PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5616

STEVEN A. SILVERS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5708

STEVEN A. SILVERS,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-87-144-Y)

Argued: June 3, 1996

Decided: July 22, 1996

Before RUSSELL, HALL, and LUTTIG, Circuit Judges.

_________________________________________________________________

Dismissed in part, vacated in part and remanded by published opinion. Judge Russell wrote the opinion, in which Judge Hall and Judge

Luttig joined.

_________________________________________________________________
COUNSEL

ARGUED: Gerald Chester Ruter, Baltimore, Maryland, for Appellant. Andrew George Warrens Norman, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A.

Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

In this appeal we are asked to determine whether, inter alia, a district court, upon resentencing of a defendant pursuant to a successful

28 U.S.C. § 2255 motion, can sua sponte reinstate a previouslyvacated conspiracy conviction. Finding no Double Jeopardy concerns,

and noting that the Supreme Court recently cited to this practice with

approval in Rutledge v. United States, #6D 6D6D# U.S. ___, 116 S. Ct. 1241

(1996), we affirm that aspect of the district court's order. However,

the district court's restructuring of sentences on other counts, in such

a way as to reimpose sentences which were fully served, did violate

the Double Jeopardy Clause; hence, we vacate the resentencing order

and remand the case for imposition of a 15-year sentence for the reinstated conspiracy count.

I.

In February 1988, a jury found Silvers guilty of supervising a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848,

conspiracy to possess with intent to distribute cocaine in violation of

21 U.S.C. § 846, three counts of possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841, two counts of interstate travel

in aid of racketeering in violation of 18 U.S.C.§ 1952, and conspiracy

to defraud the United States in violation of 18 U.S.C. § 371. The district court vacated Silvers' conviction for conspiracy to possess and

distribute cocaine because it was a lesser-included offense of the CCE

conviction. In April 1988, Silvers was sentenced to 35 years on the

CCE count, concurrent 15-year sentences on each of the possession

with intent to distribute counts, and concurrent 5-year sentences on

the remaining counts.

 2
Silvers' convictions arose from his involvement in a large-scale

cocaine trafficking ring based in Miami, Florida, with distribution

networks in Maryland and elsewhere. The government's trial evidence primarily concerned Silvers' involvement with this drugtrafficking organization, and his coordination of two importations of

cocaine and marijuana from Colombia in the summer of 1985. As to

these latter transactions, the government's only witness was John

Gerant, a co-conspirator testifying under a grant of immunity. Gerant

is a licensed pilot and former Miami police officer who flew the drugs

into the United States. Gerant testified that Silvers was the controlling

force behind the drug organization. Based on this testimony, the jury

found Silvers guilty of supervising a CCE.

Over the next several years, the government continued its investigation of this drug trafficking network. After further arrests and interviews with co-conspirators, the government realized that Gerant had,

in fact, perjured himself at Silvers' trial, and that Gerant was likely

the controlling force behind the major shipments of cocaine and marijuana from Colombia into the United States during the summer of

1985. The government subsequently prosecuted Gerant based upon

this new information. Gerant was convicted of, inter alia, supervising

a CCE. He received a 35-year sentence.

Silvers then filed the present § 2255 motion contending that his

CCE conviction must be vacated because it was procured through

Gerant's perjured testimony. Silvers contended that it was now clear

that Gerant was really the person who organized the 1985 drug shipments. The district court agreed and ordered that Silvers was entitled

to a new trial on the CCE conviction. However, because Silvers'

previously-vacated conspiracy conviction no longer merged into a

CCE conviction, the court sua sponte reinstated Silvers' conspiracy

conviction.1

At resentencing, rather than merely vacating the 35-year sentence

for the CCE conviction and imposing a sentence for conspiracy, the

district court revisited Silvers' entire sentence, treating it as a pack-

_________________________________________________________________

1 The court first determined that Gerant's perjured testimony did not

affect Silvers' conviction for conspiracy to possess with intent to distribute cocaine.

 3
age. The court noted that Silvers had already served about seven years

in prison, and that the maximum possible term available on the conspiracy count was 15 years. The court then imposed a 15-year sentence for conspiracy to possess with intent to distribute cocaine, and

concurrent 15-year sentences on each of the three cocaine possession

with intent to distribute counts. But, to increase the sentence, the court

also resentenced Silvers to 5 years on each of the two interstate trafficking counts to run concurrent with each other, but consecutive to

the conspiracy to possess with intent to distribute count, and an additional 5 years on the conspiracy to defraud the government count to

run consecutive to the two interstate trafficking counts. The net result

was that the district court imposed a 25-year sentence upon resentencing.

Silvers noted a timely appeal from this resentencing order, raising

several issues challenging the district court's authority to reinstate the

vacated conspiracy conviction on collateral attack, and to resentence

Silvers on counts which Silvers never challenged in his § 2255

motion. Silvers subsequently filed a Fed. R. Civ. P. 59 motion to alter

or amend the judgment. The district court denied this motion, contending it did not have jurisdiction because of Silvers' timely appeal.

Silvers also noted an appeal from that order; both were consolidated

into this action.

II.

At the outset, we must address the propriety of the district court's

refusal to accept jurisdiction over Silvers' Fed. R. Civ. P. 59 motion,

which was filed after Silvers noted a timely appeal to this court. Silvers contends the district court erroneously denied his Rule 59 motion

and, therefore, that we should remand for the district court's consideration of that motion and refrain from exercising jurisdiction over his

timely-filed appeal from resentencing.

Under the 1993 amendments to the Federal Rules of Appellate Procedure, when a party files a timely notice of appeal followed by a

timely Rule 59 motion, the notice of appeal is tolled and does not

become effective to confer jurisdiction on the court of appeals until

the entry of an order disposing of the Rule 59 motion. Fed. R. App.

P. 4(a)(4), advisory committee's note. We agree with Silvers that,

 4
based on the language of Rule 4, the district court erroneously concluded that it could not exercise jurisdiction over his Rule 59 motion.

However, we disagree with Silvers over the impact of the district

court's ruling. Although the district court incorrectly refused to accept

jurisdiction over his Rule 59 motion, its order clearly "disposed" of

that motion. Under Rule 4, therefore, Silvers' previously filed notice

of appeal became effective and vested this court with jurisdiction to

hear his appeal from the district court's resentencing order.

Although we could decline to take jurisdiction over this case and

instead remand for the district court's consideration of Silvers' Rule

59 motion, we believe the underlying issues are ripe for our resolution. They were briefed by both parties and fully argued before this

panel of judges. Hence, although the district court's ruling on the

Rule 59 motion was erroneous, "it is difficult to see what principle

would be vindicated by sending this case on what would almost certainly be a brief round trip to the [district court]." Lyng v. Northwest

Indian Cemetery Protective Ass'n, 485 U.S. 439, 446 (1988). Accordingly, we dismiss the appeal from the district court's denial of Silvers'

Rule 59 motion, and proceed to the merits of the case.

III.

We turn first to Silvers' contention that the district court erroneously reinstated his conviction and sentence for conspiracy to possess

with intent to distribute cocaine after vacating the CCE conviction.

Silvers takes issue with this action on appeal, arguing that because he

had a legitimate expectation of finality in his sentence, the district

court's action of reinstating the previously-vacated conviction subjected him to punishment anew in violation of the Double Jeopardy

Clause.

A.

Silvers' argument is one of first impression in this court. However,

prior precedent from the Supreme Court and other circuits squarely

support the district court's action. The primary thrust of the Double

Jeopardy Clause is to protect a defendant from multiple punishments

or successive prosecutions for the same offense. North Carolina v.

Pearce, 395 U.S. 711, 717 (1969). "[W]here there is no threat of

 5
either multiple punishment or successive prosecutions, the Double

Jeopardy Clause is not offended." United States v. Wilson, 420 U.S.

332, 344 (1975).

