* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-8037

v. D. Wyoming LEE W. ROBERTS, also known as Kurlee Roberts, also known as Dr. Lee, Defendant - Appellant. (D.C. No. 97-CV-96)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , 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)(2); 10th Cir. R. 34.1(G). This cause is therefore ordered submitted without oral argument.-2-

Lee W. Roberts (“Petitioner”) seeks a certificate o f appealability to appeal the district court’s resentencing order, issued aft er the district court partially granted Petitioner’s 28 U.S.C.§ 2255 motion to vacate, set aside, or correct his sentence. We issue a certificate of appealability as to a portion of Petitioner’s appeal, vacate Petitioner’s sentence, and remand fo r resentencing.

BACKGROUND Petitioner is a federal prisoner appearing pro se. In the late 1980s, Petitioner chose to make a living by ferrying drugs from Las Vegas, Nevada, to the Casper, Wyoming, area. Testimony at his Wyomin g criminal trial established that Petitioner would make frequent purchases of me thamphetamine in Las Vegas and transport the substance to Wyoming, where he wo uld sell it to various customers, who would, in turn, sell it to users. I n 1990, he was arrested in Mesquite, Nevada, and charged with possession of a controlled substance in violation of Nevada law. In May 1991, Petitioner p led guilty to one count of felony possession, and was sentenced to a term of two years’ imprisonment in Nevada state correctional facilities. While he was serving this sentence, police executed search warrants on both his Las Vegas and Casper residences, and in January 1992, a nine-count indictment was filed aga inst Petitioner and several codefendants in federal district court in Wyoming. Petitioner was eventually-3-

convicted of conspiracy to possess with intent to d istribute methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b) (1)(A); possession and use of a firearm during and in relation to a drug traffick ing crime, in violation of 18 U.S.C. § 924(c)(1); and possession of methamphetami ne with intent to distribute and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. The district court found that P etitioner had possessed and sold 60 pounds of methamphetamine, resulting in a base o ffense level of 36 under the then-applicable sentencing guidelines. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(4) (1990). The district court added fou r points to his base offense level because it found he was an organizer or leade r. With a base offense level of 40 and a criminal history category of II, Petitione r fell within a range of 324-405 months’ imprisonment. The district court sentencedPetitioner to 330 months imprisonment on the conspiracy and possession count s, and to a consecutive 60-month term on the firearms charge; these sentenc es were to be followed by a 10-year period of supervised release. Petitioner appealed his convictions and sentences. He claimed that the district court’s findings that he had transported and sold 60 pounds of methamphetamine and that he had been an organizer o r leader were clearly erroneous. On appeal, we agreed with Petitioner th at the district court’s factual findings could not support the sentences, and we re versed his sentences and-4-

remanded the case to the district court to “make th e requisite factual findings.” United States v. Roberts , 14 F.3d 502, 521 (10th Cir. 1993). On remand, th e district court made more detailed factual findings, and concluded that “the total quantity of methamphetamine chargeable to the condu ct of [Petitioner] during the period encompassed by the conspiracy is 199.0 ounce s” and not 60 pounds, R. Vol. 1, Tab 513, App. B at 1, but that Petitioner h ad indeed been a leader and organizer of the conspiracy, id. at 3-5. The district court concluded that Petitioner’s base offense level should have been 34 , not 36, and, with the fourpoint enhancement, 38, not 40. With a criminal his tory category of II, this placed Petitioner in the 262-327 month range. The distric t court imposed a sentence of 262 months on the conspiracy and possession counts, and left the other portions of Petitioner’s original sentence intact. We affir med these conclusions on appeal after remand. United States v. Roberts , 43 F.3d 1484, 1994 WL 693241 (10th Cir. Dec. 2, 1994). In April 1997, Petitioner filed his § 2255 motion. The motion contained, in essence, three allegations. First, Petitioner asse rted that his conviction on the firearm charge, for which he received an additional 60-month sentence, should be set aside in light of a new Supreme Court case, Bailey v. United States , 516 U.S. 137 (1995), which held that the government must pro ve that the firearm was “active[ly] employ[ed]” during the drug transaction , and that mere possession of-5-

the firearm was insufficient to support a conviction. Id. at 148. Second, Petitioner claimed that his trial counsel had been ineffective in that he had failed to require the government to prove, at sentencing, that the methamphetamine he had transported was “d-meth” rather than the less p otent “l-meth”; sentences are much stiffer, under the Sentencing Guidelines, for d-meth than for l-meth. Third, Petitioner alleged that the government had failed t o comply with 21 U.S.C. § 851, which requires the government to file an “informati on” with the sentencing court for each prior conviction used in increasing a defe ndant’s sentence, and requires the court to ask the defendant about the previous o ffenses. Petitioner alleged that the prosecutors and the court never fully complied with § 851. Petitioner later amended his petition to include a fourth claim, ess entially asserting that he should have been given credit for time served in Nevada, w here he had been convicted of what amounted to a related offense. The district court ordered the government to respon d to Petitioner’s motion. In its response, the government conceded that Bailey dictates that Petitioner’s § 924 conviction be set aside, but argued that Bailey did not preclude an enhanced sentence on the conspiracy charge, under § 2D1.1(b) (1) of the Sentencing Guidelines, for possession of a firearm. In additi on, the government conceded that § 851 had not been complied with, but that Pet itioner was only prejudiced by this failure with respect to the period of supervis ed release. Also, the government-6-

conceded that the performance of Petitioner’s couns el was deficient, but argued that Petitioner had not been prejudiced because, ha d his counsel raised the d-meth issue, the government could have easily proven thatPetitioner’s drugs were d-meth. Finally, the government argued that Petiti oner’s credit-for-time-served argument must fail due to collateral estoppel. In March 1998, the district court partially grantedPetitioner’s § 2255 motion, setting aside the firearms conviction in light of Bailey , and reducing Petitioner’s supervised release period to five year s in light of the failure to comply with § 851. However, the district court fou nd that Petitioner’s drugs were indeed d-meth, and denied Petitioner’s ineffective assistance of counsel claim. Furthermore, the district court agreed to allow the government, at resentencing, to argue for an enhancement of the conspiracy sentence, even in light of Bailey , because Petitioner had possessed a gun during one d rug transaction. Finally, as to Petitioner’s final claim, the district court agreed to treat the Nevada conviction as “relevant conduct,” and thus did not assign crimina l history points for the Nevada conviction for sentencing purposes, dropping Petiti oner from criminal history category II to category I. R. Vol. 2, at 61-62. At the resentencing hearing, Petitioner presented the district court with a new argument–that he was entitled to a downward dep arture based on his postconviction rehabilitative efforts. The district co urt rejected this new argument,-7-

and also held that a two-level enhancement on the b ase offense level of the conspiracy and possession charges was appropriate, even though Petitioner could not be convicted under the firearm statute in light of Bailey . The district court determined that Petitioner was now in criminal hist ory category I, and had a base offense level of 40, with the two-level firearm enh ancement, placing Petitioner in the 292-365 month range. The district court senten ced Petitioner to 305 months imprisonment, with 12 months counted as already served as a result of his Nevada imprisonment on the related offense. Thus, although Petitioner succeeded in having his f irearm conviction set aside, he was also sentenced to a stiffer term on t he conspiracy and possession counts by virtue of the same acts that were insuffi cient to support his firearm conviction. When the dust had settled, Petitioner was sentenced to 29 fewer months in prison, and five fewer years on supervise d release. Petitioner now appeals from the resentencing order of the district court, arguing that he should not have been given the two- point enhancement for possession of the firearm, and that he should have been granted a downward departure based on his post-conviction rehabilitati ve activities. Petitioner does not appeal any other decisions of the district court.-8- DISCUSSION
I. The Two-Level Gun Enhancement We review the sentencing court’s application of the Sentencing Guidelines de novo, but we review the factual findings underly ing the application of the Guidelines for clear error. See United States v. Tagore , 158 F.3d 1124, 1127 (10th Cir. 1998); United States v. Underwood , 982 F.2d 426, 428 (10th Cir. 1992). Our first inquiry must be whether this case presented a proper situation for a two-point enhancement. The Sentencing Guidelines clearly grant authority f or such enhancements. Section 2D1.1(b)(1) states that “[i]f a dangerous w eapon (including a firearm) was possessed during commission of the offense,” th e base offense level is to be increased by two levels. Furthermore, we have squarely held that a district court is within its power when, after vacating firearm co nvictions under § 924 in light of Bailey , it resentences a defendant on related charges, su ch as conspiracy charges, and imposes a two-level enhancement for po ssession of a firearm pursuant to § 2D1.1(b)(1) . United States v. Mendoza , 118 F.3d 707, 709-10 (10th Cir.), cert. denied , 118 S. Ct. 393 (1997); see also United States v. Hicks , 146 F.3d 1198, 1200-1203 (10th Cir.), cert. denied , 119 S. Ct. 361 (1998). Next, we must examine the district court’s factual findings for clear error. On the record before us, we find none. We have alr eady considered, on-9-

Petitioner’s direct appeal, whether the facts suppo rted a finding that Petitioner had possessed a firearm during a drug transaction. Roberts , 14 F.3d at 517-18. Among the ample evidence present in the trial recor d was a statement from Petitioner himself that “he always carried a gun wh en conducting drug business because it’s ‘a dangerous business’”; a statement f rom the law enforcement official who searched Petitioner’s residence and fo und two weapons; and a statement from one of Petitioner’s customers that “ she saw a ‘pistol type gun’ lying on the counter” when she entered Petitioner’s motor home to consummate a drug transaction. Id. at 518. The evidence that Petitioner possessed fi rearms while conducting drug business was compelling enoug h for the jury to find him guilty under the pre- Bailey § 924 standards, and we think that the same eviden ce is, in this case, sufficient to support a two-level enhancement in Petitioner’s base offense level on his conspiracy charge under § 2D1. 1(b)(1). The district court’s decision to impose a two-level enhancement was enti rely proper.

II. Post-Conviction Rehabilitation Petitioner also argues that the district court erre d when it stated that it had no authority to consider his request for a downwarddeparture based on his postconviction rehabilitative efforts. We think Petiti oner’s contention has merit.-10-

Our first inquiry must be whether we have jurisdict ion to review the district court’s refusal to grant Petitioner a downward departure in this case. We have no jurisdiction to undertake a review of a district co urt’s decision not to depart downward, “except in the very rare circumstance that the district court states that it does not have any authority to depart from the s entencing guideline range for the entire class of circumstances proffered by the defendant.” United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). The district court, in rejecting Petitioner’s argum ent that he was entitled to a downward departure for post-conviction rehabilitative efforts, clearly stated that it did not have the authority to depart downward insuch circumstances. In arguing for such a departure, Petitioner’s counsel cited several cases from other circuits which have held that post-conviction rehab ilitation could be a permissible basis for a downward departure. R. Vol. 2, at 62-6 3. The court asked if counsel was aware of any authority within this circuit, andcounsel for the government answered that he was unaware of any such authority. Id. at 65. The court then stated that “there’s no authority for granting a do wnward departure in this circuit for . . . rehabilitation . . . that take[s] place b ehind the [prison] walls,” and that it “will deny the request for a departure based on the opinion of courts outside of this circuit.” Id. at 66, 67. Clearly, the district court felt that it lacked authority to grant a downward departure for post-conviction r ehabilitation.-11-

If the district court had intimated, even after stating that it had no authority, that if it did have authority it still would not have departed downward, then remand would be futile and would serve no purpose. See United States v. Lowe , 106 F.3d 1498, 1502 n.8 (10th Cir.) (stating that an appellate court will remand a case “only when [it] believes the district court wo uld not have reached the same sentence in the absence of the error” (citations omitted)), cert. denied , 117 S. Ct. 2494 (1997); see also United States v. Pearce , 146 F.3d 771, 775 (10th Cir. 1998) (refusing to remand a similar case for resentencing where the district court stated that resentencing was neither “required nor appropr iate”). However, in this case, the district court did not articulate any such disi nclination to refuse a downward departure on the merits, leaving us with no record upon which to base an analysis except for the expressed perceived lack of authority to consider departure. Procedural bar is also a threshold issue in § 2255 proceedings. Under ordinary circumstances, a prisoner cannot mount a c ollateral attack on his sentence. This is because most objections to a prisoner’s se ntence can be brought on direct appeal, and “[a] defendant who fails to p resent an issue on direct appeal is barred from raising the issue in a § 2255 motion ,” unless he can meet the cause and prejudice standard, or can show that a manifestinjustice will otherwise result. United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994). However, we h ave created an exception to this rule in cases involvin g a § 2255 petitioner’s claim-12-

