1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-30-1996

United States v. Goggins

Precedential or Non-Precedential:

Docket 96-3154

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Recommended Citation

"United States v. Goggins" (1996). 1996 Decisions. Paper 65.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/65
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 96-3154 

 

 UNITED STATES OF AMERICA 

 v. 

 DAMOND GREG GOGGINS, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Crim. No. 95-00048-3) 

 

 Submitted under Third Circuit Rule LAR 34.1(a) 

 October 10, 1996 

 BEFORE: MANSMANN and GREENBERG, Circuit Judges, 

 and HILLMAN, District Judge* 

 (Filed:October 30, 1996) 

 

 Shelley Stark 

 Federal Public Defender 

 W. Penn Hackney, First 

 Asst. Federal Public 

 Defender 

 Karen Sirianni Gerlach 

 Asst. Federal Public 

 Defender 

 415 Convention Tower 

 960 Penn Avenue 

 Pittsburgh, PA 15222 

 Attorneys for Appellant 

 Frederick W. Thieman 

 United States Attorney 

 Bonnie R. Schlueter

 Assistant U.S. Attorney 

 

* Honorable Douglas W. Hillman, Senior Judge of the United 

 States District Court for the Western District of Michigan, 

 sitting by designation. 
 Gregory J. Nescott 

 Assistant U.S. Attorney 

 633 U.S. Post Office & 

 Courthouse 

 Pittsburgh, PA 15219 

 Attorneys for Appellee 

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 Appellant Damond Goggins appeals from a judgment of 

conviction and sentence in this criminal case. He limits his 

appeal to the contention that the district court improperly 

imposed a 2-level enhancement of his sentencing level under 

U.S.S.G. § 2D1.1(b)(1) ("section 2D1.1(b)(1)") for possession of 

a firearm. The issue before us is whether the court was barred 

from imposing this enhancement by the circumstance that the court 

previously had sentenced Goggins to a later vacated five-year 

sentence for using and carrying a firearm during and in relation 

to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) 

("section 924(c)(1)"). 

 I. Background and Procedural History

 The case originated with Goggins's arrest on August 10, 

1994, when the police, while executing a search warrant in 

Pricedale, Pennsylvania, found him lying on a bed with a loaded 

firearm in a bedroom in which there also was a substantial 

quantity of cocaine base. The ensuing procedural steps in the 

case had a routine start but later took an unusual turn. A grand 

jury indicted Goggins for possession with intent to distribute in 

excess of five grams of cocaine base in violation of 21 U.S.C. §§ 

841(a)(1) and 841(b)(1)(B)(iii) and for using and carrying a 

firearm during and in relation to a drug trafficking crime in 

violation of section 924(c)(1). Goggins pleaded guilty to both 

counts of the indictment. The district court calculated his 

total offense level as 23 and his criminal history category as 

IV. These calculations yielded a sentencing range of 130 to 147 

months because of the requirement in section 924(c)(1) that the 

court impose a five-year sentence on that charge consecutive to 

the sentence on the drug possession count. The court sentenced 

Goggins to a 130-month term divided between 70 months on the 

possession charge and 60 months on the weapons offense. The 

government did not urge that the court increase his sentencing 

level for possession of a firearm pursuant to section 2D1.1(b)(1) 

and the court did not do so. Goggins then appealed. 

 While the appeal was pending the Supreme Court decided 

Bailey v. United States, 116 S.Ct. 501 (1995), in which it held 

that section 924(c)(1) requires "active employment" of a firearm 

and not mere "proximity and accessibility" during the drug 

trafficking offense. Id. at 505. Goggins and the government 
agreed that Goggins's conduct did not violate section 924(c)(1) 

as construed in Bailey. Consequently they stipulated that the 

appeal would be dismissed in order that Goggins could move in the 

district court to vacate his conviction under section 924(c)(1) 

so that his sentence could be reduced by five years. The 

parties, however, could not agree on whether section 2D1.1(b)(1) 

would be applicable on the resentencing and thus they did not 

make a stipulation on that point. On December 29, 1995, in 

accordance with the stipulation, we dismissed the appeal. 

 Goggins then moved in the district court to vacate the 

sentence and on March 6, 1996, the district court entered an 

order vacating the sentence. The district court also ordered 

that the parties file briefs on the question of whether section 

2D1.1(b)(1) would be applicable at the resentencing. 

 On March 11, 1996, the district court filed Amended 

Tentative Findings and Rulings Concerning Disputed Facts or 

Factors. The court held that section 2D1.1(b)(1) was, in terms, 

applicable as the guideline calls for imposition of the 

enhancement "if the weapon was present, unless it is clearly 

improbable that the weapon was connected with the offense." 

