United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2544WM

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Charles H. Harrison, Jr., also * 

known as Chuck, *

*

Appellant. *

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 Submitted: March 11, 1997

 Filed: May 9, 1997

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

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FAGG, Circuit Judge.

Charles Harrison pleaded guilty to conspiracy to distribute

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

sentenced Harrison to 121 months for the drug offense and sixty

consecutive months for the gun offense. After Harrison lost his

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 gun

sentence. The Government conceded Harrison’s underlying gun

conviction should be reversed in light of Bailey, but argued the

district court should enhance Harrison’s drug sentence for his

possession of a firearm. See U.S. Sentencing Guidelines Manual §
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2D1.1(b)(1) (1996). Because the Guidelines bar the § 2D1.1(b)(1)

enhancement as double counting when a defendant is convicted of

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 not

consider whether the enhancement applied at Harrison’s original

sentencing.

Following a resentencing hearing, the district court vacated

the sixty month term originally imposed on the erroneous gun

conviction. The district court found the firearm possession

enhancement applied and imposed a revised term of 151 months

imprisonment on the drug conviction, thirty months less than

Harrison’s total original sentence. The district court told

Harrison, “The sentence [imposed] today is the sentence that you

would have received [on the drug charge at your original sentencing

in May 1992] had there not been a gun count mandating a consecutive

five year sentence . . . .” Harrison appeals his revised drug

sentence. We affirm.

Because Harrison did not challenge the drug conviction or

sentence in his § 2255 motion, Harrison contends the district court

lacked jurisdiction to resentence him on the drug conviction and

should have simply vacated his erroneous gun sentence. If Harrison

had successfully attacked his gun conviction on direct appeal

rather than collaterally, our earlier cases would permit his

resentencing. We have held that when Bailey requires reversal of

a § 924(c) conviction on direct appeal, the district court may

consider whether an unchallenged drug sentence should be enhanced

for possession of a firearm. See United States v. Behler, 100 F.3d

632, 640 (8th Cir. 1996); United States v. Rehkop, 96 F.3d 301, 306

(8th Cir. 1996); United States v. Thomas, 93 F.3d 479, 488 (8th

Cir. 1996). In this case, we must decide whether similar
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resentencing is permissible after reversal of a gun conviction in

a collateral proceeding. Agreeing with the circuits that have

decided the issue, we conclude the district court had power to

resentence Harrison on his drug conviction. See United States v.

Binford, No. 96-2419, 1997 WL 91851, at *6-7 (7th Cir. Mar. 4,

1997)(28 U.S.C. § 2255 confers jurisdiction); United States v.

Hillary, 106 F.3d 1170, 1171-73 (4th Cir. 1997) (same); see also

United States v. Handa, No. 96-16468, 1997 WL 134095, at *1-2 (9th

Cir. Mar. 26, 1997) (holding circuit precedent and government

concession prevented adoption of view that § 2255 permits

resentencing after reversal of § 924(c) conviction, but court of

appeals had authority under 28 U.S.C. § 2106 to vacate defendant’s

entire sentence and remand for resentencing on drug conviction).

The district court can modify a previously imposed term of

imprisonment if expressly permitted by statute. See 18 U.S.C. §

3582(c)(1)(B) (1994). Harrison contends § 2255 does not permit

modification of his drug sentence. We disagree. Section 2255

provides:

A prisoner in custody under sentence . . . claiming the

right to be released upon the ground that the sentence

was imposed in violation of the Constitution or laws of

the United States . . . may move the court which imposed

the sentence to vacate, set aside or correct the

sentence. . . . If the court finds that . . . the

sentence imposed was not authorized by law . . . the

court shall vacate and set the judgment aside and shall

discharge the prisoner or resentence [the prisoner] or

grant a new trial or correct the sentence as may appear

appropriate.

The statute gives district courts broad and flexible remedial

authority to resentence a defendant and to correct the sentence as

appropriate. See Hillary, 106 F.3d at 1171. A remedy that seems

appropriate is to put § 2255 defendants in the same position as

defendants on direct appeal by permitting resentencing, see id. at
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1172, and to impose a sentence that would have been rendered but

for the challenged error. Whether the district court has power to

do so depends on the breadth of the term “sentence” in § 2255. See

Binford, 1997 WL 91851, at *6. Reading the statute narrowly,

Harrison contends § 2255 only authorizes modification of the

specific term of imprisonment associated with the single count of

conviction attacked, 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 issue all

interdependent components of his total sentence.

Because the mandatory sixty month term for the gun conviction

and the firearm enhancement on the drug conviction are

interdependent, the terms of imprisonment imposed on the gun and

drug convictions constitute a “sentence” within the meaning of §

2255. See Binford, 1997 WL 91851, at *6; Hillary, 106 F.3d at

1172. The district court originally took Harrison's gun possession

into account by sentencing him for using a gun during the drug

crime, which directly prevented the court from enhancing Harrison's

drug sentence for firearm possession. Once the district court

vacated the term imposed on the erroneous gun conviction, the

district court could appropriately correct Harrison's

interdependent drug term by applying the firearm enhancement. See

Binford, 1997 WL 91851, at *7; Hillary, 106 F.3d at 1172-73. 

