*This order and judgment is not binding precedent, except under the doctrines of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

### OCT 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ROBERT L. HAGER, Defendant-Appellant. No. 97-6049 (D.C. No. 91-CR-50) (W.D. Okla.)

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 materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Robert L. Hager appeals the resentencing order of t he district court. Specifically, Hager argues the court did not have j urisdiction to resentence him in1 Although Hager possessed a firearm in connection with his drug trafficking

offense, he did not receive a two-level enhancement in his base offense level when he was originally sentenced on Counts 1 and 2 because he was also convicted in Count 3 of using or carrying a firearm during and in relation to a drug trafficking offense. The guidelines specifically instruct the district court not to apply an enhancement in this situation because it would result in "double counting." See U.S.S.G. § 2K2.4 comment (n.2). -2- a 28 U.S.C. § 2255 proceeding and that resentencing violated his due process rights and resulted in double jeopardy. We affirm. On July 9, 1991, Hager was convicted of (1) possess ion with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (a)(1); (2) being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g); and (3) using or carrying a firearm in relation to a drug traffickin g crime, in violation of 18 U.S.C. § 924(c). He was sentenced to 165 months' imprison ment on Count 1 and 120 months' imprisonment on Count 2, to be served concu rrently. 1 In addition, Hager was sentenced to 60 months' imprisonment on Count 3 , to be served consecutively with his concurrent sentences. His convictions wer e affirmed in United States v. Hager , 969 F.2d 883 (10th Cir. 1992). On July 22, 1996, Hager filed a motion to vacate, s et aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The distric t court vacated his sentence for using or carrying a firearm in relation to a drug t rafficking crime based on Bailey v. United States , 116 S. Ct. 501 (1995), and resentenced him on Cou nts 1 and 2. In resentencing Hager to 188 months' imprisonment, the court enhanced his base2 Mendozais in accord with the majority of the other circuits that have addressed

the issue. See118 F.3d at 709. See alsoUnited States v. Gordils , 117 F.3d 99, 102-04 (2d Cir. 1997); United States v. Mixon , 115 F.3d 900, 903 (11th Cir. 1997). -3- offense level because he possessed a firearm during the offenses. See U.S.S.G. § 2D1.1(b)(1). This court recently held that a district court has jurisdiction in a 28 U.S.C. § 2255 proceeding to resentence a defendant on rela ted remaining convictions after vacation of a conviction. See United States v. Mendoza , 118 F.3d 707, 708 (10th Cir. 1997). 2 In Mendoza , this court also rejected the argument that resentencing a defendant in a § 2255 proceeding to a greater sentence violates due process or results in double jeopardy. Id. at 710 (double jeopardy and due process not violated when defendant originally sentenced to 87 months and, after vacation of § 924(c) conviction, resentenced to 108 months). Such a defendant "does not have a legitimate expectation of finality in a rela ted, but unchallenged sentence." Id. AFFIRMED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge