* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and 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 

### NOV 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 96-3379

v. D. Kansas EDITH FAYE WACKER, also known as Edie Wacker,

Defendant - Appellant. (D.C. No. 92-CR-40042)

ORDER AND JUDGMENT *

Before ANDERSON , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. Edith Faye Wacker pleaded guilty to one count of co nspiracy to possess with the intent to distribute marijuana in violatio n of 21 U.S.C. § 846 and to one-2-

count of unlawful use of a firearm during and in re lation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On appea l, we remanded Wacker’s sentence “with instructions that the district courtspecifically articulate the factual basis and findings necessary for imposing the ‘mana ger or supervisor’ enhancement under USSG § 3B1.1(b).” United States v. Wacker , 72 F.3d 1453, 1480 (10th Cir.), cert. denied , 117 S. Ct. 136 (1996). Prior to resentencing, Wacker filed a motion pursua nt to 28 U.S.C. § 2255 seeking to vacate the conviction and sentence impos ed on the § 924(c) count. The government conceded that there is an insufficient f actual basis for her guilty plea, and the district court accordingly vacated Wacker’s conviction and sentence as to the § 924(c) violation. The court then resentenced her and included a two-level enhancement pursuant to USSG § 2D1.1(b)(1) for poss ession of a firearm during a drug trafficking offense. Wacker argues that the district court violated our mandate by conducting resentencing on issues not de cided in the direct appeal and that the district court lacked jurisdiction to rese ntence her on a count of conviction not challenged in her § 2255 motion. While we agree with Wacker that our mandate was lim ited to resentencing on the specific issue of the “manager or supervisor ” enhancement under USSG § 3B1.1(b), see United States v. Webb , 98 F.3d 585, 587-88 (10th Cir. 1996), cert. denied , 117 S. Ct. 1097 (1997), her subsequent filing of a § 2255 motion-3-

broadened the scope of the resentencing. When the district court has itself vacated a count of conviction pursuant to a § 2255 motion, it has jurisdiction to determine the scope of resentencing. See United States v. Moore , 83 F.3d 1231, 1235 (10th Cir. 1996). And in United States v. Men doza , 118 F.3d 707, 709-10 (10th Cir.), cert. denied , 1997 WL 612704 (U.S. Nov. 3, 1997), we specifical ly held that in a § 2255 proceeding the district courthas jurisdiction to enhance the sentence pursuant to USSG § 2D1.1(b)(1) after vacat ing a § 924(c) conviction. We therefore agree with the district court that “itis unnecessary in the context of evaluating Edith Wacker’s § 2255 motion for the cou rt to consider whether it is constrained by the Tenth Circuit’s mandate from enh ancing her sentence pursuant to § 2D1.1(b)(1),” United States v. Wacker , 1996 WL 596744, at *2 (D. Kan. Sept. 16, 1996), and that her sentence was properlyenhanced upon resentencing. Accordingly, the sentence imposed by the district c ourt is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge