## 1997 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-18-1997 

# U nit ed S t a t es v

. M a r t in

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-7373

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

## R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. M a r t in " (1997). 1997 D e cisio n s

. P a pe r 134. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/134Filed 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 AppellantDavid 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) ("Co unt I") and 18 U.S.C. § 924(c)(1) ("Count II") (use of a fi rearm during or in relation to a drug trafficking crime). He was sentenced by the district court to a term of impris onment of thirty-seven months on Count I and a consecutive term of sixty months on Count II. This court affirmed bo th 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 an d 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 genera ted numerous appeals, both direct and collateral, from convictions under section 924(c)(1) that predated t he ruling in Bailey

.

Having lost his direct appeal to this court only te n days before the Court decided Bailey , Appellantfiled a motion in the district court under 28 U.S.C. § 2255 on Februa ry 23, 1996 to vacate, set aside, or correct his sentence for

2violating section 924(c)(1). The government concurr ed in the

vacatur of the Count II conviction and sentence, bu t requested that Appellant be resentenced on his Coun t I
conviction. The district court vacated the Count II conviction, but rejected Appellant's jurisdictional and constitutional arguments as to the Count I convicti on 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 lacke d jurisdiction to resentence him on his Count I convi ction, which he did not challenge in the section 2255 proc eeding. He claims that the district court's jurisdiction wa s limited
to a review of Count II and the concomitant "senten ce" that he attacked. Appellant further asserts that his res entencing by the district court on Count I violated his due p rocess rights and the prohibition against double jeopardy because he possessed a legitimate expectation of finality a s to the portion of his original sentence imposed under Coun t 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 c ase, another panel of this court has filed a reported op inion holding that a district court has jurisdiction to r esentence a section 2255 petitioner on unchallenged counts wh ere the petitioner successfully attacks a section 924(c)(1) conviction on the basis of the Supreme Court's decision in Bai ley . See
United States v. Davis , 112 F.3d 118 (3d Cir. 1997).

Third Circuit Internal Operating Procedure 9.1 read s:

It is the tradition of this court that the holding of a panel in a reported opinion is binding on subsequen t 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). G iven the

___________________________________________________ ______________

1. At the time of the resentencing hearing, Appella nt had completed 23 months of his original, 37-month term of imprisonme nt on Count I.

3circumstances here, we conclude that this court's h olding

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 Appell ant to a term of imprisonment of fifty-seven months on his Count
I convictions will be affirmed.

4SLOVITER, 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 secon d count on a § 2255 petition pursuant to Bailey v. United S tates

, 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. Da vis , 112 F.3d 118 (3d Cir. 1997), holding there was no imped iment to the resentencing. As the majority states, our In ternal 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 challenge d in the § 2255 petition, not over all sentences which the p etitioner may be serving.

The district courts were divided on the issue, with some holding that sentencing courts do not have the powe r to resentence a prisoner after a successful collateral attack on another count, and others holding that they do. Rec ently, what had been a similar division among the courts o f appeals has shifted to the position that the distri ct courts do have the power to resentence under a broad interpretation of 28 U.S.C. § 2255. See United Stat es 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 rese ntence 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 othe r court has relied on this provision, and I believe its applicability und er these facts is questionable.

5I will concentrate on our Davis opinion as that is the

controlling precedent.

Martin concedes that if this issue were raised in t he 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 revie w 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 necessar ily support a collateral attack on a final judgment."

Section 2255 is the federal analog to the common la w writ of habeas corpus allowing a criminal defendant to challenge a federal sentence. In United States v. H ayman , 342 U.S. 205, 219 (1952), the Supreme Court explain ed that § 2255 offered the same remedies as a traditio nal habeas petition and was to have the same substantiv e scope. A § 2255 petition, like a petition for a wri t 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 cor pus in McNally v. Hill , 293 U.S. 131, 136 (1934), the Supreme Court explained that historically habeas was intend ed to "inquire into the legality of the detention" and co uld only be used if a decision in the prisoner's favor would re sult 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 th e detention." 293 U.S. at 139 (footnote omitted). Pat ently, the government's effort to have the sentence of a convi cted defendant enhanced raises a question which does not concern the "lawfulness of the detention," which wa s 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 th rough

6the 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 procee ding, 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 p rovides that if the district court grants a § 2255 motion, it "shall vacate and set the judgment aside and shall dischar ge 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 appea ls.

