1During trial, the district court granted Benbrook’s motion

for judgment of acquittal on the “carry” prong of §924(c).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 97-10308

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

JAMES ROBERT BENBROOK, JR.,

Defendant-Appellant.

________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

________________________________________________

July 31, 1997

Before KING, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant James Robert Benbrook, Jr. appeals his

resentencing by the district court following a successful challenge

to his 18 U.S.C. §924(c) conviction. Finding no error, we affirm.

I.

FACTS AND PROCEEDINGS

A jury convicted Benbrook of unlawful possession of

phenylacetic acid, in violation of 18 U.S.C. §841(d)(2), and using

a firearm during and in relation to a drug trafficking offense, in

violation of 18 U.S.C. §924(c).1 The district court sentenced him

to consecutive terms of imprisonment —— forty-six months for the
 

2United States v. Benbrook, 40 F.3d 88 (5th Cir. 1994).

 

3 -- U.S. --, 116 S. Ct. 501 (1995).

2

drug conviction and sixty months for the firearm conviction,

followed by a three-year period of supervised release, and payment

of a mandatory special assessment of $100. We affirmed.2

After the United States Supreme Court decided Bailey v. United

States,

3 Benbrook filed a habeas corpus petition, pursuant to 28

U.S.C. §2255, asserting that the evidence was insufficient to

support his “use” conviction under §924(c). The government

conceded that this relief should be granted, but urged the district

court to resentence Benbrook on the underlying drug conviction by

applying a two-level enhancement to his offense level, pursuant to

United States Sentencing Guideline (U.S.S.G.) §2D1.1(b)(1), for

possession of a dangerous weapon. The district court did just

that, vacating Benbrook’s §924(c) conviction and resentencing him

to fifty-seven months of imprisonment on the drug count, followed

by a three-year period of supervised release, and payment of a

mandatory special assessment of $50.

Benbrook appealed, asserting that the district court had no

jurisdiction to resentence him on the unchallenged, underlying drug

conviction. He contends that the resentencing violated the Double

Jeopardy Clause.

II.

ANALYSIS

18 U.S.C. §924(c) and Sentencing Guideline §2D1.1(b)(1) punish

the same conduct —— the use of a firearm during the commission of
 

4See U.S.S.G. §2K2.4 Commentary Background (1995).

3

a drug offense. As indicated by their interdependent sentences,

§924(c)’s firearm offense and the underlying drug offense of

§841(d)(2) are inextricably intertwined: Section 924(c) requires

the imposition of a five year sentence to be served consecutively

to any other term of imprisonment associated with an underlying

drug conviction. In like manner, §2D1.1(b)(1) of the Guidelines

requires a two-level increase to a defendant’s base offense level

for the possession of a dangerous weapon, including a firearm,

during the commission of a drug offense such as that proscribed by

§841(d)(2).

When a defendant is sentenced under §924(c), however, the

sentencing guidelines expressly prohibit application of the

§2D1.1(b)(1) two-level increase, as the level enhancement under

those circumstances would result in an impermissible double

counting of the firearm offense —— once under §924(c) and again

under §2D1.1(b)(1).4 Consequently, at the time of the original

sentencing under §924(c), the two-level enhancement of §2D1.1(b)(1)

is not available. 

Benbrook argues that the district court had no jurisdiction to

resentence him on his unchallenged, underlying drug conviction or

to apply the two-level enhancement. Thus Benbrook would handcuff

the district court by restricting resentencing to that complained

of in his petition and prohibiting reconsideration of the entire

sentence. We disagree. 

We have recently held that §2255 vests the district court with
 

5United States v. Rodriguez, 114 F.3d 46, 47-8 (5th Cir.

1997); United States v. Hernandez, 1997 WL 332519 at *2 (5th Cir.

June 18, 1997).

 

6Rodriguez, 114 F.3d at 48; Hernandez, 1997 WL 332519 at *2.

 

7See United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.

Ct. 426, 438 (1980).

 

8See Rodriguez, 114 F.3d at 48 (quoting United States v.

Colunga, 812 F.2d 196, 198 (5th Cir.), cert. denied, 484 U.S. 857,

108 S. Ct. 165 (1987)); Hernandez, 1997 WL 332519 at *2.

4

the power to resentence a defendant who successfully challenges his

§924(c) conviction only and that the district court may consider

imposition of the two-level enhancement of §2D1.1(b)(1) in

resentencing that defendant.5 We therefore hold that the district

court lawfully applied the two-level enhancement in resentencing

Benbrook on his unchallenged, underlying drug conviction.

