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. e du/thir dc ir c uit_1996/65UNITED 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 Pennsylvan ia (D.C. Crim. No. 95-00048-3)

Submitted under Third Circuit Rule LAR 34 .1(a) October 10, 1996

BEFORE: MANSMANN and GREENBERG, Circuit J udges, and HILLMAN, District Judge*

(Filed:October 30, 1996)

Shelley Stark
Federal Public Defe nder W. Penn Hackney, Fi rst Asst. Federal Publi c Defender
Karen Sirianni Gerl ach
Asst. Federal Publi c Defender
415 Convention Towe r 960 Penn Avenue Pittsburgh, PA 1522 2

Attorneys for Appellant

Frederick W. Thiema n United States Attor ney Bonnie R. Schlueter
Assistant U.S. Atto rney

* 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. Atto rney 633 U.S. Post Offic e &
Courthouse Pittsburgh, PA 1521 9

Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge. Appellant Damond Goggins appeals from a j udgment of
conviction and sentence in this criminal case. He limits his appeal to the contention that the district court im properly imposed a 2-level enhancement of his sentencing lev el 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 cour t 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 an d 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 war rant in Pricedale, Pennsylvania, found him lying on a bed w ith a loaded
firearm in a bedroom in which there also was a subs tantial quantity of cocaine base. The ensuing procedural s teps 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 o f 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and for using and c arrying a firearm during and in relation to a drug traffickin g crime in violation of section 924(c)(1). Goggins pleaded gu ilty to both
counts of the indictment. The district court calcu lated 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 co nsecutive to the sentence on the drug possession count. The cou rt sentenced Goggins to a 130-month term divided between 70 mont hs on the possession charge and 60 months on the weapons offe nse. The government did not urge that the court increase his sentencing level for possession of a firearm pursuant to secti on 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 w hich it held that section 924(c)(1) requires "active employment" of a firearm and not mere "proximity and accessibility" during t he drug trafficking offense. Id. at 505. Goggins and the governmentagreed that Goggins's conduct did not violate secti on 924(c)(1)

as construed in Bailey. Consequently they stipulat ed that the appeal would be dismissed in order that Goggins cou ld move in the
district court to vacate his conviction under secti on 924(c)(1) so that his sentence could be reduced by five years . The parties, however, could not agree on whether sectio n 2D1.1(b)(1) would be applicable on the resentencing and thus th ey did not make a stipulation on that point. On December 29, 1995, in accordance with the stipulation, we dismissed the a ppeal. Goggins then moved in the district court to vacate the sentence and on March 6, 1996, the district court e ntered an order vacating the sentence. The district court al so ordered that the parties file briefs on the question of whe ther section 2D1.1(b)(1) would be applicable at the resentencing