In Wilson, the Supreme Court held that reinstating a jury's verdict

of conviction on direct appeal, which the district court had erroneously vacated pursuant to the defendant's post-trial motion for judgment of acquittal, did not violate the Double Jeopardy Clause. Id. at

353. The Court reasoned that such an act merely reinstated a jury's

prior verdict of conviction. Because reinstatement did not subject the

defendant to a new trial or multiple punishments, there were no double jeopardy concerns. Id. at 344-45; accord United States v. Bjerke,

796 F.2d 643, 646 (3rd Cir. 1986) ("The Double Jeopardy Clause is

implicated only where there is a threat of multiple punishments or a

second prosecution. . . . Such is not the case where, as here, the appellate court is asked only to reinstate a vacated verdict."). And, the

Sixth Circuit, without comment, has done exactly what the district

court did here: reinstate a previously-vacated conspiracy conviction

after vacating a defendant's CCE conviction for insufficiency of the

evidence. United States v. Ward, 37 F.3d 243, 250 (6th Cir. 1994),

cert. denied, 115 S. Ct. 1388 (1995).

There is also abundant precedent supporting the analogous proposition that an appellate court on direct appeal may impose a conviction

for a lesser-included offense when it vacates a greater erroneous conviction, even though the jury did not render an express verdict on the

lesser offense. See, e.g., Morris v. Mathews, 475 U.S. 237, 246-47

(1986) (holding that court may reduce a jeopardy-barred conviction

to a conviction for a lesser-included offense that is not jeopardybarred, unless the defendant can show a reasonable probability that he

would not have been convicted of the nonjeopardy-barred offense

absent the presence of the jeopardy-barred offense); United States v.

Dinkane, 17 F.3d 1192, 1198-99 (9th Cir. 1994) (holding that trial

court may enter a judgment of conviction for lesser-included unarmed

bank robbery where evidence was insufficient to support actual conviction for greater offense of armed bank robbery); Dickenson v.

Israel, 482 F. Supp. 1223, 1226 (E.D. Wisc. 1980) (same). This practice does not violate the Double Jeopardy Clause because, in essence,

the defendant is not subjected to multiple punishment; rather, he is

placed in exactly the same position in which he would have been had

 6
there been no error in the first instance. Such is Silvers' predicament.

By reinstating the conspiracy conviction, the district court avoided

giving Silvers a windfall and placed him in exactly the same position

he would have been in had he not been erroneously convicted of the

CCE count in the first instance.

B.

Silvers asks us to distinguish his case on the ground that the district

court reinstated the previously-vacated conviction on collateral attack,

not on direct appeal. Silvers concedes it would not have violated the

Double Jeopardy Clause for a reviewing court on direct appeal to

vacate his CCE conviction and reinstate the conspiracy conviction.

However, once he exhausted his direct appeal, Silvers contends he

then had an expectation of finality in his conviction and sentence that

barred reinstatement of previously-vacated convictions on collateral

attack.

We believe that in the present context, Silvers is asking us to exalt

form over substance and draw a distinction without a difference. The

Supreme Court has expressly rejected the notion that an expectation

of finality accrues in all cases at a fixed point in time: "the Double

Jeopardy Clause does not provide the defendant with the right to

know at any specific moment in time what the exact limit of his punishment will turn out to be." United States v. DiFrancesco, 449 U.S.

117, 137 (1980). Based on DiFrancesco, we decline to declare a ruling which would provide defendants bright-line protection under the

Double Jeopardy Clause at the point they exhaust their direct appeals.

Instead, as we have previously-enunciated, the appropriate inquiry

from DiFrancesco is whether at a particular point in time, the defendant has a legitimate expectation of finality in his sentence. United

States v. Bello, 767 F.2d 1065, 1070 (4th Cir. 1985).