Benbrook’s new sentence turns in part on the now vacated §924(c)

conviction, which freed the district court’s hands, where they were

tied before, to increase the offense level of Benbrook’s drug

conviction for the firearm offense pursuant to § 2D1.1(b)(1).

Neither does the district court’s resentencing violate the

Double Jeopardy Clause.6 That constitutional protection prohibits

resentencing only when a defendant has developed a legitimate

expectation of finality in his original sentence.7 When a

defendant challenges one of interdependent convictions, however, he

has no expectation of finality in his original sentence, having put

at issue the validity of the entire sentence.8 In seeking relief

from his §924(c) conviction and the consecutive sixty months

portion of his sentence attributable to that conviction, Benbrook
 

9See United States v. Rico, 902 F.2d 1065, 1068 (2d Cir.

1990)(defendant had not completed service of full sentence, as she

still faced five-year term of supervised release; therefore,

district court could correct sentence to conform to plea agreement

without violating the Double Jeopardy Clause); Woodhouse v. United

States, 934 F. Supp. 1008, 1014 (C.D. Ill. 1996)(defendant who

challenges his §924(c) conviction has no legitimate expectation of

finality in any portion of original aggregate sentence, even if he

has already served the term of imprisonment allocated to the

underlying drug conviction); Merritt v. United States, 930 F. Supp.

1109, 1114 (E.D.N.C. 1996)(after overturning §924(c) conviction,

district court could resentence defendant who had served term of

imprisonment allocated to drug conviction, as original sentence was

an aggregate one, service of which had not been completed); and

United States v. Acosta, 1996 WL 445351 at *4 (E.D. Pa. Aug. 5,

1996)(unpublished opinion)(sentence not fully served where

defendant had not completed term of imprisonment imposed for

interdependent convictions or four-year term of supervised

release). But see United States v. Daddino, 5 F.3d 262, 265 (7th

Cir. 1993)(defendant, who was convicted of conspiracy and attempted

extortion and who had served term of imprisonment and paid fines,

but had not completed period of supervised release, had a

legitimate expectation of finality in the completed part of the

5

opened the door for the district court to revisit the entire

sentence —— not just to vacate that conviction but also to

resentence him on the unchallenged, underlying drug conviction.

Benbrook insists that he had a legitimate expectation of

finality in his drug sentence, as he had completed the term of

imprisonment originally allocated to that offense. Benbrook’s

argument, however, rests on the erroneous assumption that he

received separate and distinct sentences for his drug and firearm

convictions. To the contrary, he received one aggregate sentence

for those interdependent offenses. When Benbrook attacked part of

that aggregate sentence —— his §924(c) conviction, he necessarily

attacked the whole. Thus, he could have had no legitimate

expectation of finality in any portion of the original aggregate

sentence.9 Moreover, assuming that Benbrook has served the term of
sentence); Warner v. United States, 926 F. Supp. 1387, 1392 (E.D.

Ark. 1996)(defendant enjoys legitimate expectation of finality in

completed term of lawful incarceration for underlying drug

conviction; thus, district court’s resentencing following

defendant’s successful challenge to his §924(c) conviction would

violate Double Jeopardy and Due Process Clauses; no mention of

supervised release); and United States v. Pecina, 952 F. Supp. 409,

412 n.2 (N.D. Tex. 1996)(court need not address the situation in

which sentence on underlying drug convictions has been completed

prior to vacation of §924(c) conviction, “a situation in which the

constitutionality of resentencing would be far more questionable”).

 

10A period of supervised release is part of the defendant’s

sentence. See 18 U.S.C. §3583(a)(1994)(“The court, in imposing a

sentence to a term of imprisonment ..., may include as part of the

sentence a requirement ... of supervised release.”) and U.S.S.G.

§5D1.1(a)(1995)(“The court shall order a term of supervised release

to follow imprisonment when a sentence of imprisonment of more than

one year is imposed, or when required by statute.”).

6

imprisonment originally allocated to his drug conviction, he has

not completed, much less begun, the mandatory three-year period of

supervised release.10

III.

CONCLUSION

For the foregoing reasons, we hold that the district court did

not err generally in resentencing Benbrook on his unchallenged,

underlying drug conviction, nor specifically in applying the twolevel enhancement of §2D1.1(b)(1). It follows that the district

court’s resentencing of Benbrook should be and therefore is 

AFFIRMED.