20 United States v. Saikaly No. 98-3786

first by objecting to the presentence investigation report and then in hisdirect appeal. His failure to preserve these issues has now resulted in aprocedural default, and it is improper for this Court to do as the majorityhas done here and consider his defaulted arguments on appeal.

For the foregoing reasons, I dissent.

*

The Honorable Algenon L. Marbley

the Southern District of Ohio, sitting by 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MANSOUR W. SAIKALY,

Defendant-Appellant.

Appeal from the United St

for the Northern District o

No. 92-00200—Sam H. B

Submitted: Augu

Decided and Filed: M

Before: BATCHELDER and C

MARBLEY, Distr
2 United States v. Saikaly No. 98-3786

_________________

COUNSEL

ON BRIEF: Dennis P. Levin, Cleveland, Ohio, forAppellant. Samuel A. Yannucci, ASSISTANT UNITEDSTATES ATTORNEY, Akron, Ohio, for Appellee. 

MARBLEY, D. J., delivered the opinion of the court, in

which COLE, J., joined. BATCHELDER, J. (pp. 18-20),delivered a separate opinion concurring in part and dissentingin part.

_________________

OPINION

_________________

ALGENON L. MARBLEY, District Judge. DefendantAppellant Mansour W. Saikaly appeals the 240-month

sentence imposed by the district court upon resentencingfollowing the vacation of his conviction for using or carryinga firearm in relation to a drug trafficking crime pursuant to 18U.S.C. § 924(c) and the vacation of his designation as anarmed career criminal pursuant to 18 U.S.C. § 924(e).Specifically, Saikaly objects to the district court’s: 1)enhancement of his sentence pursuant to U.S.S.G.§ 2D1.1(b)(1) for possession of a firearm; 2) failure toconsider his objection to the amount of drugs for which hewas responsible; and 3) failure to consider his objection to hiscriminal history category and the determination that he was acriminal history category V rather than a IV. Saikaly alsoobjects to a typographical error on the judgment andcommitment order filed after the resentencing. For thereasons that follow, we AFFIRM in part and REVERSE in

part, and REMAND for further proceedings consistent withthis opinion.

No. 98-3786 Un

1The majority opinion inaccurately c

is that these issues were not contained in and therefore have not been preserved fothe basis for this dissenting opinion. characterize Saikaly’s challenges as beinpresentence report” to avoid finding a profor this dissent. Saikaly’s original sententwo factual findings: (1) that the amount within the range of 5 to 15 kilograms, aplaced him at Category V. Therefore, if Seither of those findings, it was incumbehis counsel had been ineffective in sentence report’s determination thoffender, but was denied relief on § 2255 motion currently before us Saikaly challenges the quantity of purposes of sentencing and the established pursuant to the Senten

We will not review on appeal c

habeas proceedings that were nodirect appeal. See Chandler v. JonCir. 1987) (“It is a well-establishreview that appellate courts do properly presented below . . . . [Tprinciple in rejecting attempts by hnew claims on appeal not preseproceedings below.”). See also UnF.2d 367, 368 (5th Cir. 1992) (per constitutional claims that could happeal may not be asserted in a coissues regarding the quantity of dand the guideline calculation of hiwere cognizable on direct appeal. direct appeal nor in his original motions did Saikaly ever assign edecision concerning those matters. the issue after the government file§2255 petition. Because Saikaly fafor review, they are not properly b
18 United States v. Saikaly No. 98-3786

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

ALICE M. BATCHELDER, concurring in part, dissenting

in part. I concur in part III.A of the majority’s holding,affirming the district court’s enhancement of Saikaly’ssentence pursuant to U.S.S.G. § 2D1.1(b)(1). For the reasonsthat follow, however, I dissent from parts III.B and III.C,which remand to the district court the issues concerning thequantity of drugs attributed to Saikaly and his criminal historycategory.

As the majority states, Saikaly raised “various challenges”

to his conviction on direct appeal in 1995. To be moreprecise, Saikaly assigned as error in the district court: (1) thefailure to suppress evidence seized in violation of the “knockand announce” rule; (2) the violation of his Sixth Amendmentright to a speedy trial; (3) the failure to give a multipleconspiracy jury instruction; (4) insufficiency of the evidenceto support conviction on the conspiracy charge; (5)insufficiency of the evidence to support conviction on thefirearm charges; and (6) the admission of certain physicalevidence seized in New York when he was arrested onunrelated charges. See United States v. Ross, 53 F.3d 332,1995 WL 253183 (6th Cir. April 27, 1995) (unpublished).After his unsuccessful appeal, Saikaly filed a § 2255 motion,followed by a supplemental § 2255 motion, in which heclaimed that: (1) his § 924(c) conviction was invalid underBailey; (2) he was sentenced improperly as an armed careercriminal under § 924(e)(2); (3) evidence seized in New Yorkduring an unrelated arrest was improperly admitted at trial;and (4) his counsel was ineffective at both the trial andsentencing stages because counsel failed to move forsuppression of evidence seized in New York in violation ofhis Fourth Amendment rights and failed to object to thedetermination in the pre-sentence report that Saikaly shouldbe sentenced as an armed career offender. Saikaly prevailedin the district court on the Bailey claim and on the claim that

No. 98-3786 Un

1Records indicated that Gadsen pur

Winchester .12 gauge shotgun (seized frowas arrested) and a Ruger 9mm semi-autothe crack house thought to be run by Saik

2The original indictment charged 

conspiracy to distribute and possess with 

I.

In May 1992, Saikaly was arres

investigation in Akron, Ohio, tdealers James Dillehay, JeromJohnson. Saikaly allegedly ran a side of Akron and purchased coJohnson on numerous occasionsthrough David Shepherd, who also south side of Akron. Initially, Safriendly, but a rift developed. Accinvestigation report, Saikaly learnto rob him. To protect his narcoallegedly instructed his girlfriend, Glock 9mm semi-automatic pistol phone conversation, Johnson told shown him the Glock. 

On May 1, 1992, Saikaly and two 

in New York City in a black Blbrother, Maurice. The individuals Blazer matched a description of robbery. The officers searched Gadsen’s loaded Glock 9mm compartment, ammunition, and $2his companions were arrested, dismissed and Saikaly returned to 

On May 22, 1992, Saikaly w

residence in Akron and ultimately cco-defendants, in a ten-count supconspiracy to distribute and po
4 United States v. Saikaly No. 98-3786

distribute cocaine, and various other drug and firearmcharges. Saikaly was named in Count 1 (conspiracy), Count 7(using or carrying a firearm in connection with a drugtrafficking crime, in violation of 18 U.S.C. § 924(c)), andCounts 8 and 9 (felon in possession of a firearm, in violationof 18 U.S.C. § 922(g)(1)). Co-defendants Gordon andJohnson entered pleas of guilty and served as governmentwitnesses at trial, providing much of the testimony against theother defendants. Saikaly presented four witnesses on hisbehalf – his parents and his siblings. Saikaly’s brother,Maurice, testified that he received the Winchester shotgunfrom Lisa Gadsen as payment for electronics work he haddone for her, that Gadsen owned the Glock, and that he hadallowed Gadsen to drive his Blazer. Maurice also testifiedthat the $22,000 found in the Blazer belonged to him.Saikaly’s mother testified that she found the Winchestershotgun in the garage where Maurice conducted hiselectronics business, and that she moved it to Saikaly’sbedroom for safekeeping. 

The jury was not persuaded by Saikaly’s defenses to the

firearms charges and convicted him on all counts. Thedistrict court sentenced Saikaly to a total of 360 monthsimprisonment (300 months on Counts 1, 8 and 9 and 60months consecutive on Count 7). The district court found thatSaikaly was an armed career criminal pursuant to U.S.S.G.§ 4B1.4 and assigned him criminal history category V. Inaddition, the district court found that Saikaly was responsiblefor more than 5 but less than 15 kilograms of cocaine.Saikaly appealed his conviction, raising various challenges tothe search and seizure of his home, the sufficiency ofevidence, and the admission of evidence stemming from hisarrest in New York. He also claimed a violation of theSpeedy Trial Act. This court affirmed Saikaly’s conviction,see United States v. Ross, 53 F.3d 332 (6th Cir. 1995), and theUnited States Supreme Court denied certiorari. 

Saikaly then filed a motion to vacate, set aside or correct

his sentence pursuant to 28 U.S.C. § 2255, raising four issuesas construed by the district court: 1) Saikaly’s § 924(c)

No. 98-3786 Un

D. Typographic

Saikaly complains that although 

the § 924(c) conviction, the commitment order continues to staguilty of that offense. Saikaly is coacknowledges the error as well. Athe district court should corrcommitment order pursuant to FProcedure 36, which allows for the errors.

IV.

For the foregoing reasons, w

REVERSE in part and REMAND 

accordance with this opinion.
16 United States v. Saikaly No. 98-3786

10At resentencing, the government stated that evidence indicated that

Saikaly entered the conspiracy in 1991. That would still place Saikaly’s1985 and 1986 juvenile convictions beyond the five-year limit in criminalhistory computation.

The government was correct in stating that an overt act set out in the

indictment is not the proper starting point for Saikaly’s offense; rather, theguidelines provide that the term “commencement of the instant offense”includes any relevant conduct. See U.S.S.G. § 4A1.2 cmt. n.8. Thedistrict court failed to determine when Saikaly’s relevant conductcommenced. 

The sentencing which we are speaking is the one

which took place originally. The point of our hearingtoday is to reduce that sentence by virtue of a change inthe law since the time the sentence was imposed, whichis obviously to Mr. Saikaly’s benefit. I don’t see this,unless you have some thoughts, as being a totalresentencing with a sense of recommitment to the figureshere.

In addition to that, it does not seem to me that the

recollection that I have of the testimony does notestablish, even by a preponderance of the evidence, thatthe January 29th date is the beginning of this, from thestandpoint of the guideline configuration. 

For these reasons, I think the category V is applicable

here.

J.A. at 429-30. This Court finds that Saikaly’s criminal history categorywas at issue. For the reasons set out in the previous section,the district court should have fully considered Saikaly’sargument. The district court gave a limited reason for whySaikaly was a criminal history category V: that it did notbelieve that January 29, 1992 was the date Saikaly entered theconspiracy. However, the district court failed to make aspecific finding of the date that Saikaly entered theconspiracy, or commenced the instant offense.10 This case isREMANDED for consideration of this issue. 

No. 98-3786 Unconviction was not valid after Ba

U.S. 137 (1995); 2) Saikaly’s Foubeen violated in the seizure of evitrial; 3) the evidence obtained frshould not have been admitted and Saikaly was denied effective assiston appeal. The district court vaconviction, finding that there was nor “carried” a firearm as defined b

district court agreed with Saikaly oregarding ineffective assistance ocounsel failed to object to his ccareer criminal in the presentence three underlying offenses did nooffenses or as violent felonies undcourt concluded:

Mr. Saikaly’s petition for relie

to his § 924(c) claim and his rbased on the court’s utilizapresentence report. In all other petition is denied.

The Probation Department is 

a new presentence form for Mr. new sentencing hearing will be The new presentence report orde

forth the following findings and/o

1) that a two-level enhancem

§ 2D1.1(b)(1) for possessiapplied;

2) that the amount of cocaine 

to Saikaly was more than 5 bresulting in a base offense report stated that the amattributed to himself was thovert acts set out in th
6 United States v. Saikaly No. 98-3786

kilograms, resulting in a base offense level of 28 (forat least 2 but less than 3.5 kilograms); and

3) that Saikaly was a criminal history category IV. Saikaly filed various objections to the new presentence

report and also filed a detailed memorandum in support ofhis objections. Saikaly objected to the following: theenhancement of his sentence for possession of a firearm; theamount of cocaine attributed to him; the classification as anarmed career criminal; the failure to decrease his sentence foracceptance of responsibility; the criminal history categoryover-represented the seriousness of his past; the two-levelenhancement for an aggravating role rather than a two-levelreduction for a mitigating role; and the imposition of a fine.

At sentencing, the district court noted Saikaly’s objections,

stating:

I read your brief and I think it’s marvelously well done,but, as I indicated, the purpose of the court now is not toreconfigure the sentence. The purpose of the court nowis to resentence in conjunction with the report. And inmy opinion that does not open the whole question ofsentencing, the quantity of drugs, et cetera, which I knowto be a position that you probably don’t agree with.

The district court determined that Saikaly’s behaviorwarranted the two-level enhancement for possession of afirearm. The district court briefly noted that Saikaly was acriminal history category V, vacated the § 924(c) convictionand determined that Saikaly was not an armed career criminal.The district court resentenced Saikaly to 240 monthsimprisonment. This timely appeal followed.

II.

“A court’s factual findings in relation to the application of

Sentencing Guidelines are subject to a deferential ‘clearlyerroneous’ standard of review. Legal conclusions regardingthe Guidelines, however, are reviewed de novo.” United

No. 98-3786 Un

9The guidelines provide that a crimi

juvenile sentence imposed within fivcommencement of the instant offense. S

the conspiracy allegedly started in 1convictions at issue were in 1985 and 19

conspiracy, were used as the stcount prior juvenile arrests.9

Over the years the relevant c

well, if there is any evidence thaa conspiracy since its beginning, limits vary according to when it when the person actually entere

When I did the reconsideration

act which appeared in the indictmoccurred on January 29th, 1992computed the juvenile arrestsconvictions only carry a five yea15 year, as the adults do, somarrests that have been configuredid not get points in the revised is what created a four rather tha

J.A. at 428 (footnote added).

The government disagreed, stat

before the court. The government 

I would also indicate that usistarting point because, as the coare something that the governm

The fact that the first overt ac

not square with the testimony thcase, which indicated that Mr. SJerome Gordon and Anthony Jo

J.A. at 429.

The district court apparently agr

stating:
14 United States v. Saikaly No. 98-3786

7Under the same rationale, the issues raised in subpart III.C are also

properly before this Court.

8More than 5 kilograms of cocaine requires 20 year mandatory

minimum. See 21 U.S.C. § 841(b)(1)(A)(ii). failure to make such a ruling, is indeed properly before thisCourt. 

The Court finds that the actual issues raised in subparts

III.B and C are properly before it. Accordingly, this case isREMANDED to the district court for consideration of theissue of quantity of drugs attributable to Saikaly.

C. Criminal History Category 7

Saikaly argues that the district court erred by determining

that he was a criminal history category V, rather than acriminal history category IV, as recommended in the secondpresentence report.

At the outset, there appears to be a discrepancy in the

district court’s determination. At the sentencing hearing, thedistrict court stated that Saikaly was a criminal historycategory V; however, the second judgment and commitmentorder states that Saikaly is a criminal history category IV.The district court did not rely on the guideline range asdetermined by the offense level and the criminal historycategory in sentencing because a statutory mandatoryminimum was applicable.8 Thus, it is uncertain which

criminal history category Saikaly was assigned.

At resentencing, the district court noted that there was

uncertainty as to Saikaly’s criminal history category. Theprobation officer explained why he had determined thatSaikaly was a criminal history IV rather than V:

Some of [Saikaly’s] juvenile arrests had been appliedbecause of 1988, which was the beginning of the

No. 98-3786 Un

States v. Latouf, 132 F.3d 320, 3

denied, 118 S. Ct. 1572 (1998). 

III.

A. Enhancement for Posse

The United States Sentencin

sentencing enhancement for possedrug-trafficking crime. See U.S.

enhancement does not apply when and sentenced for violating 18 U.Sso would constitute impermissib

U.S.S.G. § 2K2.4 cmt. n.2. In established that a district court has § 2D1.1(b)(1) enhancement when after the vacation of a § 924(c) cov. United States, 130 F.3d 1220, 12

that “§ 2255 gives the court jurireevaluate the entire aggregate sedefendant receives the appropriate count”). In addition, this Court haof the enhancement does not vioClause. See id. at 1222-23. 

To obtain an enhancement purs

government must show by a prepothat the defendant possessed the trafficking offense. See United St1450, 1460 (6th Cir. 1991). Once tinitial burden of showing that however, the burden shifts to the was clearly improbable that the weoffense. See United States v. McG98 (6th Cir. 1989). As the commeexplains:

The enhancement for weapon increased danger of violence possess weapons. The adjustmthe weapon was present, unless 
8 United States v. Saikaly No. 98-3786

that the weapon was connected with the offense. Forexample, the enhancement would not be applied if thedefendant, arrested at his residence, had an unloadedhunting rifle in the closet.

U.S.S.G. § 2D1.1 cmt. n.3.