U.S.S.G. § 2D1.1, Commentary n.3. In this regard the court 

relied principally on United States v. Mitchell, 31 F.3d 271, 

277-78 (5th Cir.), cert. denied, 115 S.Ct. 455 (1994) (holding 

that presence and accessibility of weapon trigger enhancement). 

Here the weapon clearly was present in the bedroom when the 

police arrested Goggins and it was not improbable that the weapon 

was connected with the offense. For two reasons the court would 

not follow United States v. Watts, 67 F.3d 790, 796-98 (9th Cir. 

1995), cert. denied, 116 S.Ct. 1369 (1996), which held that a 

court could not impose a section 2D1.1(b)(1) enhancement if a 

jury acquitted the defendant under section 924(c)(1). First, a 

jury had not acquitted Goggins. Second, the court found Wattsunpersuasive 

as Watts reached a result contrary to that in the 

three other cases which the court cited holding that an acquittal 

on a section 924(c)(1) count does not preclude a section 

2D1.1(b)(1) sentencing enhancement. See United States v. 

Billops, 43 F.3d 281, 288 (7th Cir. 1994), cert. denied, 115 

S.Ct. 1389 (1995); United States v. Romulus, 949 F.2d 713, 716-17 

(4th Cir. 1991), cert. denied, 503 U.S. 992, 112 S.Ct. 1690 

(1992); United States v. Coleman, 947 F.2d 1424, 1428-29 (10th 

Cir. 1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1590 (1992). 

 The court next rejected Goggins's argument that the 

application of section 2D1.1(b)(1) violated double jeopardy 

principles as we have held repeatedly that if convictions on some 

counts of a multi-count indictment are vacated the court may 

resentence the defendant to enhanced sentences on the remaining 

counts. See, e.g., United States v. Busic, 639 F.2d 940, 949-50 

(3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055 (1981). 

Finally, the court rejected Goggins's arguments that collateral 

estoppel, the law of the case doctrine, and waiver precluded 

application of section 2D1.1(b)(1). 

 The court then calculated Goggins's adjusted offense 

level as 25 using the section 2D1.1(b)(1) enhancement. Thus, 

predicated on a criminal history category of IV, he was subject 
to a sentencing range of 84 to 105 months. The court imposed a 

sentence of 84 months to be followed by a five-year term of 

supervised release. Goggins then appealed again. 

 II. Discussion 

 On this appeal Goggins contends that the district court 

should not have applied section 2D1.1(b)(1) for several reasons. 

First, he argues that the government waived its right to have 

section 2D1.1(b)(1) applied because "it unwisely and improperly 

chose to pursue the § 924(c)(1) charge, in lieu of a § 

2D1.1(b)(1) enhancement." Br. at 19. Second, Goggins argues, 

citing United States v. Watts, 67 F.3d 790, that the dismissal of 

the 18 U.S.C. § 924(c)(1) count bars the application of section 

2D1.1(b)(1). Third, he contends that "there was no connection 

between the firearm and the underlying offense" so that section 

2D1.1(b)(1) is inapplicable. Br. at 24. 

 Fourth, Goggins attempts to distinguish our line of 

cases providing that if a conviction of one count of a multicount indictment is vacated on appeal, on remand the district 

court may resentence the defendant to an increased sentence on 

the remaining counts so long as the total reimposed sentence does 

not exceed the original sentence. See, e.g., United States v. 

Retos, 25 F.3d 1220, 1232-33 (3d Cir. 1994) (holding that 

district court has discretion to resentence up to length of 

original sentence); United States v. Pelullo, 14 F.3d 881, 900 

(3d Cir. 1994) (holding that sentences can be increased on remand 

as long as reasons are identified); United States v. Busic, 639 

F.2d at 949-50. He contends that these cases are inapplicable 

because his section 924(c)(1) "conviction was vacated, not as the 

result of a direct appeal, but as the result of a Motion to 

Vacate which the government consented to and the district court 

granted." Br. at 25. Furthermore, he points out that his motion 

to vacate his sentence challenged only the section 924(c)(1) 

conviction so that his "remaining conviction [was] untouched." 

Br. at 25. Thus, in his view, the district court did not have 

jurisdiction to resentence him on the "untouched" count. He also 

contends that the "effect of the § 2D1.1(b)(1) enhancement . . . 

was to resentence him on a lesser included offense after the 

greater offense had been thrown out, and not simply to resentence 

him on the remaining conviction," thus violating the double 

jeopardy protections. Br. at 26. 

 We reject all of Goggins's contentions. A grand jury 

indicted Goggins for the violation of section 924(c)(1). Once 

Goggins pleaded guilty to that charge the government could not 

seek to have his sentencing level enhanced under section 

2D1.1(b)(1) because the commentary to U.S.S.G. § 2K2.4 makes it 

clear that such enhancement would be prohibited double counting. 