. On March 11, 1996, the district court fil ed Amended Tentative Findings and Rulings Concerning Disputed Facts or Factors. The court held that section 2D1.1(b)(1) w as, in terms, applicable as the guideline calls for imposition of the enhancement "if the weapon was present, unless it i s clearly improbable that the weapon was connected with the o ffense." U.S.S.G. § 2D1.1, Commentary n.3. In this regard t he court relied principally on United States v. Mitchell, 31 F.3d 271, 277-78 (5th Cir.), cert. denied, 115 S.Ct. 455 (199 4) (holding that presence and accessibility of weapon trigger e nhancement). Here the weapon clearly was present in the bedroom when the police arrested Goggins and it was not improbable t hat the weapon
was connected with the offense. For two reasons th e 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 h eld that a court could not impose a section 2D1.1(b)(1) enhanc ement 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 tha t an acquittal on a section 924(c)(1) count does not preclude a se ction 2D1.1(b)(1) sentencing enhancement. See United Sta tes v. Billops, 43 F.3d 281, 288 (7th Cir. 1994), cert. de nied, 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, 14 28-29 (10th Cir. 1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1 590 (1992). The court next rejected Goggins's argumen t that the application of section 2D1.1(b)(1) violated double jeopardy principles as we have held repeatedly that if convi ctions on some
counts of a multi-count indictment are vacated the court may
resentence the defendant to enhanced sentences on t he remaining counts. See, e.g., United States v. Busic, 639 F.2 d 940, 949-50 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 30 55 (1981). Finally, the court rejected Goggins's arguments tha t collateral estoppel, the law of the case doctrine, and waiver precluded application of section 2D1.1(b)(1). The court then calculated Goggins's adjus ted offense level as 25 using the section 2D1.1(b)(1) enhanceme nt. Thus, predicated on a criminal history category of IV, he was subjectto a sentencing range of 84 to 105 months. The cou rt 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 sev eral reasons. First, he argues that the government waived its rig ht to have section 2D1.1(b)(1) applied because "it unwisely an d improperly chose to pursue the § 924(c)(1) charge, in lieu of a § 2D1.1(b)(1) enhancement." Br. at 19. Second, Gogg ins argues, citing United States v. Watts, 67 F.3d 790, that th e dismissal of the 18 U.S.C. § 924(c)(1) count bars the applicatio n 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 o ur line of cases providing that if a conviction of one count o f a multicount indictment is vacated on appeal, on remand th e 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., Unite d States v. Retos, 25 F.3d 1220, 1232-33 (3d Cir. 1994) (holdin g that district court has discretion to resentence up to l ength of original sentence); United States v. Pelullo, 14 F. 3d 881, 900 (3d Cir. 1994) (holding that sentences can be incre ased on remand as long as reasons are identified); United States v . Busic, 639
F.2d at 949-50. He contends that these cases are i napplicable because his section 924(c)(1) "conviction was vacat ed, not as the result of a direct appeal, but as the result of a M otion to Vacate which the government consented to and the di strict court granted." Br. at 25. Furthermore, he points out t hat 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 d id not have jurisdiction to resentence him on the "untouched" c ount. He also contends that the "effect of the § 2D1.1(b)(1) enha ncement . . . 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 th e 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 governmen t could not seek to have his sentencing level enhanced under se ction 2D1.1(b)(1) because the commentary to U.S.S.G. § 2K 2.4 makes it clear that such enhancement would be prohibited dou ble counting. U.S.S.G. § 2K2.4, Comment, background. Thus, the g overnment could not choose between the application of section s 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 t heory: that by seeking an indictment under section 924(c)(1) th e government precluded itself from later seeking an enhancement under section 2D1.1(b)(1). We reject such an attenuated theory f or there is noreason why facts relating to a count on which a def endant is

acquitted or which is dismissed may not be germane with respect
to a count on which he is convicted. See United St ates v. Ryan, 866 F.2d 604, 608 (3d Cir. 1989). Furthermore, the government cannot be certain when a grand jury indicts a defen dant what
facts will be determined at the trial. We also reject Goggins's argument that Go ggins's acquittal of the section 924(c)(1) count has any be aring on this matter. Rather, we align ourselves with the overwh elming majority of the courts of appeals which have held t hat a weapons enhancement under section 2D1.1(b)(1) is permissibl e after an acquittal under section 924(c)(1). See, e.g., Unit ed 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); Unit ed States v. Billops, 43 F.3d at 288; United States v. Ovalle-Ma rquez, 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; Unite d States v. Coleman, 947 F.2d at 1428-29. Pollard explains why this result is correct. Section 2D1.1(b)(1) is broader than se ction 924(c)(1) and so encompasses conduct not within sec tion 924(c)(1). Furthermore, the burden of proof to imp ose 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 supp orted the enhancement under section 2D1.1(b)(1) and according ly we reject Goggins's argument to the contrary. We also reject Goggins's argument that ou r cases allowing a court on remand to impose a greater sent ence on a conviction on a count affirmed on appeal, after a s entence on another count is vacated, are distinguishable. Pla inly the proceedings after the original appeal were function ally the same
as those which would follow a reversal of a convict ion by this court. In any event, the reason for allowing a res entencing on a conviction on a count upheld on appeal after an acq uittal 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 th e 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 senten ce on all the counts on which the defendant was convicted, it mig ht have imposed a greater sentence on the counts on which i t could sentence validly. Furthermore, inasmuch as we regard this c ase as functionally being the same as a case involving a r eversal and a remand, the district court no more lost jurisdictio n over the count not challenged on the motion to vacate than i t would lose jurisdiction over a count on which a judgment of co nviction is affirmed, but on which a new sentence is imposed af ter the court vacates a sentence on another count. In this regar d, we point out that Rodriguez v. United States, 933 F. Supp. 2 79, 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 whic h would not allow resentencing on other counts after conviction s 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 cour ts themselves distinguished the collateral proceedings before the m from proceedings on remand following a direct appeal. A s we have indicated, we regard the proceedings in the distric t court in the same way we would have regarded the case if we had reversed and remanded for resentencing. Thus, we have no need t o indicate whether we agree with Rodriguez and Dossett, though we do observe
that other district courts have reached results con trary to those in Rodriguez and Dossett. See, e.g., Mixon v. Unit ed 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 resenten cing did not violate double jeopardy principles. The judgment of conviction and sentence e ntered March 19, 1996, will be affirmed.