* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50627

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

DAVERNE M FOY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(A-96-CA-101)

_________________________________________________________________

June 3, 1997

Before KING, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

The government challenges the district court’s conclusion

that it did not have authority to resentence Daverne M. Foy on

his drug convictions after granting Foy’s 28 U.S.C. § 2255

petition and vacating his conviction under § 924(c)(1) for using

a firearm during a drug-trafficking offense. We conclude that

the district court had authority under § 2255 to resentence Foy

and that such a resentencing does not implicate double jeopardy. 
2

Thus, we reverse the district court’s conclusion that it had no

authority to resentence and remand for resentencing.

I. BACKGROUND

Foy was charged in a second superseding indictment with

conspiracy to possess with intent to distribute cocaine base

(count one), possession with intent to distribute cocaine base

(count two), possession with intent to distribute marijuana

(count three), using and carrying a firearm during a drugtrafficking offense (count four), and possession of a firearm

bearing an obliterated serial number (count five). Foy pleaded

guilty to the charge of conspiracy to possess with intent to

distribute marijuana in exchange for the dismissal of the other

charges. Prior to sentencing, the court rejected the plea

agreement. 

A jury found Foy guilty of counts one, three, four, and of

the lesser-included offense of simple possession on count two. 

The district court sentenced Foy to two 97-month concurrent terms

of imprisonment on counts one and three, a 12-month concurrent

term of imprisonment on count two, a 60-month consecutive term of

imprisonment on count four, a 5-year term of supervised release,

and a $175 special assessment.

On direct appeal, this court vacated Foy’s sentence and

remanded the case to the district court to reconsider its

rejection of the plea agreement. United States v. Foy, 28 F.3d
 

1 Anders v. California, 386 U.S. 738 (1967).

 

2 In Bailey, the Supreme Court held that a conviction for

“use” of a firearm during and in relation to a drug-trafficking

crime (18 U.S.C. § 924(c)(1)) requires “active employment of the

firearm,” which is more than mere possession. 116 S. Ct. at 506. 

The government has conceded that the evidence presented at trial is

insufficient to prove that Foy actively employed a firearm.

3

464, 477 (5th Cir. 1994). The court instructed that if the

district court on remand rejected the plea agreement, it should

resentence Foy based on a specific finding as to the relevant

drug quantity. On remand, the district court reaffirmed its

rejection of the plea agreement. After making specific findings

as to the relevant drug quantity, the court sentenced Foy to

concurrent terms of imprisonment of 51 months on counts one and

three, a concurrent 12-month term of imprisonment on count two,

and a consecutive 60-month term of imprisonment on count four. 

This court dismissed Foy’s appeal following the filing by counsel

of an Anders1 brief.

Foy filed a 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence, arguing that his sentence for using and

carrying a firearm during and in relation to a drug-trafficking

offense should be vacated in light of Bailey v. United States,

116 S. Ct. 501 (1995). The government conceded that Foy’s

§ 924(c)(1) conviction should be dismissed.2 The government

argued that the district court should resentence Foy on counts

one through three. Foy filed a response, arguing that the
 

3 Although 28 U.S.C. § 2253 states that a certificate of

appealability is required to appeal from a “final order” in a

§ 2255 proceeding, it is well-settled that the government is not

required to obtain such a certificate. See FED. R. APP. P. 22(b)

(“If an appeal is taken by a State or its representative, a

certificate of appealability is not required.”); cf. Texas v.

Graves, 352 F.2d 514, 514 (5th Cir. 1965) (“We are of the opinion

that it is not necessary for a state or its representative to

obtain a certificate of probable cause in order to take an appeal

to the Court of Appeals from a final order granting a writ of

habeas corpus . . . .”). 

4

district court was without jurisdiction to resentence him as to

the remaining counts.

