IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-10539

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL RAMIREZ HERNANDEZ,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Texas

_________________________________________________________________ June 18, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:

Miguel Ramirez Hernandez appeals from his resentence by the

district court after vacatur of the count of his convictions for

using and carrying a firearm in connection with a drug transaction.

Hernandez argues that the district court had no aut hority, after

vacating the invalid part of hi s sentence, to increase the

remaining valid portion of the sentence.

I

Hernandez was found guilty of conspiracy to distribute and to

possess with the intent to distribute cocaine, possession with the

intent to distribute cocaine, aiding and abetting the distribution

of cocaine, and using and carrying a firearm during and in relation

to the possession offense. The district court sentenced Hernandez2

to 78 months imprisonment on each drug count, to run concurrently,

and to 60 months imprisonment on the firearms count, to run

consecutively to the drug sentences. This court affirmed the

convictions and the sentences. United States v. Mendez , No.

94-10108 (5th Cir. Mar. 29, 1995) (unpublished).

Hernandez later filed a petition under 28 U.S.C. § 2255 to

correct and reform the judgment of convictions. He contended that

his conviction for use of a gun in relation to a drug offense under

18 U.S.C. § 924(c)(1) was invalid under the Supreme Court’s recent

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

government conceded that under Bailey the evidence was insufficient

to support the conviction under § 924(c). The conviction was

therefore vacated and Hernandez was scheduled for resentencing.

On resentence, the government argued that the district court

should consider the applicability of Sentencing Guideline

§ 2D1.1(b)(1)--the subsection that in drug offenses imposes a

two-level increase in the offense level if the defendant possessed

a firearm or other dangerous weapon. The supplemental pre-sentence

r eport (“PSR”) also recommended consideration of this factor and

proposed the corresponding two-level increase. Hernandez objected,

asserting that the district court had no authority to increase the

sentence for the counts of conviction that had not been challenged

by the postconviction motion. Hernandez argued that the district

court could only eliminate the invalid five-year sentence and leave

the remainder of the original sentence intact.1 Although § 2D1.1(b)(1) is not explicitly phrased in mandatory

terms, the commentary to this section supports mandatory imposition

of the increase, noting that “[t]he adjustment should be applied if

the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1),

comment n.3 (emphasis added).

3 At resentencing, Hernandez further argued that the court would

violate the Double Jeopardy Clause by increasing the sentences on

the drug convi ctions. The district court overruled Hernandez’s

objections.

The app licable guideline range, with the inclusion of the

two-level increase, for the drug offenses was from 97 to 121 months

imprisonment. The district court sentenced Hernandez to 97-month

terms of i mprisonment on each of the three counts, to be served

concurrently. Hernandez appeals, asserting that the district court

lacked the authority to increase the unchalle nged drug offense

sentences and that the sentence violates the Double Jeopardy

Clause.

II

A

The Sentencing Guidelines require that a defendant’s criminal

offense level be increased by two levels if he possessed a

dangerous weapon (including a firearm) during the commission of a

drug offense. S ee U.S.S.G. § 2D 1.1(b)(1). 1 This increase,

h owever, is not to be applied when a defendant is also sentenced

under § 924(c) for using or carrying the same firearm in connection

with the drug offense. S ee United States v. Washington

, 44 F.3d4

1271, 1280 (5th Cir. 1995). The question before us is whether the

district court, on resentence after vacatur of the § 924(c)

conviction, may impose the two-level increase provided for in

§ 2D1.1(b)(1).

We recently addressed this same question in United States v.

Rodriguez

, No. 96-30878, slip op. 3384 (5th Cir. May 20, 1997).

Under Rodriguez

, a district court may properly consid er the

imposition of the two-level increas e under § 2D1.1(b)(1) on

resentence after vacatur of a § 924(c) conviction bec ause of

Bailey

. Id.

The facts in Rodriguez are essentially identical to the facts

befor e us today. Rodriguez pled guilty to two drug offenses and

was convicted of two firearm counts under § 924(c). After B ailey

,

Rodriguez petitioned for relief from his firearm convictions. The

district court granted the relief, but on resente nce imposed the

two-level increase under § 2D1.1(b)(1) that had not been applied at

the original sentencing phase because of the § 924(c) convictions.

The Rodriguez panel noted that the conduct punished by both §

924(c) and § 2D1.1(b)(1) was the use of a firearm during a drug

offense. I d. at 3385. The panel further noted that under the

sentencing guidelines the conduct could not be punished under both

sections and concluded t hat, after the sentences under § 924(c)

were vacated, the district court on resentence properly considered

the increased offense level under § 2D1.1(b)(1). Id. at 3385-86.2 The Henry decision consisted of seven judges voting to vacate

and remand, with two of those seven specially concurring, and six

judges dissenting.

5 The Rodriguez Court also determined that th e application of

§ 2D1.1(b)(1) on resentence d oes not violate the Double Jeopardy

Clause b ecause of the defendant’s lack of “a legitimate

‘expectation of finality in [his] original sentence.’” I d. at 3386

(quoting United States v. DiFrancesco

, 101 S.Ct. 426, 438 (1980)).

We therefore hold that, in the light of the decision in

Rodriguez

, the district court did not err by increasing Hernandez’s

sentences on the drug counts after vacatur of his conviction under

§ 924(c).

B

We add on ly that our holding today is not in conflict with

this court’s en banc decision in United States v. Henry

. 709 F.2d

298 (1983). A careful reading of H enry r eveals that the opinion

for the majority carried the majority only because of two special

concurrences filed in the case. 2 Both special concurrences noted

that the sentences involved in Henry were separable and did not

present a case of “intertwined illegality.” Id. at 317 (Reavley,

J., specially concurring), 318 (Jolly, J., specially concurring).

This case presents just such a case of intertwined illegality

in sentencing: The sentences on each respective count are

interdependent. As we have noted earlier, the two-level increase

in his criminal offense level legally could not have been imposed6

on Hernandez at his initial sentencing because of his con viction

under § 924(c) for using or carrying the same firea rm. On the

other hand, once the § 924(c) conviction is set aside, the failure

to add the two-level increase results in a sentence that is not

correctly calculated, notwithstanding the specific requirement of

the guideline. Therefore, without the instant modification of the

sentence, the sentence after vacatur of the § 924(c) conviction

would have been contrary to law.

This interrelationship between the convictions and the

sentences--created by the guidelines’ requirement that the criminal

offense level be incr eased by two in the absence of a § 924(c)

conviction--is exactly the type situation contemplate d as an

exception to the majority holding in Henry ; therefore, there is no

conflict between our holding and the Henry majority. In short,

Henry does not control our decision today.

III

The decision of United States v. Rodriguez decides the issues

presented by this appeal. We are bound by the case law of our

circuit and therefore the sentence imposed by the district court is

A F F I R M E D.

ENDRECORD7

REAVLEY, Circuit Judge, dissenting.

This holding is contrary to United States v. Henry , 709 F.2d

298 (5th Cir. 1983) as elaborated in United State v. Cataldo , 832

F.2d 869, 873 (5th Cir. 1987). This is not a case where both

sentences make the sentencing scheme illegal. There is one, and

only one, illegal sentence. It is the sentence under 18 U.S.C.

§ 924(c). That is the only sentence attacked by Hernandez, and the

court could do no more than vacate it.