* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 9/19/96 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. FLOYD MUNOZ,

Defendant-Appellant. No. 96-1137 (D.C. No. 96-M-715) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO, TACHA, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant Floyd Munoz appeals pro se the district c ourt’s denial of his motion to rescind indictment, properly construed bythe district court as a motion to vacate his sentence under 28 U.S.C. § 2255. Mun oz seeks to vacate his conviction for one count of use of a firearm during drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1), on the ground t hat an intervening Supreme Court decision, Bailey v. United States , 116 S. Ct. 501, 505 (1995), renders the factual basis of his conviction insufficient to sup port his § 924(c) conviction. Munoz was convicted in 1989 of conspiracy to distri bute cocaine; three counts of distribution of cocaine; possession with intent to distribute cocaine; and the use of a firearm during these drug trafficking crimes. He was sentenced to sixty-three months for the drug trafficking counts and sixty months for the § 924(c) firearm count, to be served consecutively. Munoz unsuccessfully raised the sufficiency of evidence supporting his § 924(c) firearm conviction in his direct appeal in 1990, and filed an unsuccessful co llateral attack on his conviction under 28 U.S.C. § 2255 in 1992. Munoz completed hi s drug conviction sentence on August 20, 1996, and has been released on bail p ending resolution of this appeal. Munoz’s firearm conviction was based on the presenc e of a firearm found in his bedroom six feet from the closet in which th e cocaine was found. The government admits Munoz was never observed with the firearm during his drug-3-

transactions, and made no move toward the weapon wh en the search warrant for his home was being executed. At the time of Munoz’ s conviction, these facts adequately supported a conviction for the firearm o ffense in this circuit. See,
e.g. , United States v. Parrish , 925 F.2d 1293, 1297-98 (10th Cir. 1991). However , the Supreme Court held in Baileythat “[a] defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs ordrug proceeds.” 116 S. Ct. at
508. In rejecting Munoz’s § 2255 motion, the district co urt concluded that these facts satisfied the Baileytest because the bedroom was where the drugs were kept, and, therefore, the gun was there for the pro tection of the drug activity. The district court also concluded Baileywould not have retroactive effect. After the date of the district court’s decision, th is court held that Baileyhas retroactive application to cases on collateral revi ew, United States v. Barnhardt , No. 96-6127, 1996 WL 473314, at *2 (10th Cir. Aug. 20, 1996). Further, the government concedes that the factual basis in the r ecord is insufficient to support a conviction for use of a firearm in relation to th e predicate drug offenses under Bailey , and that the proper remedy is for Munoz’s convict ion and sentence under § 924(c) to be vacated. Appellee’s Br., at 10. Under the facts of this case, we agree that insuffi cient evidence was presented at trial to support a conviction under § 924(c) in light of Bailey . We-4-

therefore grant Munoz’s motion and vacate his convi ction under 18 U.S.C. § 924(c). The government requests, however, that t his court remand this case to the district court for resentencing so that it may seek a two-level sentence enhancement of Munoz’s drug trafficking sentences u nder U.S.S.G. § 2D1.1(b)(1). The government relies upon United S tates v. Lang , 81 F.3d 955, 963 (10th Cir. 1996), in which this court held that , when a defendant successfully challenges his § 924(c) conviction on direct appeal in light of Bailey , a district court may reopen the defendant’s drug conviction se ntence in order to impose an enhancement under U.S.S.G. § 2D1.1(b)(1) for posses sion of a firearm during commission of an offense involving drugs. However, unlike Lang , which involved a direct appeal, Munoz’s challenge is brought under 28 U.S.C. § 2255. It appears no c ircuit court has yet reached the issue of whether a § 2255 Baileypetitioner can be resentenced on counts not challenged by petitioner in his § 2255 motion. Num erous district courts have considered the issue, with differing results. Comp are United States v. Forrest , F. Supp. , 1996 WL 428710, at *4-5 (E.D. Va. July 29, 1996)( holding the district court lacked authority to resentence a § 2 255 petitioner on unchallenged convictions); Rodriguez v. United States , F. Supp. , 1996 WL 361538, at *5- 8 (S.D.N.Y. June 27, 1996)(same); Dossett v. UnitedStates , 931 F. Supp. 686, 687-88, (D.S.D. June 20, 1996)(same); Warner v. Uni ted States , 926 F. Supp.-5-

1387, 1391-98 (E.D. Ark. 1996)(same); and Beal v. U nited States , 924 F. Supp. 913, 917 (D. Minn. 1996)(same), withWoodhouse v. United States , __ F. Supp.__, 1996 WL 421866, at *2-5 (C.D. Ill. J uly 26, 1996)(concluding district court does have authority to resentence a § 2255 petitioner on unchallenged counts); United States v. Tolson , F. Supp. , 1996 WL 425938, at *2-4 (D.D.C. July 22, 1996)(same); Merritt v. Un ited States , 930 F. Supp. 1109, 1111-15 (E.D.N.C. 1996)(same); and Mixon v. U nited States , 926 F. Supp. 178, 180-81 (S.D. Ala. 1996)(same). Some district courts have also considered this issu e in the context presented here, in which the petitioner has already completed his sentence for his drug conviction, also with differing results. Compare Woodhouse , 1996 WL 421866, at *5, and Merritt , 930 F. Supp. at 1115 (concluding resentencing on counts for which the original sentence has been fully served d oes not violate petitioner’s double jeopardy or due process rights), withWarner , 926 F. Supp. at 1393-95 (holding that double jeopardy and due process precl ude a district court from resentencing on counts already fully served). We express no opinion on these issues, however, bec ause they were never presented to the district court, nor were they brie fed by the parties on appeal. Accordingly, we remand to the district court for de termination in the first instance of the resentencing issue.-6-

The judgment of the United States District Court fo r the District of Colorado is REVERSED, the conviction under 18 U.S.C . § 924(c) is VACATED, and the case is REMANDED for determination by the d istrict court of the government’s sentence enhancement request.

Entered for the Court

John C. Porfilio Circuit Judge