The magistrate judge recommended that the district court

grant Foy’s § 2255 motion and order resentencing. Foy filed

objections to the magistrate judge’s report. The district court

accepted in part the magistrate judge’s report and

recommendation. The court ordered that Foy’s § 2255 motion be

granted and the 60-month sentence for a violation of § 924(c)(1)

be vacated. The court did not order resentencing, reasoning that

it lacked jurisdiction to resentence Foy. The court ordered that

the vacating of the 60-month sentence be stayed pending final

resolution of an appeal by the government. The government filed

a timely notice of appeal.3

II. ANALYSIS

The Sentencing Guidelines provide for a two-level

enhancement if the defendant possessed a firearm during the

commission of a drug offense. U.S. SENTENCING GUIDELINES MANUAL

§ 2D1.1(b)(1) (1995) [hereinafter USSG]. Although sentenced on
5

three drug offenses, Foy did not receive this enhancement because

he was also sentenced for using a gun during a drug trafficking

offense in violation of 18 U.S.C. § 924(c)(1), and the Sentencing

Guidelines prohibit sentencing for a § 924(c)(1) conviction and

also applying the two-level enhancement for the other drug

offenses. See USSG § 2K2.4 Application Note 2. 

The government argues that because Foy’s § 924(c)(1)

conviction has been vacated pursuant to Bailey, the restriction

in USSG § 2K2.4 no longer applies and the district court should

have resentenced Foy on the other counts to take into account the

possession of the firearm. Foy responds that he did not

challenge his sentence on the other convictions and, as such, the

district court had authority only to alter the sentence he

challenged. 

The district court agreed with Foy, concluding that “the

Court has no authority to resentence the movant on the remaining

counts for which he was legally convicted.” Because the district

court determined it had no authority to resentence Foy on the

drug convictions, “the Court decline[d] to reach the double

jeopardy and due process arguments implicated by the Government’s

request to resentence the movant.”

At the time of the district court’s decision, no Fifth

Circuit cases addressed the authority of a district court to

resentence a defendant on other drug offenses after vacating a
6

§ 924(c)(1) conviction pursuant to Bailey. However, a panel of

this court recently confronted the issue in United States v.

Rodriguez, No. 96-30878, 1997 WL 265121 (5th Cir. May 20, 1997). 

Rodriguez was sentenced for conspiracy and possession with intent

to distribute cocaine and for two firearms offenses under

§ 924(c)(1). Id. at *1. After Bailey, Rodriguez filed a § 2255

motion to vacate his firearms convictions, and the district court

granted his motion. Id. The district court resentenced

Rodriguez on his other two drug offenses to account for the

possession of a gun, which the court previously had been

prevented from considering because of the § 924(c)(1)

convictions. Id. Rodriguez argued that the district court had

no authority to resentence him on the drug offenses because he

had not challenged those sentences. Id. We affirmed, concluding

that the district court, in modifying the other sentences to

account for possession of the guns, acted as “authorized and

directed” by § 2255, which provides:

If the court finds that . . . the sentenced imposed was

not authorized by law . . . , the court shall . . .

correct the sentence as may appear appropriate.

The pertinent facts in the case at bar are identical to those in

Rodriguez, and therefore the district court erred in determining

that it did not have authority to resentence Foy on the drug

offenses to account for gun possession. Thus, we remand for the

district court to resentence Foy.
 

4 The Supreme Court has held that resentencing after a

defendant has successfully exercised a legal right can implicate

due process if the new sentence is vindictive in nature. North

Carolina v. Pearce, 395 U.S. 711 (1969); United States v.

Campbell, 106 F.3d 64 (5th Cir. 1997). Because the district

court has not actually resentenced Foy, any discussion of this

due process issue is premature.

7

Such resentencing does not implicate double jeopardy. 

Rodriguez specifically addressed the argument that resentencing

on the drug offenses to account for gun possession constituted

double jeopardy. 1997 WL 265121, at *2. The court noted that

under established law, resentencing poses double jeopardy

concerns “only if a defendant has developed a legitimate

‘expectation in the finality of [his] original sentence.’” Id.

(quoting United States v. DiFrancesco, 449 U.S. 117, 139 (1980)). 

The court concluded that Rodriguez had no such expectation

because he challenged part of a series of interrelated

convictions and therefore “the double jeopardy clause was not

implicated in the sentencing of Rodriguez.” Id. Again, the

pertinent facts in Rodriguez are identical to those here, and we

conclude that Foy’s double jeopardy argument fails because the

challenge of his § 924(c)(1) conviction implicated the

interrelated drug offenses, meaning he had no legitimate

expectation of finality in his original sentence.4

III. CONCLUSION
8

For the foregoing reasons, we REVERSE the district court’s

determination that it had no authority to resentence Foy and

REMAND for resentencing.