Even with the passage of seven years, we fail to see how Silvers

can claim a legitimate expectation that the district court's earlier vacation of his conspiracy conviction was final, when he was in the process of challenging the existence of the conviction upon which that

vacation was based. The cases upon which Silvers relies disprove his

own reasoning and lead us to the opposite conclusion. For instance,

in United States v. Cochran, 883 F.2d 1012 (11th Cir. 1989), Cochran

 7
was originally sentenced to 30 years' imprisonment for four drug convictions. He received 15 years on each count to run concurrent to each

other, with an additional 15-year statutory enhancement on each

count. On collateral attack, Cochran successfully argued that the district court erred in imposing the statutory enhancement. At resentencing, Cochran expected the district court to vacate the enhancement

and impose a total 15-year sentence. Instead, the district court

replaced Cochran's sentence with a package of unenhanced concurrent and consecutive sentences totalling 25 years. Id. at 1014.

On appeal, the Eleventh Circuit considered whether, on collateral

attack, revisiting those aspects of Cochran's sentences that were

unchallenged violated the Double Jeopardy Clause. Similar to Silvers'

contention, Cochran argued that he had a legitimate expectation that

he would receive concurrent 15-year sentences and that the Double

Jeopardy Clause protected that expectation. The court rejected this

claim for two reasons. First, it noted that the Double Jeopardy Clause

protects a defendant's legitimate expectation of finality in the length

of sentence by prohibiting, in some cases, an increase in a defendant's

sentence in a second proceeding. Cochran, however, suffered no

greater jeopardy on resentencing because the district court actually

decreased the overall sentence from 30 to 25 years. Id. at 1017. Second, despite that this was a collateral attack case, Cochran could have

no legitimate expectation of finality in his sentence because he

requested that the prior sentence be nullified."[Cochran] has, by his

own hand, defeated his expectation of finality, and`the Double Jeopardy Clause, which guards against Government oppression, does not

relieve a defendant from the consequences of his voluntary choice.'"

Id. (quoting United States v. Scott, 437 U.S. 82, 99 (1978)).2

_________________________________________________________________

2 Silvers also cites United States v. Henry, 709 F.2d 298 (5th Cir. 1983)

(en banc), and the following two cases from the Eleventh Circuit, one of

which was rendered by the former Fifth Circuit before it was divided into

the Eleventh and Fifth Circuits in 1981: United States v. Rosen, 764 F.2d

763 (11th Cir. 1985), cert. denied, 474 U.S. 1061 (1986); United States

v. Chandler, 468 F.2d 834 (5th Cir. 1972). To the extent any of these

cases can be read to stand for the proposition that a district court violates

double jeopardy on resentencing from a successful collateral attack if it

sentences on counts outside of those challenged, we think it clear they

were overruled by DiFrancesco and Cochran. In fact, the Eleventh Circuit explicitly called into question their continued vitality in light of later

Eleventh Circuit and Supreme Court precedents. Cochran, 883 F.2d

1015-16 n.6.

 8
We find the reasoning in Cochran persuasive and consistent with

DiFrancesco and our holding in Bello. Like Cochran, Silvers does not

have a valid claim that the district court violated the Double Jeopardy

Clause. Even after resentencing, Silvers' total sentence was reduced

from 35 to 25 years. Additionally, as previously stated, it is disingenuous for Silvers to argue that he had a legitimate expectation of finality in his sentence merely because his claim was raised on collateral

attack, when he challenged the greater offense upon which that vacation was solely based. We see no reason to relieve Silvers from the

consequences of his voluntary choice merely because his challenge

was successful on collateral attack rather than on direct appeal.

Moreover, we cannot ignore the curious posture of this case. While

Silvers' appeal was pending, the United States Supreme Court

decided Rutledge v. United States, #6D6D 6D# U.S. ___, 116 S.Ct. 1241

(1996), in which the Court cited with approval the very order now

before us:

Consistent with the views expressed by the D.C. Circuit,

federal appellate courts appear to have uniformly concluded

that they may direct the entry of judgment for a lesser

included offense when a conviction for a greater offense is

reversed on grounds that affect only the greater offense. See

8A J. Moore, Federal Practice ¶ 31.03[5], and n. 54 (2d ed.