that his § 924 conviction should be vacated in light of Bailey . Mendoza , 118 F.3d at 709-10. So, the Bailey claim leading to the Petitioner’s resentencing is not barred. Next, the scope of the resentencing proceeding here deserves some comment. Counsel for the government, at the resent encing hearing, appeared to argue that it would be improper for a district court to allow a § 2255 petitioner, on resentencing, to argue for a downward departure. See R. Vol. 2, at 65 (statement of counsel that “it would be odd” to all ow a § 2255 petitioner to “come back in under an issue like Bailey and then seek a downward departure” and urging the court to disallow such an argument). We discuss the argument here to prevent it from becoming an issue on remand. When a petitioner’s § 924 conviction and sentence have been vacated after a s uccessful § 2255 petition, we have allowed both parties, the petitioner and the g overnment, to argue for a reduced or enhanced sentence on related and “interd ependent” drug convictions. United States v. Easterling , 157 F.3d 1220, 1222-25 (10th Cir. 1998) (allowing the government to make the gun enhancement argument , but also allowing the petitioner to make an unrelated argument for a redu ced sentence based on acceptance of responsibility); see also United States v. Core , 125 F.3d 74, 76-79 (2d Cir. 1997) (allowing a § 2255 petitioner with a successful Bailey claim to argue, at his resentencing after his § 924 convicti on was vacated, for a downward-13-

departure based on post-conviction rehabilitation), cert. denied , Reyes v. United
States , 118 S. Ct. 735 (1998). This is because, when a p etitioner’s § 924 conviction and sentence are vacated after a successful Bailey claim, courts will treat all “interdependent” drug convictions as partof the same vacated “sentencing package.” Easterling , 157 F.3d at 1223 (citing Hicks , 146 F.3d at 1203). We have stated that when a district court v acates a § 2255 petitioner’s sentence, that petitioner stands “in the position o f a defendant who had pleaded guilty to a charge against him, had originally brie fed the sentencing issues, and was awaiting sentence.” United States v. Moore , 83 F.3d 1231, 1235 (10th Cir. 1996). The district court, however, has discretion to “det ermine the appropriate scope of the resentencing proceedings.” Moore , 83 F.3d at 1235. Accordingly, after vacating a § 924 conviction, a district courtmay limit the scope of the sentencing proceedings to certain issues, but it “i s entitled to revisit a petitioner’s entire sentence, not just the challenged portion.” Easterling , 157 F.3d at 1224. Thus, it was proper for the district court to consi der Petitioner’s resentencing claim. Finally, as to the merits of the central issue befo re us on appeal, we must determine whether the district court erred when it stated that it had no authority to depart downward based on post-conviction rehabilitation. At the time of the1 Every other circuit to consider the issue has held that post-offense, postconviction, or post-sentencing rehabilitation may b e a proper basis for a downward departure. United States v. Green , 152 F.3d 1202, 1206-08 (9th Cir. 1998) (post-sentencing rehabilitation); United Stat es v. Rhodes , 145 F.3d 1375, 1378-82 (D.C. Cir. 1998) (post-conviction rehabilit ation); United States v. Kapitzke , 130 F.3d 820, 823-24 (8th Cir. 1997) (post-offens e rehabilitation); United States v. Core , 125 F.3d 74, 76-79 (2d Cir. 1997) (post-convictio n rehabilitation), cert. denied , Reyes v. United States , 118 S. Ct. 735 (1998); United States v. Sally , 116 F.3d 76, 79-82 (3d Cir. 1997) (post-convictio n rehabilitation); United States v. Brock , 108 F.3d 31, 33-35 (4th Cir. 1997) (post-offense rehabilitation). We see “no reason to distinguish between post-offense and postconvictionrehabilitation efforts in this context–post-convic tionrehabilitation efforts are, by definition, post-offense rehabilitation efforts and hence should be subject to at least equivalent treatment under the Guidelines.” Sally , 116 F.3d at 80.

-14- sentencing hearing, the district court was correct in stating that there was no authority within this circuit for such departures. Since the sentencing hearing, however, we have held that post-offense rehabilitat ive efforts “may provide a basis for departure.” United States v. Whitaker , 152 F.3d 1238, 1240 (10th Cir. 1998). 1 We grounded this holding in Koon v. United States , 518 U.S. 81 (1996), which held that “only those factors on which the [S entencing] Commission has forbidden reliance,” such as drug or alcohol depend ence, race, sex, national origin, religion, etc., “never may provide an appro priate basis for departure.” Whitaker , 152 F.3d at 1240 (citing United States v. Brock , 108 F.3d 31, 34 (4th Cir. 1997) (citing Koon , 518 U.S. at 93)). Thus, because the Sentencing Guidelines nowhere forbid courts to depart downwardon the basis of post-2 Petitioner does not challenge the district court’s determination to use the

1990 Guidelines Manual.

3 Other circuit courts which have examined this issue have concluded that post-conviction rehabilitation falls into the firstcategory–an encouraged factor already taken into account by the Guidelines. See , e.g. , United States v. Rhodes , 145 F.3d 1375, 1383 (D.C. Cir. 1998); United States v. Sally , 116 F.3d 76, 80 (3d Cir. 1997). In current Sentencing Guideline Manual s, Guideline § 3E1.1, dealing with acceptance of responsibility, expressly lists “post-offense rehabilitative efforts” as an “appropriate consideration” in makin g acceptance of responsibility determinations, see U.S. Sentencing Guidelines Manual § 3E1.1, application note 1(g) (1998), and therefore other circuit courts hav e held that, in order for a court to depart downward based on post-conviction or post -offense rehabilitative conduct, “that factor must be present ‘to such an e xceptional degree that the situation cannot be considered typical of those cir cumstances in which the acceptance of responsibility adjustment is granted. ’” Rhodes , 145 F.3d at 1383 (quoting Sally , 116 F.3d at 80); see also Core , 125 F.3d at 78 (stating that “[a]cceptance of responsibility is easily achieved and is accordingly of relatively low value” and that “[d]efendants who accomplish a successful rehabilitation go far beyond what is required to qualify for the dedu ction under § 3E1.1”). -15- conviction rehabilitation, the district court incor rectly concluded that it had no authority to depart downward on that basis. Factors not forbidden by the Commission fall into o ne of several categories: such factors are either (1) encouragedby the Commission as a basis for departure; (2) discouraged by the Commission as a basis for departure; or (3) not mentioned at all by the Commission. Koon , 518 U.S. at 95. In the 1990 Sentencing Guidelines Manual, which is applicable to this case, see R. Vol. 3, at 3, 2 post-offense or post-conviction rehabilitation is nowhere mentioned. 3 Thus, this factor falls into Koon ’s final category–unmentioned factors. Koon instructs sentencing courts to depart on the basis of such fa ctors only where “the structure-16-

and theory of both relevant individual guidelines and the Guidelines taken as a whole” persuade the court “to take the case out of the Guideline’s heartland.”
Koon , 518 U.S. at 96. Departures based on unmentioned factors “will be ‘highly infrequent.’” Id. (citations omitted). In concluding that Koon and Whitaker authorize downward departures on the basis of post-conviction rehabilitation, we do not mean to intimate that Petitioner deserves such a departure. The decisionto grant a departure rests in the sound discretion of the district court. If, on remand, the district court refuses to grant the departure, we will be without jurisdic tion to review that refusal. Castillo , 140 F.3d at 887.

CONCLUSION Therefore, we conclude that the district court prop erly imposed a two-level enhancement on the conspiracy and possession senten ces, and, as to that portion of Petitioner’s appeal, DENY a certificate of appea lability. However, we also conclude that the district court incorrectly assume d that it had no authority to grant a downward departure for post-conviction rehabilitation, and, as to that portion of Petitioner’s appeal, we therefore GRANT a certificate of appealability, VACATE Petitioner’s sentence, and REMAND that the c ase to the district court for resentencing.-17- ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge