* District Judges of the Eastern District of Texas, sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30878

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUSTAVO PERDOMO RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

May 20, 1997

Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and JUSTICE, * District Judge.

POLITZ, Chief Judge:

Gustavo Perdomo Rodriguez challenges the dist rict court’s authority to

resentence him after his convictions under 18 U.S.C. § 924(c)(1) were vacated.

Concluding that the district court had the authority under 28 U.S.C. § 2255 to

resentence Rodrigue z and that it did not violate the double jeopardy clause by

doing so, we affirm.1 21 U.S.C. § 846 and 841.

2 18 U.S.C. § 924(c)(1).

3 116 S.Ct. 501 (1995).

4 Section 2D1.1(b)(1) provides that “[i]f a dangerous weapon (including a firearm) was

possessed [during the commission of a drug offense], increase [the defendant’s base

offense level] by 2 levels.”

2 BACKGROUND

In 1990, Rodriguez pled guil ty to conspiracy to distribute and possession

with intent to distribute two kilograms of c o caine. 1 In addition, a jury convicted

Rodriguez of using a machine gun, a shotgun, and a revolver during the

commission of the offenses

. 2 The district court sentenced Rodriguez to

imprisonment for 115 months for the two drug offenses, 30 years for the use of the

machine gun and 5 years for the use of the shotgun and revolver.

After the Supreme Court decided Bailey v. United States, 3 Rodriguez filed a

section 2255 petition seeking the vacating of his convictions on the two firearm

offenses. The district court agreed but, at the urging of the government,

resentenced Rodriguez on the two drug offenses, appl y ing the two-level

enhancement provided for in section 2D1.1(b)(1 ) of the Sentencing Guidelines. 4

As a result, the sentence imposed for the drug offenses increased from 115 to 137

months imprisonment. Rodriguez timely appealed.

ANALYSIS

Rodriguez’s s ection 2255 petition urging the B ailey holding necessarily5 Section 924(c)(1) requires a consecutive term of imprisonment upon conviction,

while sections 846 and 841 require a two-level sentence enhancement upon conviction.

The consecutive term of imprisonment and the two-level sentence enhancement cannot,

however, be imposed simultaneously. See Sentencing Guidelines § 2K2.4 Application

Note 2 (“Where a sentence under [section 924(c)(1)] is imposed in conjunction with a

sentence for an underlying offense, any specific offense characteristic for

the...use...of...[a] firearm...is not to be applied in respect to the guideline for the

underlying offense.”).

3 challenged only his convictions under section 924(c)(1). There was no attack on

his convictions under sections 846 and 841. Rodriguez contends that the district

court had only the power to alter the sentences imposed under the section 924(c)(1)

convictions. We are not persuaded.

Section 924(c)(1) and sections 846 and 841 share a commonality; all provide

punishment for the same conduct

-- th e use of a firearm during a drug offense. 5

Limitations, however, ap ply to the imposition of that punishment. When a

conviction results in a section 924(c)(1) charge as well as a charge under either or

both sections 846 and 841, the imposition of the mandatory, consecutive sentence

under section 924(c)(1) trumps consideration of that conduct in the computation of

the sentence for the other conviction(s). Rodriguez was convicted of two section

924(c)(1) firearm offenses and two drug offenses under sections 846 and 841. The

existence of the firearms was co nsidered only in the firearm count sentences.

Rodriguez challenged those convictions in his section 2255 petition.

Reviewing the section 2255 challenge in light of Bailey the district court

correctly concluded that the two convictions for 924(c)(1) violations were invalid.

The sentences imposed thereunder were vacated as not authorized by law. The

court then proceeded to correct the sentences imposed, as authorized and directed6 Our colleagues in five other circuits have likewise held that the language of section

2255 vests district courts with the power to resentence defendants who successfully

challenge section 924(c)(1) convictions. See United States v. Rodriguez , 1997 WL

203301, ___ F.3d ___ (1st Cir. 1997); United States v. Davis , 1997 WL 195397, ___

F.3d ___ (3d Cir. 1997); United States v. Hillary , 106 F.3d 1170 (4th Cir. 1997); United

States v. Smith , 103 F.3d 531 (7th Cir. 1996); and United States v.

Harrison, 1997 WL 232266, ___ F.3d ___ (8th Cir. 1997).

7 101 S.Ct. 426, 438 (1980) (“Although it might be argued that the defendant perceives

the length of his sentence as finally determined when he begins to serve it, and that the

trial judge should be prohibited from thereafter increasing the sentence, that argument has

no force where...there can be no expectation of finality in the original sentence.”).

8 812 F.2d 196, 198 (5th Cir.), cert. denied , 108 S.Ct. 165 (1987). See also United

States v. Greenwood, 974 F.2d 1449 (5th Cir. 1992), cert. denied 113 S.Ct. 2354 (1993);

United States v. Crawford , 769 F.2d 253 (5th Cir. 1985), cert. denied 106 S.Ct. 887

(1986).

4 by section 2255 which provides:

If the cou rt finds that...the sentence imposed was not authorized by

law...the court shall...correct the sentence as may appear appropriate.

In resentencing, the trial court did not err by considering the firearms in its

guidelines computation of the sentencing range. 6

Rodriguez maintains that consideration of th e firearms in resentencing

constitutes a violation of the d ouble jeopardy clause. We do not agree. That

constitutional guarantee does not pr oscribe the resentencing of a defendant. Rather,

as the Supreme Court taught in United States v. DiFr ancesco , it prohibits

resentencing only if a defendant has developed a legitimate “expectation of finality

in [his] original sentence.” 7 Rodriguez did not have such an expectation for he

challenged two of his four interrelated convictions, placing the validity of his entire

sentence at issue. As we held in U nited States v. Colunga

, 8 citing DiFrancesco and9 395 U.S. 711 (1969).

10 In urging that his resentencing violated the double jeopardy clause Rodriguez relies

on Chandler v. United States , 468 F.2d 834 (5th Cir. 1972). In Chandler we held that the

resentencing of a defendant on an unchallenged conviction violated the double jeopardy

clause. Chandler

was decided before the Supreme Court announced the “expectation of

finality” test in DiFrancesco. We must, therefore, view Chandler and its progeny, United

States v. Naas , 755 F.2d 1133 (5th Cir. 1985) and United States v. Larson , 625 F.2d 67

(5th Cir. 1980), through the prism of the holding in

DiFrancesco and follow that teaching and our decisions based thereon.

5 North Carolina v. Pearce

, 9 the defendant “had no reasonable expectation of finality

in the original sentence imposed on ei ther count, since he had himself sought to

nullify the sentencing plan by overturning one of [his] two convictions.” We

therefore conclude and hold that the double jeopardy clause was not implicated in

the resentencing of Rodriguez. 10

The judgment appealed is AFFIRMED.