The Honorable George F. Gunn, Jr., United States District Judge f or the Eastern 1 District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3251

___________ United States of America, * * Appellee, * * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. James Alton, * * Appellant. *

___________ Submitted: April 18, 1997 Filed: July 14, 1997

___________ Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge. James Alton brought an action under 28 U.S.C. § 2255, challenging hi s conviction for using a firearm in relation to a drug traf ficking offense in violation of 18 U.S.C. § 924(c). The district court vacated the conv iction in light of the United States 1 Supreme Court 's opinion in Bailey v. United States , 116 S. Ct. 501 (1995). Upo n motion by the government, th e district court recalculated Alton's sentence on a related charge of trafficking in a controlled substance. Alton appeals, and we affirm.-2-

St. Louis police officers executed a search warrant at Alton's residence an d discovered quantities of cocaine, cocaine base, drug paraphernalia, and three handguns. The gove rnment issued a two-count indictment charging Alton with possession with in tent to distribute a controlled substance, in violation of 18 U.S.C. § 841, and with us ing a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Alton was convicted on both counts. The district court, ap plying the United States Sentencing Guidelines, sentenced Alton to si xty months of imprisonment and three years of supervised release for hi s drug trafficking conviction. In regard to the § 924(c) firearms conviction, the district co urt sentenced Alton to a consecutive five-year term of imprisonment, as the statute req uires. Defendants convicted of drug trafficking who are found to possess a dangerous weapon are subject to a two-level enhancement to their base offense level un der the Guidelines. U. S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1995)

. Ho wever, if a defendant is also sentenced for a § 924(c) conviction, the Guideline s prohibit the district court from applying the enhancement because § 924(c) penalizes the same conduct. U.S.S.G. § 2K2.4, comment. (n.2). Accordingly, in determinin g Alton's sentence for the drug trafficking conviction, the original sentencing court di d not apply the § 2D1.1(b)(1) weapon enhancement.
After Al ton began serving his sentence, the United States Supreme Cour t decided Bailey v . United States , 116 S. Ct. 501 (1995). In Bailey , the Court clarified the scope of § 924(c), holding that conviction under the statute for using a firearm in relation to a drug offense required a showin g that the defendant actively employed the firearm in a way that made the fire arm an "operative factor" in the drug offense. Id. at 505. As hav e numerous other defendants convicted under § 924(c), Alton filed a § 2255 habeas corpus action arguing tha t Bailey required that his § 924(c) conviction be set aside.-3-

The government conceded that the evidence did not support Alton's § 924(c ) charge in light of Bailey , and the district court accordingly vacated the conviction

. Alton v. United States , 928 F. Supp. 885, 887 (E.D. Mo. 1996). The governmen t argued, however, that the district co urt should resentence Alton on his drug trafficking convict ion, as § 924(c) no longer prevented application of the § 2D1.1(b)(1 ) enhancement. Alton contended that the court had no authority to resentence him on the dru g charge, and that such resentencing would constitute double jeopardy. In a care fully considered opinion, the district court concluded that while the "question i s close and not entirely free from doubt," it could resentence Alton applying th e enhancement. 928 F. Supp. at 888. The district court then resentenced Alton to sixtyfive months of imprisonment and three years of supervised release. Alton appeals. This court has already held that a district court has authority in a § 2255 action to resentence a p risoner on a drug trafficking offense after vacating a related § 924(c) conviction in light of Bailey

. Gardiner v. United States , 114 F .3d 734, 735-36 (8th Cir. 1997); United States v. Harrison , 113 F.3d 135, 137 (8th Cir. 1997). We also hav e heldthat such resentencing does not constitute double jeopardy. Gardiner , 114 F.3d at 736-37; Harrison , 113 F.3d at 138. Gardiner and Harrison are thus dispositive i n Alton's case. At the ti me of his resentencing, Alton had completed the sixty month term o f custody for his drug trafficking conviction, and had begun the § 9 24(c) sentence. Alton argues that because the drug t rafficking term of custody had been served, his sentence on that count had expired and he had thus developed a legitima te expectation of finality in that sentence. In Harrison , 113 F.3d at 138, we reserv ed this question, but now hold that in this case resentencing on the served portion of the two interdependent sentences does not violate double jeopardy. First, Alton's sentence on the drug charge had not expired, because he was still in custody and subject to supervised release on tha t charge at the end of his imprisonment on the § 924(c) count. Second, the consecutive sentences for the related drug and firearms charges constituted a unified sentencing-4-

package. "When a prisoner collaterally attacks a portion of a judgmen t, he is reopening the entire judgment and cannot selecti vely craft the manner in which the court corrects that judgment." Gardiner , 114 F.3d at 736. Furthermore, in Gar diner and Harrison we held that resenten cing on a related conviction did not constitute double jeopardy even when the prisoner ha d not

challenged that count in his habeas petition. Gardiner , 114 F.3d at 737; Harrison , 113 F.3d at 138. Here, however, Alton himself attac ked his drug tr afficking conviction in his initial habeas petition (though he later withdrew tha t request for relief in an amended petition), and so did not even arguably have a legitimate expectation of finality. Alton's drug trafficking sentence, rendered incorrect when the district cour

t vacated the related § 924(c) conviction, was before the district court and the court acted properly in correcting it. The judgment of the district court is affirmed. JOHN R. GIBSON, Circuit Judge, dissenting.
I have no quarrel with the proposition that we are bound by United States v

. Harrison

. Nevertheless, I respectfully dissent to express my views that under the facts of this case Harrison is not controlling and should not apply, and in any even t appl ication of Harrison 's reasoning to this case is deserving of reexamination by th e court en banc.
Here Alt on had served his sixty-month sentence on the drug traffickin g conviction and had begun serving the consecutive sentence under section 924(c). I n this respec t it differs from Harrison in which the drug sentence had not been full y served. Harrison

expressly reserved the question as to the applicability of the Double Jeopardy Clause where the drug sentence had been fully served. I would not stretch Harrison to fit this case.-5-

I agree with the reasoning of Judge G. Thomas Eisele in Warner v. Unite d States , 926 F. Supp. 1387 (E.D. Ark. 1996), which would require a holding that Alton had a legitimate expectation of finality in his completion of his sentence for the dru g related convictions, and that the Double Jeopardy Clause should prevent the distric t court from resentencing Alton on the dr ug charge. Judge Eisele's opinion develops his reasoning thoroughly and

convincingly in my view. I believe that the issue is one that deserves en banc consideration.
I would reverse. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.