1995); United States v. Ward, 37 F.3d 243, 251 (CA6 1994)

(after finding insufficient evidence to support the CCE

count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction,

which District Court had previously vacated as lesser

included offense of CCE), cert. denied, 514 U.S. ___

(1995); UNITED STATES V. SILVERS, 888 F. Supp. 1289, 1306-

1309 (ND [sic] Md. 1995) (reinstating conspiracy conviction previously vacated after granting motion for new trial

on CCE conviction). This Court has noted the use of such

practice with approval. Morris v. Mathews , 475 U.S. 237,

246-247 (1986).

Id. at 1250 (emphasis added). While that aspect of the Court's opinion

was dictum, even Silvers' counsel conceded at oral argument that the

Supreme Court's express ratification of the district court's action is

 9
highly persuasive support for its constitutionality. We agree and conclude that the district court's action of reinstating Silvers' previouslyvacated conspiracy conviction, after vacating his CCE conviction on

grounds that did not affect the conspiracy conviction, was appropriate

and did not violate the Double Jeopardy Clause.

IV.

We turn next to Silvers' challenge to the district court's reimposition of sentences for convictions upon which Silvers had already

served the entire sentence. We agree that this practice violated the

Double Jeopardy Clause.

In DiFrancesco, 449 U.S. at 133, the Supreme Court made clear

that a criminal sentence is not to be afforded the finality and conclusiveness accorded an acquittal. Accordingly, to determine a double

jeopardy violation in the context of increases in sentences, the focus

turns to whether the defendant had a legitimate expectation of finality

in his sentence. Bello, 767 F.2d at 1070. Although an expectation of

finality does not legitimately accrue by the mere commencement of

the sentence, once a defendant fully serves a sentence for a particular

crime, the Double Jeopardy Clause's bar on multiple punishments

prevents any attempt to increase thereafter a sentence for that crime.

See Ex Parte Lang, 18 Wall. 163 (1874) (holding that double jeopardy was violated by resentencing of defendant who had fully served

one of two alternative sentences); United States v. Lundien, 769 F.2d

981, 984-85 (4th Cir. 1985) (recognizing that court cannot reimpose

sentence once defendant has fully served a lawful sentence for his

crimes), cert. denied, 474 U.S. 1064 (1986).

By the time of Silvers' resentencing on his § 2255 motion, he had

served approximately seven years' imprisonment. Accordingly, he

had fully served all five-year sentences for both counts of interstate

trafficking and one count of conspiracy to defraud the United States.

All of these sentences were imposed concurrent to each other and to

Silvers' original 35-year CCE conviction. Nonetheless, at resentencing, the district court reimposed these sentences, running two of them

consecutive to a 15-year sentence for conspiracy to possess with

intent to distribute cocaine so as to achieve a total sentence of 25

years. As the government concedes, reimposition of sentence on

 10
counts upon which Silvers had fully satisfied his sentence violated the

Double Jeopardy Clause.

Accordingly, we vacate the district court's resentencing order and

remand this case for resentencing with directions to the district court

to impose a 15-year concurrent sentence for the reinstated conspiracy

conviction.

V.

In light of our holding vacating the district court's resentencing

order and remanding for reimposition of sentence, we need not

address Silvers' other arguments on appeal.3

No. 95-5616 - VACATED AND REMANDED

No. 95-5708 - DISMISSED

_________________________________________________________________

3 One of the several arguments Silvers raised on appeal is his contention that the original sentencing court committed reversible error when

it forfeited his residence without adhering to the requirements of the

criminal forfeiture statute, 21 U.S.C. § 853. This issue is not properly

before us. The original sentencing order is not part of this appeal, and

Silvers did not raise a forfeiture argument in the present § 2255 motion.

We note, however, that the propriety of the forfeiture is currently pending before this court in an appeal from the denial of a pro se § 2255

motion filed by Silvers. That appeal is docketed as No. 95-6975.

 11