UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-4405 RAQUEL YVETTE DOUTHIT, Defendant-Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. N. Carlton Tilley, Jr., District Judge. (CR-93-23) Submitted: December 30, 1997 Decided: January 23, 1998 Before WILLIAMS and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________ Affirmed by unpublished per curiam opinion.

_________________________________________________________________ COUNSELDaniel Smith Johnson, Winston-Salem, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Benjamin H.White, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________Unpublished opinions are not binding pr ecedent in this circuit. See Local Rule 36(c).

_________________________________________________________________ OPINION PER CURIAM:In 1993, Raquel Yvette Douthit was convicted of conspiracy to distribute cocaine base and using and carrying a firearm during and in relation to the conspiracy. Although the court initially sentenced her to consecutive terms of 292 and 262 months, pursuant to a Fed. R. Crim. P. 35(b) motion, it later resentenced her to two consecutive forty-five month terms. Following the United States Supreme Court's decision in Bailey v. United States , #6D 6D6D# U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448, 94-7492), Douthit filed a motion pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997), seekingto have her firearm conviction set aside. The court accepted the recommendation of the magistrate judge and vacated Douthit's firearm conviction, but resentenced her on the drug conviction. The courtincreased Douthit's sentence from forty-five to ninety months, notwithstanding that Douthit already had served forty-five months before she was resentenced. On appeal, Douthit contends that the Double Jeopardy Clause of the Fifth Amendment precluded resentencing her once her prior drugsentence was fully served and that the resentencing so upset her settled expectations as to deprive her of due process. We have recently resolved this issue adversely to Douthit's contentions. See United States v. Smith , 115 F.3d 241, 246-48 (4th Cir.) (resentencing after drug sentence fully served neither constitutes double jeopardy nor violates due process), cert. denied , #6D 6D6D# U.S. ___, 66 U.S.L.W. 3282 (U.S. Oct. 14, 1997) (No. 97-5789).* Consequently, we affirm. We

_________________________________________________________________ *We recognize that arguably there is tension between Smith and United States v. Silvers , 90 F.3d 95 (4th Cir. 1996), on the double jeopardy issue. However, because Smithrecognized the apparent conflict and distinguished Silvers , see Smith , 115 F.3d at 245-47, we are bound as a panel of the court by its holding.
2dispense with oral argument because the facts and legal contentionsare adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED 3