United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-2544WM

_____________ United States of America, * * Appellee, * Appeal from the United Sta tes * District Court for the Wester n v. * District of Missouri. * Charles H. Harrison, Jr., also * known as Chuck, * * Appellant. *

_____________ Submitted: March 11, 1997 Filed: May 9, 1997

_____________ Before FAGG, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________ FAGG, Circuit Judge.

Ch arles Harrison pleaded guilty to conspiracy to distribut e cocaine base, see 21 U.S.C. §§ 841(a), 846 (1994), and using a gun during the drug crime, see 18 U.S.C. § 924(c). The district court sentencedHarrison to 121 months for the drug offense and sixt y consecutive months for the gun offense. After Harrison lost hi s direct appeal, the Supreme Court decided Bailey v. United States , 116 S. Ct. 501 (1995), which narrowed the definition of “using” a firearm within the meaning of § 924(c). With this new ammunition, Harrison filed a 28 U.S.C. § 2255 motion to vacate his gu n
sen tence. The Government conceded Harrison’s underlying gu n convictionshould be reversed in light of Bailey , but argued th e di strict court should enhance Harrison’s drug sentence for hi s possession of a firearm. See U.S. Sentencing Guidelines Manual §-2-

2D1.1(b)(1) (1996). Because the Guidelines bar the § 2D1.1(b)(1) enhanc ement as double counting when a defendant is convicted o f violating § 924(c), see id. § 2K2.4 n.2; United States v. Friend , 101 F.3d 557, 558-59 (8th Cir. 1996), the district court did no t
cons ider whether the enhancement applied at Harrison’s origina l sentencing.
Following a resentencing hearing, the district court vacated the si xty month term originally imposed on the erroneous gu n convic tion. The district court found the firearm possessio n enhanc ement applied and imposed a revised term of 151 month s impris onment on the drug conviction, thirty months less tha n Harris on’s total original sentence. The district court tol d Har rison, “The sentence [imposed] today is the sentence that yo u would have received [on the drug charge at your original sen tencing in May 1992] had there not been a gun count mandating a cons ecutive five y ear sentence . . . .” Harrison appeals his revised dru g sentence. We affirm.

Be cause Harrison did not challenge the drug conviction o r sentence in his § 2255 motion, Harrison contends the distric t court lac kedjurisdiction to resentence him on the drug conviction an d should have simply vacated his erroneous gun sentence. If H arrison hadsuccessfully attacked his gun conviction on direct appea l rather than collaterally, our earlier cases would permit hi s resentencing. We have held that when Baileyrequires reversal of
a § 924(c) conviction on direct appeal, the district court ma y consider whether an unchallenged drug sentence should be enhanced for possession of a firearm. See United States v. Behler , 1 00 F.3d 632, 640 (8th Cir. 1996); United States v. Rehkop , 96 F.3d 3 01, 306 (8th Cir. 1996); United States v. Thomas , 93 F.3d 479, 488 (8t h Cir. 1996). In this case, we must decide whether similar-3-

resentencing is permissible after reversal of a gun conviction in
a collateral proceeding. Agreeing with the circuits that hav e decidedthe issue, we conclude the district court had power t o resentence Harrison on his drug conviction. See United States v. Bi nford , No. 96-2419, 1997 WL 91851, at *6-7 (7th Cir. Mar. 4 , 19 97)(28 U.S.C. § 2255 confers jurisdiction); United States v

. Hillary , 106 F.3d 1170, 1171-73 (4th Cir. 1997) (same); see als o United States v. Handa , No. 96 -16468, 1997 WL 134095, at *1-2 (9th Cir. Mar. 26, 1997) (holding circuit precedent and governmen t concessionprevented adoption of view that § 2255 permit s
res entencing after reversal of § 924(c) conviction, but court o f appeals had authority under 28 U.S.C. § 2106 to vacate defendant’s entire sentence and remand for resentencing on drug conviction).

The di strict court can modify a previously imposed term o f imprisonment if expressly permitted by statute. See 18 U.S.C. § 3582(c )(1)(B) (1994). Harrison contends § 2255 does not permi t modificationof his drug sentence. We disagree. Section 225 5 provides: A prisoner in custody under sentence . . . claiming the rig ht to be released upon the ground that the sentenc e was imposed in violation of the Constitution or laws of the United States . . . may mo ve the court which imposed th e sentence to vacate, set aside or correct th e sentence. . . . If the court finds that . . . th e sentence imposed was not authorized by law . . . th e court shall vacate and set the judgment aside and shall di scharge the prisoner or resentence [the prisoner] o r grant a new trial or correct the sentence as may appear appropriate.
The statute gives district courts broad and flexible remedia l authority to resentence a defe ndant and to correct the sentence as appropriate. See Hillary , 106 F.3d at 1171. A remedy that seems appro priate is to put § 2255 defendants in the same position a s defendants on direct appeal by permitting resentencing, see id. at-4-

1172, an d to impose a sentence that would have been rendered bu t for the challenged error. Whe ther the district court has power to do so depends on the breadth of the term “sentence” in § 225 5. See Binford , 1997 WL 91851, at *6. Reading the statute narrowly , Harris oncontends § 2255 only authorizes modification of th e specific term of imprisonment associated with the single count of convictionattacked, here, the gun sentence. On the other side , the Government contends that when Harrison filed his § 2255 motion challenging the legality of his gun conviction, he put in is sue all interdependent components of his total sentence.
Because the mandatory sixty mo nth term for the gun conviction
an dthe firearm enhancement on the drug conviction ar e int erdependent, the terms of imprisonment imposed on the gun an d dru g convictions constitute a “sentence” within the meaning of § 2255. See Binford , 1997 WL 91851, at *6; Hillary , 106 F.3d a t 1172. The district court originally took Harrison's gun pos session in to account by sentencing him for using a gun during the dru g crime, which directly prevented the court from enhancing Har rison's drug sentence for firearm possession. Once the district cour t
vac atedthe term imposed on the erroneous gun conviction, th e district court could appropriately correct Harrison' s interdependent drug term by ap plying the firearm enhancement. See Binford , 1997 WL 91851, at *7; Hillary , 106 F.3d at 1172-73.

Harrisonasserts application of the enhancement o n resentencing violates double jeopardy because he has already served part of th e drug term. The Double Jeopardy Clause prevents a sentencing court from increasing a defendant’s sentence after the defend ant has developed a legitimate “expectation of finality i n the or iginal sentence.” United States v. DiFrancesco , 449 U.S

. 117, 139 (1980). When a defendant challenges one of at least two-5-

interdependent sentences, however, the defendant has effectivel y cha llengedthe interwoven sentencing plan. See Binford , 1997 W L 91851 , at *7-8; United States v. Shue , 825 F.2d 1111, 1115 (7t h Cir. 1987). Because the defendant has no legitimate expecta tion of finality in any discrete part of an interdependent sentence after
a part ially successful appeal or collateral attack, there is n o double jeopardy bar to enhancing an unchallenged part of a n inte rdependent sentence to fulfill the court's original intent

. See Binford , 1997 WL 91851, at *7-8; Handa , 1997 WL 134095, at *2; Shue , 825 F.2d at 1115. Since Harrison has served less than 12 1 months of his original drug term, we need not decide whether double jeopardy bars resentencing of a § 2255 petitioner on fully served parts of an interdependent sentence. Compare Woodhouse v. United State s , No. 96-3112, 1997 WL 125930, at *1-2 (7th Cir. Mar. 20 , 1997) (no expectation of finality in fully served drug term) with Warner v. United States , 926 F. Supp. 1387, 1393-94 (E.D. Ark

. 1996) (expectation of finality in fully served drug term).

