concurring:
I concur in the affirmance but see no need for any extended analysis or announcement of a new rule for resentencing on remand. The first appellate panel remanded for the ministerial resentencing on count two resulting from vacatur of the count one cónviction.* This was clear to the district court, it is clear to me and it should have been clear to defense counsel, whose failure to raise the meritorious merger argument at the first sentencing necessitated the remand. The scope of the mandate aside, defense counsel knew that the time for raising the fortuitous proximity issue was long past. She failed to argue the point at sentencing and on the first appeal. She could not reasonably request a third bite at that particular apple, .however tantalizing, after declining it twice.
The first panel’s resentencing discussion in its entirely takes one sentence of one paragraph, to wit:
Appellants contend that their convictions for violation of 21 U.S.C. § 841(a)(1), which proscribes possession with intent to distribute controlled substances, including cocaine base, should be vacated because that section describes a lesser-included offense of 21 U.S.C. § 860(a), which proscribes possession with intent to distribute a controlled substance within one thousand feet of a school. Appellants rely on United States v. Williams, 782 F.Supp. 7, 8-9 (D.D.C.1992), aff'd without opinion, 6 F.3d 829 (D.C.Cir.1993), in which the District Court concluded that section 841 offenses were, in fact, lesser included offenses of section 860(a) offenses. The government agrees with appellants' argument. Consequently, pursuant to the agreement of the parties, we will remand to the District Court for entry of an amended judgment and resentencing on Counts One and Two.
United States v. Whren, 53 F.3d 371, 376 (1995) (emphasis added). The remanding panel could have, more directly and more succinctly than it did, simply instructed the district court to vacate the conviction and sentence on count one and reimpose the sentence on count two. The fact that its language is less precise does not affect its plain meaning in my view.