*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellant,
v. DONALD KENARD DAVIS, Defendant-Appellee. No. 97-3314 (D. Kan.) (D.Ct. No. 96-3042-DES)

ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Mr. Donald Davis was found guilty of five drug-related counts, including-2-

two counts under 18 U.S.C. § 924(c) for use of a fi rearm in a drug trafficking crime. He was sentenced to 240 months imprisonment , partly comprised of 120 months for the § 924(c) convictions. He subsequent ly filed a 28 U.S.C. § 2255 motion seeking to set aside his § 924(c) conviction s in light of the United States Supreme Court’s ruling in Bailey v. United States , 516 U.S. 137, 150 (1995) (clarifying the term “use” of a firearm for purpose s of § 924(c)). The Government filed a response, claiming the § 924(c) convictions should stand in spite of Bailey . In its response, the Government did not expressl y request the court to resentence Mr. Davis if it granted his § 2 255 motion. The district court granted Mr. Davis’ § 2255 motion, vacating his § 92 4(c) convictions. United States v. Davis , 924 F. Supp. 1082 (D. Kan. 1996). The district c ourt’s order, however, did not address the effect of its ruling o n Mr. Davis’ sentence. Id. at 1084. Six days later, the Government filed a motion to r esentence Mr. Davis to reflect the firearms sentence enhancement under Uni ted States Sentencing Guidelines § 2D1.1(b)(1). The court denied the Gov ernment’s motion, concluding it did not have jurisdiction to modify a previously imposed sentenced. The Government appeals, and we reverse.

The Government claims the district court retained j urisdiction to resentence-3-

Mr. Davis after it vacated his firearms convictions . We review the district court’s determination as to its jurisdiction to resentence de novo
. United States v. Mendoza , 118 F.3d 707, 709 (10th Cir.), cert. denied, 118 S. Ct. 393 (1997). A district court may modify a defendant’s sentence on ly when Congress has expressly granted the court jurisdiction to do so. United States v. Blackwell , 81 F.3d 945, 947 (10th Cir. 1996), rev’d on other grounds , 127 F.3d 947 (10th Cir. 1997).
The Government claims the district court retained j urisdiction under 28 U.S.C. § 2255 to resentence Mr. Davis. Section 225 5 states, in part, if the court finds the defendant entitled to relief under the st atute, then “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may ap pear appropriate .” 28 U.S.C. § 2255 (emphasis added). We agree with the Governm ent that the clear language of the statute confers jurisdiction on the districtcourt to discharge the prisoner, grant a new trial, resentence or correct the senten ce as appropriate, after vacating a judgment and conviction pursuant to § 2255. See United States v. Walker , 118 F.3d 559, 561 (7th Cir. 1997) (ruling a court has areasonable amount of time to resentence following its vacation of a conviction). Indeed, continuing jurisdiction under § 2255 to discharge a prisoner, order a new t rial, resentence or correct a-4-

sentence is necessary since once a court determines § 2255 relief from a § 924(c) conviction is appropriate, it must then “set aside the judgment, which encompasse[s] both convictions and sentences.” Mendoza , 118 F.3d at 709.
Further, we believe Mr. Davis had no legitimate exp ectation of finality since it is well established “a defendant who mount s a successful collateral attack on a single count of conviction faces the risk that the district court will look anew at the entire punishment and resentence on the rema ining count[s].” Walker , 118 F.3d at 561 (citations omitted). It is appropriate for the district court to resentence a defendant on remaining convictions that are interdependent with the vacated convictions to carry out the intent of the United States Sentencing Guidelines. Mendoza , 118 F.3d at 709-10 (noting sentencing under the Guidelines constitutes a sentencing package which c onsiders all counts together, therefore, when interrelated counts are vacated, re sentencing is appropriate). Moreover, the Government requested resentencing onl y six days after the court’s order vacating Mr. Davis’ convictions. For these r easons, we conclude the district court erred in its conclusion it did not h ave jurisdiction to consider resentencing.
Accordingly, the decision of the district court is REVERSED . The case is-5-

REMANDED to the district court for resentencing on the rema ining counts.
Entered by the Court:
WADE BRORBY United States Circuit Judge