3d 312, 315 (6th Cir.
1997); United States v. Gordils, 117 F.3d 99, 102-04 (2d Cir.), cert. denied, 118 S.Ct. 430
(1997).
5
The twist in the present case is that Watkins, unlike the defendants in Mixon and
the other circuit cases, is an armed career criminal. Thus, Watkins’s career offender
status trumps the usual offense level calculations so that Watkins’ offense level is not
increased by application of the U.S.S.G. § 2D1.1(b)(1) enhancement. Therefore, the
guidelines range on Counts I and II are the same as they were at the original sentencing.
In Mixon, the availability of the § 2D1.1(b)(1) enhancement changed the guideline range,
enabling the court to increase the sentence on the unchallenged counts. The questions
raised by this appeal are whether the availability of the § 2D1.1(b)(1) enhancement is an
integral component of the court’s jurisdiction to resentence on unchallenged counts
following a § 2255 proceeding and whether the absence of enhancement changes double
jeopardy or due process considerations. We answer both questions in the negative.
A. Jurisdiction
Relying on United States v. Rosen, 764 F.2d 763, 766 (11th Cir. 1985)4, Watkins
argues that the district court did not have jurisdiction to resentence him on Counts I and II
because only Count III was the subject of his habeas petition. In Rosen, a case that arose
before the guidelines were enacted, we held that following a successful collateral attack,
only the sentence on the specific challenged count is before the district court because the
district court only has power over the challenged counts. Id. By contrast, in cases subject
4
Watkins also relies on Beal v. United States, 924 F.Supp. 913, 917 (D.Minn.
1996), but his reliance is misplaced because that case was reversed and remanded by the
Eighth Circuit in Gardiner v. United States, 114 F.3d 734, 735-36 (8th Cir. 1997).
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to the guidelines, sentences imposed for drug and firearms offenses are interdependent.
The guidelines contemplate the interdependence of a § 924(c) conviction and the
underlying offense. United States v. Davis, 112 F.3d 118, 121 (3rd Cir. 1997). Rosen did
not contemplate such interdependence and, therefore, is distinguishable.
In this case, the district court viewed Watkins’s sentence as a “package” and took
into account “the nature of the crime, certain characteristics of the criminal, and the
interdependence of the individual counts.” United States v. Binford, 108 F.3d 723, 728
(7th Cir. 1997). The district court had jurisdiction to resentence Watkins on all counts
when Count III was vacated because the sentencing package became “unbundled,” and
the district court had to recalculate and reconsider Watkins’s sentence for it to comport
with the district court’s original intentions at sentencing. Id. at 728-29. In rare cases such
as this one, where the district court is sentencing outside the guidelines range, it is
particularly important that the district court have discretion to reevaluate the entire
sentencing package.
At Watkins’s resentencing, the district court acknowledged that it could not
sentence Watkins to a higher sentence than previously imposed. Thus, the district court
began at 132 months again, and then considered the government’s amended § 5K1.1
motion. The district court reflected on its original sentence and Watkins’s offense
conduct and arrived at a 96-month concurrent sentence for Counts I and II.
The interdependence of the drug and firearms offenses and the sentencing package
doctrine provided the district court with the jurisdiction to resentence Watkins following
7
his successful collateral attack on the § 924(c) offense. Thus, the availability of the
U.S.S.G. § 2D1.1(b)(1) enhancement is not necessary to the court’s jurisdiction to
resentence on unchallenged counts. Once jurisdiction is established, the district court has
the discretion to consider the nature and circumstances of the offense conduct and to
fashion an appropriate sentence that comports with the law. In this case, Watkins’s status
as a career offender caused his base offense level for the drug offense in Count I to be
merged with his lengthier base offense level for the firearms charged in Count II. Also,
during both his initial sentencing and at his resentencing, Watkins received substantial
downward departures pursuant to U.S.S.G. § 5K1.1. The district court considered the
proper legal factors and imposed a sentence that it found appropriate. Moreover, the
district court correctly acknowledged that the sentencing package had become
“unbundled” and, accordingly, properly adjusted Watkins’s sentence. Because the district
court was within its jurisdiction to resentence Watkins and because the sentence imposed
comported with the law, we affirm the sentence.
B. Double Jeopardy Claim
Watkins’s double jeopardy challenge is foreclosed by Mixon, where we held that
resentencing does not violate the double jeopardy clause. Additionally, because Watkins
challenged the aggregate sentence, he can have no legitimate expectation of finality in
any discrete portion of the sentence. See generally United States v. DiFrancesco, 449
U.S. 117, 133, 101 S.Ct. 426, 435 (1980) (“the pronouncement of sentence has never
carried the finality that attaches to an acquittal.”). See also Monge v. California, 66 LW
8
4629 (June 26, 1998)(reinforcing DiFrancesco proposition). A defendant can have no
legitimate expectation of finality in his original drug-trafficking sentence, as that sentence
was interdependent on the firearm sentence that he challenged in his § 2255 motion. See
Davis, 112 F.3d at 124. As the Gardiner court explained, “[w]hen a prisoner collaterally
attacks a portion of a judgment, he is reopening the entire judgment and cannot
selectively craft the entire manner in which the court corrects that judgment.” 114 F.3d at
736. Because Watkins’s challenge nullifies any expectation of finality in his sentence, we
see no double jeopardy violation. See United States v. McClain, 133 F.3d 1191 (9th Cir.
1998), petition for cert. filed May 27, 1998.
C. Due Process Claim
Watkins argues that the district court’s upward modification of his sentence on
Counts I and II violated his due process rights. We disagree because the district court
utilized the same 132-month sentence to begin its consideration in the resentencing. See
R. Vol. 4. The aggregate sentence of 132 months was not increased.5 Because of this,
Watkins was put in the same position as if a § 924(c) charge had not been included in the
indictment. See Harrison, 113 F.3d at 138.
5
We are mindful that a defendant’s due process rights may be violated “when a
sentence is enhanced after the defendant has served so much of his sentence that his
expectations as to its finality have crystallized and it would be fundamentally unfair to
defeat them.” United States v. Lundien 769 F.2d 981, 987 (4th Cir. 1985). It is an
extreme case where a later upward revision of a sentence is so unfair that it is inconsistent
with the fundamental notions of fairness found in the due process clause. Davis, 112 F.3d
at 123. This is not an extreme case.
9
Additionally, as stated previously, Watkins has no expectation of finality in his
sentence because he challenged the § 924(c) conviction and sentence, which was closely
linked with the underlying drug offense. Moreover, Watkins can have no reasonable
expectation of finality as to his sentence when he has not completed his term of
imprisonment. Davis, 112 F.3d at 124. We conclude there is no due process violation.
V. CONCLUSION
For the foregoing reasons, we affirm Watkins’s sentence.
AFFIRMED.
10