1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-18-1997

United States v. Martin

Precedential or Non-Precedential:

Docket 96-7373

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Recommended Citation

"United States v. Martin" (1997). 1997 Decisions. Paper 134.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/134
Filed June 18, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-7373 

UNITED STATES OF AMERICA 

v. 

JOHN MARTIN 

JOHN W. MARTIN, JR., 

Appellant. 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. No. 93-cr-00176) 

Argued January 15, 1997 

Before: SLOVITER, Chief Judge, SCIRICA and SEITZ, 

Circuit Judges.

Filed: June 18, 1997 

James V. Wade, Esq., (Argued) 

Federal Public Defender 

Lori J. Ulrich, Esq. 

Assistant Federal Public Defender 

Office of Federal Public Defender 

100 Chestnut Street 

Harrisburg, Pennsylvania 17101 

 Attorneys for Appellant
David M. Barasch, Esq. 

United States Attorney 

Eric Pfisterer, Esq. (Argued) 

Assistant United States Attorney 

Federal Building 

228 Walnut Street 

P.O. Box 11754 

Harrisburg, Pennsylvania 17108 

 Attorneys for Appellee

OPINION OF THE COURT 

PER CURIAM. 

This appeal arises in the wake of the Supreme Court's 

interpretation of 18 U.S.C. § 924(c)(1) in Bailey v. United

States, 116 S. Ct. 501 (1995). 

John Martin ("Appellant") was convicted on December 2, 

1993 of violating 18 U.S.C. §§ 922(g) and 924(a)(2)

(possession of a firearm by a convicted felon) ("Count I") 

and 18 U.S.C. § 924(c)(1) ("Count II") (use of a firearm 

during or in relation to a drug trafficking crime). He was 

sentenced by the district court to a term of imprisonment 

of thirty-seven months on Count I and a consecutive term 

of sixty months on Count II. This court affirmed both 

convictions on February 24, 1995. 

On December 6, 1995, the Supreme Court filed its 

opinion in Bailey, in which it held that a conviction under 

18 U.S.C. § 924(c)(1) for using a firearm during and in 

relation to a drug trafficking crime requires the "active 

employment" of the weapon by the defendant. Bailey, 116 

S. Ct. at 506, 509. The Court's decision has generated 

numerous appeals, both direct and collateral, from 

convictions under section 924(c)(1) that predated the ruling 

in Bailey. 

Having lost his direct appeal to this court only ten days 

before the Court decided Bailey, Appellantfiled a motion in 

the district court under 28 U.S.C. § 2255 on February 23, 

1996 to vacate, set aside, or correct his sentence for 

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violating section 924(c)(1). The government concurred in the 

vacatur of the Count II conviction and sentence, but 

requested that Appellant be resentenced on his Count I 

conviction. The district court vacated the Count II

conviction, but rejected Appellant's jurisdictional and 

constitutional arguments as to the Count I conviction and 

resentenced him to a term of imprisonment of fifty-seven 

months on that count.1 This timely appeal followed.

Appellant argues here that the district court lacked 

jurisdiction to resentence him on his Count I conviction, 

which he did not challenge in the section 2255 proceeding. 

He claims that the district court's jurisdiction was limited 

to a review of Count II and the concomitant "sentence" that 

he attacked. Appellant further asserts that his resentencing 

by the district court on Count I violated his due process 

rights and the prohibition against double jeopardy because 

he possessed a legitimate expectation of finality as to the 

portion of his original sentence imposed under Count I. 

Our jurisdiction arises under 28 U.S.C. § 1291, and our 

review is plenary as to both issues. United States v.

Barnhart, 980 F.2d 219, 222 (3d Cir. 1992); Zettlemoyer v.

Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991). 

Since the date of oral argument before us in this case, 

another panel of this court has filed a reported opinion 

holding that a district court has jurisdiction to resentence 

a section 2255 petitioner on unchallenged counts where the 

petitioner successfully attacks a section 924(c)(1) conviction 

on the basis of the Supreme Court's decision in Bailey. See

United States v. Davis, 112 F.3d 118 (3d Cir. 1997). 

Third Circuit Internal Operating Procedure 9.1 reads: 

It is the tradition of this court that the holding of a 

panel in a reported opinion is binding on subsequent 

panels. Thus, no subsequent panel overrules the 

holding in a published opinion of a previous panel.

Court in banc consideration is required to do so. 

3d Cir. R., App. I, I.O.P. 9.1 (West Supp. 1997). Given the 

_________________________________________________________________ 

1. At the time of the resentencing hearing, Appellant had completed 23 

months of his original, 37-month term of imprisonment on Count I. 

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circumstances here, we conclude that this court's holding 

in Davis dictates our disposition here. See United States v.

Audinot, 901 F.2d 1201, 1204 (3d Cir. 1990). 

The order of the district court resentencing Appellant to 

a term of imprisonment of fifty-seven months on his Count 

I convictions will be affirmed. 

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SLOVITER, Chief Judge, concurring in the judgment only. 

This case raises the important question whether a 

criminal defendant convicted on two counts who 

successfully challenged his conviction on the second count 

on a § 2255 petition pursuant to Bailey v. United States, 

116 S. Ct. 501 (1995), may be resentenced on motion of the 

government on the first count. After this case was argued 

but before we rendered an opinion, another panel of this 

court decided the same issue in United States v. Davis, 112 

F.3d 118 (3d Cir. 1997), holding there was no impediment 

to the resentencing. As the majority states, our Internal 

Operating Procedures bind us to that holding unless

overturned by the court en banc. I disagree with the holding 

in Davis and use this opportunity to state my position. I 

believe that on collateral review a district court only has 

jurisdiction over the particular sentence challenged in the 

§ 2255 petition, not over all sentences which the petitioner 

may be serving. 

The district courts were divided on the issue, with some 

holding that sentencing courts do not have the power to 

resentence a prisoner after a successful collateral attack on 

another count, and others holding that they do. Recently, 

what had been a similar division among the courts of 

appeals has shifted to the position that the district courts 

do have the power to resentence under a broad 

interpretation of 28 U.S.C. § 2255. See United States v.

Rodriguez, 1997 WL 265121, ___ F.3d #6D 6D6D# (5th Cir. 1997); 

United States v. Harrison, 1997 WL 232266, #6D 6D6D# F.3d ___ 

(8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st 

Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 

1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), 

cert. denied, 1997 WL 221217 (1997). But see United States

v. Handa, 110 F.3d 42 (9th Cir. 1997) (approving district 

court's holding that there was no authority to resentence 

under Rule 35 or § 22551). 

_________________________________________________________________ 

1. The court in Handa nonetheless directed resentencing based on 28 

U.S.C. § 2106 which allows the Supreme Court or any court of appeals 

to modify any sentence brought before it for review "as may be just 

under the circumstances." As far as I know, no other court has relied on 

this provision, and I believe its applicability under these facts is 

questionable. 

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I will concentrate on our Davis opinion as that is the 

controlling precedent. 

Martin concedes that if this issue were raised in the 

context of a direct appeal the district court could

resentence him. See Fed. R. Crim. P. 35(a); United States v.

Busic, 639 F.2d 940, 950-51 (3d Cir.), cert. denied, 452 

U.S. 918 (1981). However, he notes that the Supreme Court 

has emphasized the distinction between direct review and 

review on a collateral proceeding. In United States v.

Addonizio, 442 U.S. 178, 184 (1979), the Court stated: "It 

has, of course, long been settled law that an error that may 

justify reversal on direct appeal will not necessarily support 

a collateral attack on a final judgment." 

Section 2255 is the federal analog to the common law 

writ of habeas corpus allowing a criminal defendant to 

challenge a federal sentence. In United States v. Hayman, 

342 U.S. 205, 219 (1952), the Supreme Court explained 

that § 2255 offered the same remedies as a traditional 

habeas petition and was to have the same substantive 

scope. A § 2255 petition, like a petition for a writ of habeas 

corpus, is a remedy afforded the prisoner, not the 

government, and the government has no power, either at 

common law or by statute, to seek collateral review of a 

prisoner's conviction or sentence. 

In its discussion of the purposes behind habeas corpus 

in McNally v. Hill, 293 U.S. 131, 136 (1934), the Supreme 

Court explained that historically habeas was intended to 

"inquire into the legality of the detention" and could only be 

used if a decision in the prisoner's favor would result in his 

immediate release. Id. at 138. The Court continued: 

"Wherever the issue has been presented, this Court has 

consistently refused to review, upon habeas corpus, 

questions which do not concern the lawfulness of the 

detention." 293 U.S. at 139 (footnote omitted). Patently, the 

government's effort to have the sentence of a convicted 

defendant enhanced raises a question which does not

concern the "lawfulness of the detention," which was the 

limit of the scope of a collateral review iterated by the 

Court. 