Harrison asserts application of the enhancement on

resentencing violates double jeopardy because he has already served

part of the drug term. The Double Jeopardy Clause prevents a

sentencing court from increasing a defendant’s sentence after the

defendant has developed a legitimate “expectation of finality in

the original sentence.” United States v. DiFrancesco, 449 U.S.

117, 139 (1980). When a defendant challenges one of at least two
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interdependent sentences, however, the defendant has effectively

challenged the interwoven sentencing plan. See Binford, 1997 WL

91851, at *7-8; United States v. Shue, 825 F.2d 1111, 1115 (7th

Cir. 1987). Because the defendant has no legitimate expectation of

finality in any discrete part of an interdependent sentence after

a partially successful appeal or collateral attack, there is no

double jeopardy bar to enhancing an unchallenged part of an

interdependent 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 121

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

States, 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).

Last, Harrison contends the Government is seeking the gun

possession enhancement to penalize him for filing a § 2255 motion,

and thus, his resentencing violates his right to due process. We

find no evidence of vindictiveness in Harrison’s resentencing.

Harrison’s total sentence has been reduced by almost three years

and the district court resentenced Harrison according to the

court’s original sentencing plan. See Shue, 825 F.2d at 1115-16.

In these circumstances, we conclude Harrison’s resentencing does

not violate due process.

Imposing a sentence that the Guidelines make appropriate for

Harrison’s conduct is not fundamentally unfair. Harrison possessed

a gun during the drug conspiracy, and the enhancement for its

possession was blocked at his original sentencing only by his
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separate § 924(c) gun conviction, which was later deemed legally

unsound. If we did not permit resentencing of defendants who

successfully challenge § 924(c) convictions in § 2255 proceedings,

they would receive lighter sentences than defendants who

successfully attack their § 924(c) convictions on direct appeal and

can be resentenced. Permitting resentencing on the drug conviction

simply puts Harrison back in the situation he would have faced

under the law at the time of his arrest had the erroneous gun

charge not been brought. See Handa, 1997 WL 134095, at *2. 

We affirm the district court.

HEANEY, Circuit Judge, dissenting.

I dissent because, in my view, the district court lacks

jurisdiction to enhance Harrison’s sentence for the drug conviction

that he did not challenge in this collateral appeal. Regardless of

whether it “seems appropriate to put § 2255 defendants in the same

position as defendants on direct appeal by permitting

resentencing,” Majority Op., supra, at 3, there is simply no legal

basis on which to do so at this stage of the proceedings. 

Section 2255 permits a prisoner to move the district court for

relief if he believes his sentence is unconstitutional and the

statute expressly provides the court with authority to vacate, set

aside, or correct “the sentence.” Thus, I agree with the majority

insofar as it asserts that the district court’s power to resentence

Harrison on the unchallenged conviction depends on the breadth of

the term “the sentence” in section 2255. I am convinced, however,

that in the context of the entire provision, the term’s meaning is

clearly limited to only the sentence specifically challenged by the

defendant on collateral appeal. “The sentence” is used in the
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statute to define the scope of a challenge under section 2255

(i.e., a prisoner’s claim “that the sentence was imposed in

violation of the Constitution or laws of the United States”) and

again, to establish the relief that the district court can afford

if the claim has merit (i.e., if “the sentence imposed was not

authorized by law . . . the court shall vacate and set the judgment

aside and shall discharge the prisoner . . . or correct the

sentence as may appear appropriate.”). For the statute to make

sense, “the sentence” must have a constant meaning and, reading the

provision as a whole, that meaning is logically limited to the

sentence collaterally challenged by the prisoner. Because Harrison

does not challenge either his conviction or sentence on the drug

count, that sentence simply is not before the district court in

this section 2255 proceeding.

Moreover, the language of section 2255 expressly provides that

relief under the statute is available only to a prisoner in the

custody of the United States. The only party seeking “relief” with

respect to the drug conviction (assuming for the sake of argument

that an increased drug sentence can be called “relief” for these

purposes) is the government. I agree with the observation made by

Judge Eisele that, “no matter how hard one tries, one simply cannot

shoehorn the United States into the class of persons who are

entitled to seek relief under [section 2255].” Warner v. United

States, 926 F. Supp. 1387, 1398 (E.D. Ark. 1996). In fact, given

that only a prisoner is entitled to relief under section 2255, I am

hard-pressed to envision a circumstance in which a district court

would ever use section 2255 to enhance a previously-imposed

sentence. I firmly believe that if a section 2255 movant elects

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
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worse position than when he started, vis-a-vis the unchallenged

sentence.

Therefore, I would reverse the district court and vacate the

enhanced sentence on the count of conviction that Harrison never

challenged in this section 2255 proceeding.

A true copy.

Attest.

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