La st, Harrison contends the Government is seeking the gu n possession enhancement to pena lize him for filing a § 2255 motion, and thus, his resentencing violates his right to due process. We find n o evidence of vindictiveness in Harrison’s resentencing

. Har rison’s total sentence has been reduced by almost three year s and th e district court resentenced Harrison according to th e court’s original sentencing plan. See Shue , 825 F.2d at 1115-16. In these circumstances, we conclude Harrison’s resentencing doe s not violate due process.
Imposing a sentence that the Guidelines make appropriate for Harrison’s conduct is not fundamentally unfair. Harrison po ssessed
a gun during the drug conspiracy, and the enhancement for it s possession was blocked at his original sentencing only by his-6-

sep arate § 924(c) gun conviction, which was later deemed legall y unsound. If we did not permit resentencing of defendants wh o successfully challenge § 924(c ) convictions in § 2255 proceedings, they would receive lighter sentences than defendants wh o successfully attack their § 924(c) convictions on direct app eal and can be resentenced. Permitting resentencing on the drug conviction simplyputs Harrison back in the situation he would have face d under the law at the time of his arrest had the erroneous gu n charge not been brought. See Handa , 1997 WL 134095, at *2.

We affirm the district court.
HEANEY, Circuit Judge, dissenting.

I diss ent because, in my view, the district court lack s jurisdiction to enhance Harrison’s sentence for the drug conviction that he did not challenge in this collateral appeal. Regard less of whether it “seems appropriate to put § 2255 defendants in the same pos itionas defendants on direct appeal by permittin g resentencing,” Majority Op., supra , at 3, there is simply n o legal basis on which to do so at this stage of the proceedings.
Section 2255 permits a prisoner to move the district court f or relief if he believes his sentence is unconstitutional and th e statute expressly provides the court with authority to vacate, set aside, or correct “the sentenc e.” Thus, I agree with the majority insofar as it asserts that the district court’s power to res entence Harrison on the unchallenged conviction depends on the breadth of the term “the sentence” in sec tion 2255. I am convinced, however, that in the context of the ent ire provision, the term’s meaning is clearly limited to only the sentence specifically challengedby the defendant on collateral appeal. “The sentence” is used in the-7-

statute to define the scope of a challenge under section 225 5 (i.e., a prisoner’s claim “that the sentence was imposed i n violationof the Constitution or laws of the United States”) an d again, to establish the relief that the district court can afford if the claim has merit (i.e., if “ the sentence imposed was no t authorized by law . . . the court shall vacate and set the j udgment asid e and shall discharge the prisoner . . . or correct th e sentence as may appear appropriate.”). For the statute to mak e sense, “the sentence” must have a constant meaning and, read ing the provis ionas a whole, that meaning is logically limited to th e sentence collaterally challenged by the prisoner. Because H arrison does not challenge either his conviction or sentence on the dru g count, that sentence simply is not before the district court i n this section 2255 proceeding.
Moreover, the language of section 2255 expressly provides th at relie f under the statute is available only to a prisoner in th e custody of the United States. The only party seeking “relie f” with respect to the drug conviction (assuming for the sake of argument that an increased drug sentence can be called “relief” for thes e purposes) is the government. I agree with the observation made by Judge Eisele that, “no matter how hard one tries, one simply cannot shoehornthe United States into the class of persons who ar e entitledto seek relief under [section 2255].” Warner v. Unite d States , 926 F. Supp. 1387, 1398 (E.D. Ark. 1996). In fact, given that only a prisoner is entitled to relief under section 225 5, I am hard-pressed to envision a circumstance in which a district court woul dever use section 2255 to enhance a previously-impose d sentence
. I firmly believe that if a section 2255 movant elect s not to challenge any part of the total sentence imposed at trial, even if he loses on the section 2255 motion, he should be in no-8-

wors e position than when he started, vis-a-vis the unchallenge d sentence.
Therefore, I would reverse the district court and vacate the enh ancedsentence on the count of conviction that Harrison neve r challenged in this section 2255 proceeding.

A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.