It follows that if the sentencing court is to have the 

jurisdiction to enhance the defendant's sentence through 

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the vehicle of a § 2255 petition after the time for direct 

appeal has passed, then its authority to do so, in deviation 

from the practice under a traditional habeas proceeding, 

must derive from specific language in § 2255. That was the 

basis on which the Fourth Circuit in Hillary found the 

authority, focusing on the portion of § 2255 that provides 

that if the district court grants a § 2255 motion, it "shall 

vacate and set the judgment aside and shall discharge the 

prisoner or resentence him or grant a new trial or correct 

the sentence as may appear appropriate." 28 U.S.C. § 2255. 

Hillary interpreted that language as bestowing broad 

remedial powers on the district court to correct a"sentence" 

as it finds "appropriate." See Hillary, 106 F.3d at 1173. 

That interpretation has been adopted in most of the recent 

opinions on this issue in the other courts of appeals. 

I find this court's opinion in Davis equivocal as to 

whether it is adopting the conclusion in Hillary that the 

language in § 2255 means that the court is not limited in 

its resentencing options to only the count challenged in the 

motion. On one hand, it approvingly cites Hillary and the 

other courts so holding. On the other hand, it rather deftly 

rests its express holding on a different analysis. 

In any event, whether Davis holds or merely suggests 

that the language of § 2255 gives the district court 

authority to enhance an unchallenged sentence, I disagree. 

Placed in context, the court's jurisdiction to "correct" the 

sentence is limited to correction in favor of the petitioning 

prisoner who is determined to be "entitled to relief."2 The 

_________________________________________________________________ 

2. 28 U.S.C. § 2255 provides in relevant part: 

A prisoner in custody under sentence of a court established by Act 

of Congress 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, or that the court was without jurisdiction to 

impose such sentence, or that the sentence was in excess of the 

maximum authorized by law, or is otherwise subject to collateral 

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence. 

Unless the motion and the files and records of the case conclusively 

show that the prisoner is entitled to no relief, the court shall cause 

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"sentence" that is to be corrected is the one called into 

question by the prisoner on his or her § 2255 petition. This 

is the statutory interpretation also reached by Judge 

Heaney in his dissenting opinion in Harrison, 1997 WL 

232266, at *4. 

To be sure, the Davis panel rests its explicit holding on 

a ground other than this broad and, I believe, 

unsupportable statutory interpretation. Instead, in Davis

the court based its holding on the "interdependence of the 

counts for Guideline sentencing purposes." Davis, 112 F.3d 

at ___ , 1997 WL 195397, at *3. Under U.S.S.G. 

§ 2D1.1(b)(1), the court would have imposed a two-level 

enhancement to the sentence on the drug counts for 

possession of a firearm, but Davis' conviction under the 

§ 924(c) count precluded that enhancement. See U.S.S.G. 

§ 2K2.4 Background Commentary. Thus, the Davis court 

held that vacating the now invalid § 924(c) sentence 

because of Bailey without resentencing on the remaining 

counts would mean that Davis' "sentence would not be in 

conformity with the law." Davis, 1997 WL 195397, at *4. 

In this respect, Davis relied on the "sentencing package" 

doctrine. That doctrine seeks to reconstruct the sentencing 

judge's overall plan in sentencing on a multi-count

indictment, and holds that when a conviction on one of the 

counts of a multi-count conviction is vacated, the 

sentencing judge "should be free to review the efficacy of 

what remains in light of the original plan, and to 

reconstruct the sentencing architecture upon remand, 

_________________________________________________________________ 

notice thereof to be served upon the United States attorney, grant a 

prompt hearing thereon, determine the issues and make findings of 

fact and conclusions of law with respect thereto. If the court finds

that the judgment was rendered without jurisdiction, or that the 

sentence imposed was not authorized by law or otherwise open to 

collateral attack, or that there has been such a denial or 

infringement of the constitutional rights of the prisoner as to render

the judgment vulnerable to collateral attack, the court shall vacate

and set the judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the sentence as may

appear appropriate. 

(emphasis added) 

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within applicable constitutional and statutory limits, if that 

appears necessary in order to ensure that the punishment 

still fits both crime and criminal." United States v. PimientaRedondo, 874 F.2d 9, 14 (1st Cir.), cert. denied, 493 U.S. 

890 (1989). 

Although I believe the sentencing package doctrine fully 

supports resentencing on a direct appeal, I believe that it 

does not serve to place within "applicable constitutional 

and statutory limits" the disturbance of a sentence at the 

behest of the government after the time for direct appeal 

has run. 

Because the "sentencing package" doctrine is based on 

the sentencing court's original intent in fixing the sentence, 

the Supreme Court's decision in Addonizio, 442 U.S. at 

179, is informative regarding the "sentencing package" 

doctrine's applicability to a § 2255 proceeding. Addonizio, a 

former mayor of the city of Newark, New Jersey, was

convicted of an extortion conspiracy and sentenced to 10 

years imprisonment. See id. at 180 & n.2. While he was 

serving his sentence, the Parole Commission changed its 

policies to take the seriousness of the crime into 

consideration and refused to release Addonizio once he 

became eligible for parole because of the seriousness of his 

crime. Addonizio filed a petition under § 2255, and the 

same judge who had sentenced him granted that petition 

on the ground that at the time he imposed sentence he 

anticipated that Addonizio would be actually confined for 

three and one-half to four years, and that his "sentencing 

expectation" was frustrated by the Parole Commission's 

new policies and procedures. See id. at 183. 

This court affirmed but the Supreme Court reversed,

holding that as long as the sentence was a lawful one 

under "all of the objective criteria - federal jurisdiction, the 

Constitution, and federal law," id. at 187, Addonizio was 

not entitled to relief under § 2255. The Court stated, in 

language of interest here, "in our judgment, there is no 

basis for enlarging the grounds for collateral attack to 

include claims based not on any objectively ascertainable 

error but on the frustration of the subjective intent of the 

sentencing judge." Id.

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I recognize that here the expectation of the sentencing 

judge was dependent upon the interaction between the 

statute and the Sentencing Guidelines, whereas in 

Addonizio only the subjective intent of the sentencing judge

was at issue. Nonetheless, the frustration of the sentencing 

judge's expectation can no more create jurisdiction to open 

a sentence on a count unchallenged in the § 2255 

proceeding than it could authorize resentencing on a count 

dismissed as part of a plea bargain when the counts on 

which the defendant pled and was sentenced are later 

successfully challenged on a § 2255 petition. Inasmuch as 

the intent of the sentencing judge was held in Addonizio to 

be an inadequate basis for a defendant to open the 

sentence under § 2255, I believe it cannot be used to 

support the sentencing package theory as a rationale to 

permit the sentencing judge to revisit the entire sentence 

on a § 2255 motion at the behest of the government.

I find that my views comport with those expressed by the 

court of appeals in Chandler v. United States, 468 F.2d 834 

(5th Cir. 1972), an opinion since limited by that court's 

decision in United States v. Rodriguez, 1997 WL 265121 

(5th Cir. 1997). The defendant in Chandler had been 

convicted of one count of tax evasion and one count of 

subscribing a fraudulent tax return, and was sentenced to 

five years imprisonment on count one and three years 

imprisonment on count two. After the defendant 

successfully moved under § 2255 to vacate the sentence on 

count one because it was in excess of the statutory

maximum, the district court resentenced her on the second 

count to five years in order to have its sentencing intent 

fulfilled. The court of appeals reversed on double jeopardy 

grounds, holding that the district court could not 

resentence the defendant on a count not raised in her 

§ 2255 petition. 

While I prefer to rest my opinion on the lack of 

jurisdiction rather than reach the double jeopardy issue, I 

am impressed by the force of the Chandler court's comment 

that: 

To allow the trial court's action in this case to stand 

would place a rather formidable deterrent in the path 

of a convicted defendant who desires to apply for post- 

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conviction relief on only one count of a multi-count 

conviction. By subjecting the defendant to the 

contingency of having a non-challenged sentence 

escalated to the statutory maximum, we would truly be 

inviting the defendant to play `Russian Roulette.' 

468 F.2d at at 837. 

The concerns raised in Chandler are not merely 

academic, as defendants who have used Bailey to 

successfully challenge their § 924(c) convictions on one 

count of a multi-count indictment and even have completed 

the service of the term to which they were sentenced on the 

other count have been resentenced to a longer term. See, 

e.g., United States v. Smith, 103 F.3d 531, 532 (7th Cir. 

1996) (enhancing and using the resentence also to correct 

an improper calculation of the base offense level to the 

defendant's detriment); Woodhouse v. United States, 109 

F.3d 347, 348 (7th Cir. 1997) (returning a released prisoner 

to prison on the subsequently enhanced sentence). 

The availability of a collateral attack via § 2255 is thereby 

being transformed from a symbol of personal liberty into a 

tool for the government to revisit final sentences. Once the 

distinctions between direct review and collateral attacks are 

extinguished, there may be no principle that would prohibit 

a court from resentencing a defendant to an even higher 

sentence than s/he had been given before ever filing the 

petition. The writ that originally could only be used to seek 

immediate release from custody could now be used by the 

government to extend custody. 

I recognize that the recent cases from the other circuits 

make my view a lonely one (joined only by Judge Heaney's 

dissent in the Eighth Circuit), but I believe our Davis

opinion sets us on a dangerous road for which only the 

Supreme Court may provide a different destination. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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