United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3133

___________ Billy Ralph Cooper, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. United States of America, * * Appellant. *

___________ Nos. 96-3134/3344

___________ Larry Roberson, * * Appellee/Cross-Appellant, * * Appeals from the United States v. * District Court for the * District of Minnesota. United States of America, * * Appellant/Cross-Appellee. *

___________ Submitted: October 22, 1997 Filed: November 25, 1997

___________The Honorable Rodney Webb, Chief Judge, United States District Court for the 1 District of North Dakota, sitting by designation. -2- Befo re BEAM and FLOYD R. GIBSON, Circuit Judges, and WEBB, Chief District 1 Judge.

___________ BEAM, Circuit Judge. In these consolidated 28 U.S.C. § 2255 petitions, prisoners Billy Ralph Cooper and Larry Roberson sought to vacate their convictions and sentences under 18 U.S.C. § 924(c)(1), in light of the Supre me Court's decision in Bailey v. United States , 116 S. Ct. 501 (19 95). The district court vacated the 924(c)(1) convictions, but denied th e government's request for resentencing on the underlying drug charges with application of the two-level sentencing e nhancement for possession of a firearm prescribed by the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(b)(1). The government appeals the denial of it s resentencing motion. Roberson also filed a cross-appeal. We affirm in part, and remand to the district court fo r reconsideration in light of United States v. Harri son , 113 F.3d 135 (8th Cir. 1997), and Gardiner v. United States , 114 F.3d 734 (8th Cir. 1997), cert. denied sub nom. , Gutierre z-Silva

v. United States , 66 U.S.L.W. 3282 (U.S. Oct. 14, 1997) (No. 97

- 5834).
I. BACKGROUND Petitioners Cooper and Roberson were convicted on various drug poss ession and conspiracy charges and sentenced to 121 and 235 months imprisonment, respectively. Both received an additional sixty-month sentence for using a firearm during a dru g trafficking crime in violation of 18 U.S.C. § 924(c)(1). The Sentencing Guidelines-3-

provi de that a drug sentence shall be enhanced by two levels if a dangerous weapo n was posse ssed. See U.S.S.G. § 2D1.1(b)(1). At the original sentencings in 1990 , petitioners' sentences were not affected by this provision because the Guideline s prohibit the enhancement when a defendant is also convicted of the gun offense defined in section 924(c)(1). See U.S.S.G. § 2K2.4 comment. (n.2). Section 924(c)(1) makes it unlawful to "use[] or carr[y] a firearm" in relation to a drug offense. At the time petitioners were convicted, this court maintained that mere evidence of proximity of the firearm to drugs or drug proceeds was su fficient to support a con viction under the statute. See, e.g. , United States v. LaGuardia , 774 F.2d 317 , 321 (8th Ci r. 1985); United States v. Matra , 841 F.2d 837, 843 (8th Cir. 1988). I n 1995, while Cooper and Roberson were serving their sentences for the drug charges, the Supreme Court held that the government must show active employment of th e firearm in order to prove "use" within the meaning of 924(c )(1). See Bailey , 116 S. Ct. at 509. Thereafter, Cooper and Roberson filed actions under 28 U. S.C. § 2255 seeking to vacate their 924(c)(1) convi ctions. The United States conceded in the district court that the 924(c)(1) convictions should be vacated pursuant to Bailey , but requeste d resentenci ng on the underlying drug convictions, in order to apply the two-leve l enhance ment

set out in section 2D1.1(b)(1). With respect to both petitioners, th e district co urt granted the motion to vacate the 924(c)(1) conviction, but denied th e government's motion for resentencing.
II. DISCUSSION At the time of the district court's decision, the law regarding the court's authority to re sentence on the drug convictions was unclear. Since then, Harrison , 113 F.3d at 138, and Gar diner , 114 F.3d at 735, have held that "in an action under 28 U.S.C. § 2255, a district court has authority to resentence a prisoner on a drug traffickin g convictionafter vacating a related conviction for using a firearm in relation to a drug offense in violation of 18 U.S.C. § 924(c)." Gardiner , 114 F.3d at 735. This is-4-

controlling precedent on the question whether the district court could have enhanced the drug sentences of Cooper and Roberson pursuant to the government's motion. Cooper an d Roberson urge us to affirm the decision of the district court notwithsta nding Harrisonand Gardiner . They argue that the court denied th e go vernment's enhancement motion on the merits, not on grounds of lack of authority. Aftercar efully reviewing the transcript of the district court proceedings, we canno t agree that the court's decision was based solely on the merits of the government' s motion. T he parties argued extensively regarding the court's authority to reopen th e unattacked dru g sentences. See Tr. at 4-8. At one point, the government requested a stay of t he district court's order pending resolution of the authority question by thi s cou rt. See Tr. at 18. Counsel for Roberson informed the district court that "two o r three cases [are] already docketed in the circuit on [the authority] issue, so it's going to get decided relatively soon." Tr. at 20. In addition, the court expressed a n under standing that the finality of the order issued with respect to Cooper was subject to the gove rnment's decision to appeal and to the outcome of the authority question

. See Tr. at 23. We are convinced that both the parties and the court considered th e Harrison/ Gardiner

authority issue to be a determining factor.
We do not di spute that the district court questioned the propriety of the gu n enha ncement

for some or all of the defendants in this case. However, Harrisonan d Gard iner now give an unequivocal answer to the district court's concern over it s authority to resentence. Accordingly, we remand these cases to the district court for reconsideration in light of Harrisonand Gardiner

. We have reviewed Roberson's other arguments on appeal, including his claim of ine ffective assistance of counsel, and we conclude that they are without merit. W e theref ore affirm the district court's denial of the motion to vacate Roberson's dru g sentences.-5-

III. CONCLUSION For the foregoing reasons, we affir m in part, and remand to the district court for reconsideration. A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.