*After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. 

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

### JUN 27 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. BRANDON J. SMITH,

Defendant - Appellant. No. 96-3415

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D. Ct. No. 93-CR-10092)

Submitted on the briefs: * Kenneth G. Gale, Focht, Hughey & Calvert, Wichita, Kansas, for DefendantAppellant. Jackie N. Williams, U.S. Attorney, and Michael G. C hristensen, Assistant U.S. Attorney, Wichita, Kansas, for Plaintiff-Appellee.
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.- 2 -

TACHA, Circuit Judge. This appeal is from a judgment and sentence imposedupon defendant Smith after this court’s reversal of the appellant’s conv iction on Count III of an indictment under which appellant had been convictedof a firearms count subsequently reversed by the United States Supreme Court after Bailey v. United States , 116 S.Ct. 501 (1995). Defendant appeals, allegin g that the district court erred in enhancing defendant’s sentence on resenten cing pursuant to U.S. Sentencing Guidelines § 2D1.1. We affirm. Defendant was convicted after a jury trial in 1994 of a drug count and a related firearms count. At that time, defendant wa s sentenced by the district court to 63 months on the drug count and 60 months on the firearms count to run consecutively, a five-year supervised release, a fi ne of $1000, and a $100 special assessment. This court affirmed defendant’s convic tion in United States v. Smith , 63 F.3d 956 (10th Cir. 1995). The United States Supreme Court granted defendant’s petition for writ of certiorari, vacate d the judgment and remanded the case to this court for further consideration in lig ht of Bailey v. United States , 116 S.Ct. 501 (1995). Smith v. United States , 116 S. Ct. 900 (1996). Following that remand, this court reversed the defendant’s convict ion on the firearms count and remanded the case with directions that the convicti on and sentence be set aside. United States v. Smith , 82 F.3d 1564 (10th Cir. 1996). Upon remand, the district- 3 -

court resentenced defendant, setting aside the conv iction on the firearms count and finding that an enhancement on the remaining dr ug count was appropriate pursuant to U.S. Sentencing Guidelines § 2D1.1. Pr ior to the reversal on the firearms count, the district court was precluded fr om enhancing defendant’s sentence pursuant to this section. U.S. Sentencing Guidelines Manual § 2D1.1(b)(1); U.S. Sentencing Guidelines Manual § 2K2.4, comment 2. Vacating the firearms count, which charged a violat ion of 18 U.S.C. § 924(c)(1), removed the double counting problem that prevented the district court from enhancing defendant’s sentence under § 2D1.1(b)(1), at the same time it was imposing the mandatory consecutive five-year senten ce under § 924(c)(1). See United States v. Lang , 81 F.3d 955, 963 (10th Cir. 1996). In vacating defendant’s sentence following the remand from the Supreme Court, this court stated: Accordingly, we reverse Smith’s conviction under 18 U.S.C. § 924(c)(1) on Count III, and remand with directions that the conviction and sentence thereon be set aside. Smith , 82 F.3d at 1568. Defendant argues on appeal here that this language precluded the district court from adding the enhanc ement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1). Defendant argues that the use of the words “set aside” in the order from this court to the dis trict court precluded the district court from reconsidering the enhancement on the dru g count and violated the- 4 -

mandate rule upon remand. Defendant essentially ar gues that the words “set aside” mean something different from “vacate” or “r esentence” upon remand. We disagree. The use of the words “set aside” in this context have the same functional meaning as “vacate” or “resentence” for the purposes of district court consideration of a sentence upon remand. Once the sentence on the firearms charge is “set aside” the district court is no long er prohibited from considering appropriate enhancements on the remaining drug count. A sentence under the U.S. Sentencing Guidelines constitutes a sentencing package which takes into account all counts upon which the defendant has bee n convicted. When one of those counts is set aside or vacated, the district court is free to reconsider the sentencing package de novo unless the appellate cou rt specifically limited the district court’s discretion on remand. United Stat es v. Webb , 98 F.3d 585, 587-88 (10th Cir. 1996); United States v. Ortiz , 25 F.3d 934, 935 (10th Cir. 1994). The provisions of the U.S. Sentencing Guidelines operat e interdependently. Precluding the district court from reconsidering th e entire sentencing package after one count of conviction is vacated would be i nconsistent with the purposes and structure of the U.S. Sentencing Guidelines. W e therefore hold that the use of the words “set aside” are equivalent to the use of the words “vacate” or “resentence” following remand under the circumstanc es presented in this case. The judgment and sentence of the district court are AFFIRMED.