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 limi ted in its resentencing options to only the count challeng ed in the motion. On one hand, it approvingly cites Hillary and the other courts so holding. On the other hand, it rath er 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 cour t authority to enhance an unchallenged sentence, I di sagree. Placed in context, the court's jurisdiction to "cor rect" the
sentence is limited to correction in favor of the petitioning prisoner who is determined to be "entitled to relie f."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 Consti tution or laws of the United States, or that the court was without ju risdiction to impose such sentence, or that the sentence was in e xcess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the senten ce 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

7"sentence" that is to be corrected is the one calle d into

question by the prisoner on his or her § 2255 petit ion. This is the statutory interpretation also reached by Jud ge 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-l evel enhancement to the sentence on the drug counts for possession of a firearm, but Davis' conviction unde r 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) sentenc e because of Bailey

without resentencing on the remaining
counts would mean that Davis' "sentence would not b e 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 se ntencing 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 effi cacy 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 ma ke findings of fact and conclusions of law with respect thereto. I f the court finds
that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or other wise open to collateral attack, or that there has been such a de nial or infringement of the constitutional rights of the pr isoner as to render the judgment vulnerable to collateral attack, the c ourt 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)

8within applicable constitutional and statutory limi ts, if that

appears necessary in order to ensure that the punis hment
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 constitu tional 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 th e sentence, the Supreme Court's decision in Addonizio , 442 U.S. at 179, is informative regarding the "sentencing packa ge" doctrine's applicability to a § 2255 proceeding. Ad donizio, 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 seriousne ss of his crime. Addonizio filed a petition under § 2255, and the same judge who had sentenced him granted that petit ion on the ground that at the time he imposed sentence he anticipated that Addonizio would be actually confin ed for three and one-half to four years, and that his "sen tencing expectation" was frustrated by the Parole Commissio n'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 o ne under "all of the objective criteria - federal juri sdiction, the Constitution, and federal law," id. at 187, Addonizio was not entitled to relief under § 2255. The Court stat ed, in language of interest here, "in our judgment, there is no basis for enlarging the grounds for collateral atta ck to include claims based not on any objectively ascerta inable error but on the frustration of the subjective inte nt of the sentencing judge." Id.

9I recognize that here the expectation of the senten cing

judge was dependent upon the interaction between th e statute and the Sentencing Guidelines, whereas in
Addonizio only the subjective intent of the sentencing judge was at issue. Nonetheless, the frustration of the s entencing 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 late r successfully challenged on a § 2255 petition. Inasm uch as the intent of the sentencing judge was held in Addo nizio 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 rational e to permit the sentencing judge to revisit the entire s entence on a § 2255 motion at the behest of the government.

I find that my views comport with those expressed b y the court of appeals in Chandler v. United States , 468 F.2d 834 (5th Cir. 1972), an opinion since limited by that c ourt'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 senten ced to five years imprisonment on count one and three year s imprisonment on count two. After the defendant successfully moved under § 2255 to vacate the sente nce 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 h er § 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 s tand would place a rather formidable deterrent in the pa th of a convicted defendant who desires to apply for p ost-

10conviction relief on only one count of a multi-coun t

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 o n one count of a multi-count indictment and even have com pleted the service of the term to which they were sentence d 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 c orrect an improper calculation of the base offense level t o 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 a ttacks are extinguished, there may be no principle that would prohibit a court from resentencing a defendant to an even hi gher sentence than s/he had been given before ever filin g the petition. The writ that originally could only be us ed 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 ci rcuits make my view a lonely one (joined only by Judge Hea ney's dissent in the Eighth Circuit), but I believe our D avis 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

11