U.S.S.G. § 2K2.4, Comment, background. Thus, the government 

could not choose between the application of sections 2D1.1(b)(1) 

and 924(c)(1) at the sentencing. Accordingly, the only basis for 

waiver would be on a sort of election of remedies theory: that 

by seeking an indictment under section 924(c)(1) the government 

precluded itself from later seeking an enhancement under section 

2D1.1(b)(1). We reject such an attenuated theory for there is no 
reason why facts relating to a count on which a defendant is 

acquitted or which is dismissed may not be germane with respect 

to a count on which he is convicted. See United States v. Ryan, 

866 F.2d 604, 608 (3d Cir. 1989). Furthermore, the government 

cannot be certain when a grand jury indicts a defendant what 

facts will be determined at the trial. 

 We also reject Goggins's argument that Goggins's 

acquittal of the section 924(c)(1) count has any bearing on this 

matter. Rather, we align ourselves with the overwhelming 

majority of the courts of appeals which have held that a weapons 

enhancement under section 2D1.1(b)(1) is permissible after an 

acquittal under section 924(c)(1). See, e.g., United States v. 

Pollard, 72 F.3d 66, 68-69 (7th Cir. 1995); United States v. 

Barnes, 49 F.3d 1144, 1149-50 (6th Cir. 1995); United States v. 

Billops, 43 F.3d at 288; United States v. Ovalle-Marquez, 36 F.3d 

212, 224-25 (1st Cir. 1994), cert. denied, 115 S.Ct. 1322 (1995); 

United States v. Romulus, 949 F.2d at 716-17; United States v. 

Coleman, 947 F.2d at 1428-29. Pollard explains why this result 

is correct. Section 2D1.1(b)(1) is broader than section 

924(c)(1) and so encompasses conduct not within section 

924(c)(1). Furthermore, the burden of proof to impose an 

enhancement under section 2D1.1(b)(1) is less than the burden for 

a conviction under section 924(c)(1). Pollard, 72 F.3d at 68-69. 

We also note that our result is consistent with the Supreme 

Court's recognition in Bailey that section 2D1.1(b)(1) is broader 

than section 924(c)(1). Bailey, 116 S.Ct. at 509. Of course, in 

this case it is perfectly clear that the facts supported the 

enhancement under section 2D1.1(b)(1) and accordingly we reject 

Goggins's argument to the contrary. 

 We also reject Goggins's argument that our cases 

allowing a court on remand to impose a greater sentence on a 

conviction on a count affirmed on appeal, after a sentence on 

another count is vacated, are distinguishable. Plainly the 

proceedings after the original appeal were functionally the same 

as those which would follow a reversal of a conviction by this 

court. In any event, the reason for allowing a resentencing on a 

conviction on a count upheld on appeal after an acquittal on 

another count, is to permit the court to impose the sentence 

which seems appropriate for the offense or offenses for which the 

defendant has been convicted validly by allowing the court to 

reconstruct the sentencing plan. See United States v. Busic, 639 

F.2d at 952. After all, if the district court knew at the time 

of the original sentencing that it could not sentence on all the 

counts on which the defendant was convicted, it might have 

imposed a greater sentence on the counts on which it could 

sentence validly. 

 Furthermore, inasmuch as we regard this case as 

functionally being the same as a case involving a reversal and a 

remand, the district court no more lost jurisdiction over the 

count not challenged on the motion to vacate than it would lose 

jurisdiction over a count on which a judgment of conviction is 

affirmed, but on which a new sentence is imposed after the court 

vacates a sentence on another count. In this regard, we point 

out that Rodriguez v. United States, 933 F. Supp. 279, 283-85 
(S.D. N.Y. 1996), and Dossett v. United States, 931 F. Supp. 686, 

687-88 (D.S.D. 1966), which Goggins cites, and which would not 

allow resentencing on other counts after convictions under 

section 924(c)(1) were vacated, are distinguishable because the 

courts in those cases were entertaining proceedings under 28 

U.S.C. § 2255. Thus, the Rodriguez and Dossett courts themselves 

distinguished the collateral proceedings before them from 

proceedings on remand following a direct appeal. As we have 

indicated, we regard the proceedings in the district court in the 

same way we would have regarded the case if we had reversed and 

remanded for resentencing. Thus, we have no need to indicate 

whether we agree with Rodriguez and Dossett, though we do observe 

that other district courts have reached results contrary to those 

in Rodriguez and Dossett. See, e.g., Mixon v. United States, 926 

F. Supp. 178, 181-82 (S.D. Ala. 1996). Finally, we hold that, as 

Busic makes clear, 639 F.2d at 949-52, the resentencing did not 

violate double jeopardy principles. 

 The judgment of conviction and sentence entered March 

19, 1996, will be affirmed.