UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Daniel 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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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), seeking

to 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 court

increased 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 drug

sentence 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

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*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 Smith recognized 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.

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dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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