Here, Saikaly argues that there was no evidence that he

possessed a firearm during the drug-trafficking offense.Saikaly’s argument wholly lacks merit. The evidenceindicated that Saikaly obtained the Glock 9mm to protect hisdrug-trafficking activities and that he showed the Glock toJohnson, one of his drug sources. In addition, the tapedconversations from Johnson’s wiretapped telephone indicatesthat Johnson told Shepard that Saikaly was carrying the Glockin a shoulder holster. Moreover, the Glock was found – alongwith $22,000 in cash – in the vehicle Saikaly was driving inNew York City. Finally, a loaded Winchester shotgun wasseized from Saikaly’s bedroom when he was arrested. Thisevidence was more than enough to support the district court’sconclusion that Saikaly possessed a firearm. 

Saikaly argues that he presented evidence “explaining” the

presence of the firearms. The evidence that Saikaly presentedwas that Lisa Gadsen owned the firearms. Saikaly’s brothertestified that Gadsen had driven the Blazer, and that Gadsenput the Glock in the glove compartment. Saikaly’s brotherfurther testified that Gadsen gave the Winchester to him,which was followed by Saikaly’s mother’s testimony that she

put the Winchester in Saikaly’s room. As the district courtstated at the resentencing hearing, “with all due respect, Idon’t think anybody in the courtroom believed what[Saikaly’s brother and mother] had to say.” 

Saikaly also seems to rely on the fact that he did not own

the firearms. This is irrelevant. The issue is not ownership,but possession of the firearms. Here, a preponderance of theevidence indicated that Saikaly possessed the firearms duringthe drug-trafficking conspiracy. Saikaly failed to show thatthe firearms were not connected to the offense. 

No. 98-3786 UnCourt to make that determinationdistrict court erred by failing to conWe find that it did. 

The Dissent would find that the q

to Saikaly and the criminal history are not properly before this Court. conclusion is that these issues were § 2255 habeas petition and therefofor appellate review. The Dissenissues that are presently before thdoes not arise from a § 2255 habefrom the sentence the district cour"new" presentence report. Saikaly failure to consider objections to thThe Dissent's assertion would be before this Court were based on hsee Chandler v. Jones, 813 F.2d 77this is not the case. 

Here, following Saikaly's succe

district court ordered the Probatio"new" presentence report. The differed in substance from the first for the first time 2.5587 kilograms to Saikaly. See Part I. After the netimely filed his objections. Specifthe quantity of drugs that were atcriminal history category he was asrefused to consider these timely sentenced Saikaly, thereby disreFederal Rule of Criminal Procedurappeal followed. 

Once the district court ordere

presentencing report, it was oblig"unresolved objections" and make findings and determinations." Fedalso United States v. Tackett, 113 1997). Saikaly's appeal, which is b
12 United States v. Saikaly No. 98-3786

6By analogy, Fed. R. Crim. P. 32(c)(3)(C), which requires district

courts to allow a defendant the right to allocution at sentencing, has beenheld not to apply at § 2255 resentencings. See Pasquarille, 130 F.3d at1223 (stating that “[t]here is nothing in § 2255 which provides that adefendant has either an absolute right to be present or a right of allocution[at resentencing]”). There is, however, a distinguishing factor betweenthis case and the Pasquarille case: the Pasquarille court noted that “there

are no disputed facts in this case.” Id. Here, we certainly have disputedfacts, which requires a different result.

With respect to a district court’s obligations at sentencing,

Federal Rule of Criminal Procedure 32(c)(1) requires adistrict court to make a factual finding for each contestedfactor of the presentence report. This circuit requires “literalcompliance” with the rule, because such factual findings help“to ensure that defendants are sentenced based on accurateinformation and provide[ ] a clear record for appellate courts,prison officials and administrative agencies who may later beinvolved in the case.” United States v. Tackett, 113 F.3d 603,

613-14 (6th Cir. 1997).6

The district court should have considered Saikaly’s

objections to the second, “new” presentence report. Thedistrict court ordered the preparation of a new report withoutlimitation, and the new report set forth a statement regardingthe amount of drugs that differed from the originalpresentence report. Saikaly filed detailed objections to thesecond presentence report prior to the resentencing hearing.Given the importance of the presentence report, district courtsshould address any objections that a defendant, or that thegovernment might have, to a “new” report that containsmaterially different information than the first presentencingreport even if these objections come during resentencing.This reasoning corresponds with this circuit’s de novoapproach to resentencing following remand after directappeal. 

Saikaly may not prevail on the merits of his argument,

because it seems fairly obvious that Saikaly could reasonablyforesee that more than five kilograms of cocaine wereattributable to the conspiracy. Nonetheless, it is not for this

No. 98-3786 Un

3The superseding indictment in the ca

that the conspiracy was responsible for w

The district court properly ap

enhancement. 

B. Quantity of 

Saikaly argues that the district 

consider his objections to tinvestigation report regarding the ato him. The government counterissue by failing to raise it on direcmotion.  The first presentence investigaSaikaly was responsible for more kilograms of cocaine. Saikaly dobjection to that finding. The construed one of his objections as pdrugs and stated that even if Saresponsible for more than 5 kilogrliable for quantities based on thoforeseeable to be involved in conspiracy itself.” This was the exfindings regarding the amount of d

In the second presentence inve

after Saikaly’s successful § 2255 magain stated that the government’s was responsible for more than 5 bucocaine. In that report, however, calculated the amount of drugindividually by adding the quantitilisted in the superseding indictmenthe amount, 2.5567 kilograms, wSaikaly believed was attributable objected to that finding (2.5567 kall of the drug amounts listed in the him should be attributed to him. 
10 United States v. Saikaly No. 98-3786

4Some circuits disagree, however, viewing a de novo approach to

resentencing as an unwarranted “second bite of the apple.” See UnitedStates v. Marmolejo, 139 F.3d 528, 531 (5th Cir.), cert. denied, 119 S. Ct.

622 (1998); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).

responsible for less than one kilogram of cocaine. Saikalyalso objected to the government’s position: that he wasresponsible for more than 5 but less than 15 kilograms. Atthe resentencing hearing, the district court did not address theissue of the amount of drugs, stating that the purpose of theresentencing hearing was limited and, thus, the amount ofdrugs attributable to Saikaly was not at issue.

At first glance, it would appear that the government is

correct – that Saikaly waived objection to the amount of drugsattributable to him by failing to raise the issue in his directappeal and in his § 2255 motion. But, there is a problem withthe government’s argument. Saikaly could not have objectedto a presentence report that had not yet been prepared.Saikaly possibly could have objected to the amount of drugsset forth in the first presentence report; nonetheless, aquestion remains: what is the district court’s responsibility inaddressing objections to a new and different presentencereport prepared for a defendant’s resentencing?

This court has clearly stated that on remand following a

direct appeal, a district court can consider de novo anyarguments regarding sentencing if the remand order does notlimit its review. See United States v. Jennings, 83 F.3d 145,151 (6th Cir. 1996) (finding that “[t]he only constraint underwhich the district court must operate, for the purposes ofresentencing, is the remand order itself. Where the remanddoes not limit the District Court’s review, sentencing is to bede novo.”). A majority of circuits agree with a de novoapproach to resentencing.4 See, e.g., United States v.Caterino, 29 F.3d 1390, 1394-95 (9th Cir. 1994); UnitedStates v. Cornelius, 968 F.2d 703 (8th Cir. 1992); UnitedStates v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991); UnitedStates v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989).The policy underlying the presumption of de novo

No. 98-3786 Un

5The government espoused this posit

presented in this appeal.resentencing is to give the disbalancing all the competing elecalculus. See United States v. Cam(6th Cir.), cert. denied, No. 99-503Oct. 4, 1999). 

Considering the foregoing, had t

after a direct appeal, the districobligated to consider Saikaly’s objreport. This case, however, arose which the district court ordered thprepare “a new presentence form.” operating from an order of remand as in the above-mentioned cases. 

The same concerns apply at rese

following direct appeal or a § 2255 a § 2255 motion, this court has heapply an enhancement to a drug sea defendant after vacating a § Pasquarille, 130 F.3d at 1222. Th

It is clear that the 924(c) offeoffense are interdependent, and components of a single comprehTherefore, § 2255 gives the authority to reevaluate the entirensure that the defendant resentence on the remaining coun

Id. (citation omitted). The gargument by stating that the “interdependent” as is the case w§ 2D1.1(b)(1). Despite this differemakes it clear that a district coresentencing, to reevaluate “the en