*1 judge is cor- question whether the district
rectly
these facts when he concluded
America, Appellee,
UNITED STATES of
safety
provision
apply.
valve
that the
did
HARRISON, Jr.,
H.
Charles
also
question in
court addressed a similar
Our
Chuck, Appellant.
known
Burke,
States v.
Cir.1996). purposes We held that for of 18 No. 96-2544WM. 3553(f) 5C1.2(2) of Section Appeals, United States Court of Guidelines, Sentencing is used in firearm Eighth Circuit. “weapon with an if the connection offense Submitted March 1997. potential facilitated or had the to facilitate offense.” Id. at May Decided While the 1997.
[the] Wright’s guns at the motel were not in Rehearing Suggestion Rehearing arrested, they at the time he session was July En Bane Denied possession were in his at the he traveled time marijuana with the Dakota and South him available to while he traveled be-
were targeted
tween the farms and motel The motel room indicia
room. also contained drug trafficking, and the cash $6500 locating marijuana Merely
maps plants. guns
because the were not in his
at the time of his arrest mean he possess
did not them connection with his
offense, marijuana. the manufacture Wilson, (3d States v.
Cir.1997) (Defendant possess weap- did not possessed time of arrest
ons but had
weapons dealing in connection with dur- year.) previous Wright’s was offense weapons
ongoing, the were at the mo- found point was the
tel which focal of the operation,
planting transported guns marijuana,
with the and other indicia
trafficking were found in the motel room in guns. proximity
close to the It clear that did not
the defendant meet his burden of
showing possess that he did not these fire- in connection
arms with his offense.
Thus, affirm the we district court’s refusal to safety
apply provision. valve *2 Hunt, City, argued, M. Kansas MO
Susan (John O’Connor, brief), appel- for P. lant. Parker, Attorney, Assistant U.S.
Marietta Hill, L. argued, City, (Stephen Kansas MO Jr., brief), appellee. on the for FAGG, HEANEY, and MORRIS Before ARNOLD, Judges. Circuit SHEPPARD FAGG, Judge. Circuit pleaded guilty to con- Charles Harrison base, spiracy cocaine see 21 to distribute 841(a), (1994), using §§ U.S.C. crime, see 18 U.S.C. 924(c). § The court sentenced Har- district rison for the offense and sixty for consecutive months offense. appeal, After Harrison lost Supreme Bailey v. Court decided — -, U.S. S.Ct. (1995), the defi- L.Ed.2d which narrowed “using” of a firearm within the mean- nition 924(c). ammunition, § this of With new § filed a 2255 motion to 28 U.S.C. vacate his sentence. The Government underlying gun convic- conceded Harrison’s light Bailey, tion be reversed but should argued the district court should enhance Sentencing of a firearm. See U.S. Guide- (1996). 2Dl.l(b)(l) § Manual Because lines 2Dl.l(b)(l) en- bar Guidelines counting when defen- hancement double 924(c), violating convicted see id. dant is Friend, n.2; government prevented adoption 2K2.4 States concession Cir.1996), permits view after 924(e) conviction, reversal of but court did not consider whether the enhance- court of appeals had under 28 ment at Harrison’s sentenc- § 2106 to vacate defendant’s entire ing. *3 resentencing drug and remand for on convic- resentencing Following hearing, a the dis- tion). sixty trict court month term vacated the originally gun imposed on the erroneous con- modify The can previ district court a viction. The district court found the firearm ously imposed imprisonment term of if ex possession imposed enhancement and permitted pressly by statute. See 18 U.S.C. imprisonment a revised term of 151 3582(c)(1)(B) (1994). Harrison contends conviction, thirty drug on the months less permit § 2255 does modification of his original than sentence. Harrison’s total The drug disagree. sentence. We Section 2255 Harrison, district court “The told sentence provides: [imposed] today you sentence that is the A prisoner custody in under ... sentence drug charge would the [on have received claiming right upon the to be released the your sentencing May in 1992] had ground that imposed the sentence was in mandating gun there not been a count a violation of the or Constitution laws of the sentence____” year consecutive five Harri- may United ... States move the court appeals drug son his revised sentence. We imposed vacate, which the to set sentence____ affirm. aside or correct the If the court finds ... imposed that the sentence did not Because Harrison by was not law ... authorized the court drug the in his conviction or sentence 2255 judgment shall vacate and set the aside motion, the Harrison contends district court and discharge shall the or resen- jurisdiction lacked him to resentence on the prisoner] grant tence a [the or new trial or drug conviction and should have va may appear appro- correct the sentence as gun cated his erroneous If Harri priate. successfully gun son had his convic attacked gives The statute district courts broad and appeal collaterally, tion on than direct rather flexible remedial to resentence a our permit earlier cases would his resentenc defendant and to the sentence correct as ing. Bailey We when have held that re appropriate. 106 Hillary, See F.3d at 1171. 924(c) quires reversal of a conviction on remedy put A appropriate seems is to appeal, may court consider position § 2255 in the same defendants unchallenged drug whether an by appeal permitting defendants on direct should be enhanced of a fire 1172, resentencing, impose and see id. at to Behler, arm. See v. United States 100 F.3d sentence that would been rendered but have (8th 632, Cir.1996); United States v. for the error. Whether the dis- (8th 301, Cir.1996); Rehkop, 96 F.3d power depends court has so trict to do on the Thomas, 479, 93 F.3d States §in of the term breadth “sentence” (8th Cir.1996). ease, In this we must decide Binford, Reading 108 F.3d the See resentencing permissible whether similar narrowly, statute Harrison contends gun after in reversal of a a collat specific authorizes modification of the eral Agreeing with the circuits imprisonment term of associated with the issue, that have decided the we conclude the attacked, here, single count of the power district court had to resentenee Harri side, the gun sentence. On the other Gov- son on his conviction. See United contends that Harrison filed ernment when Binford, States v. F.3d 728-29 challenging legality §his 2255 motion Cir.1997)(28 jurisdic § 2255 confers conviction, gun all put his issue interde- tion); Hillary, 106 F.3d States v. components pendent of his total sentence. (4th Cir.1997) 1170, 1171-73 (same); see also Handa, sixty mandatory United States v. Because the month term (9th Cir.1997) (holding precedent circuit and for the conviction and firearm en- (E.D.Ark.1996) finality in (expectation of ful- drug conviction are in-
hancement
term).
ly
imprisonment
served
the terms of
terdependent,
on the
convictions
imposed
Last,
Govern
Harrison contends the
within
“sentence”
constitute a
seeking
gun possession
ment is
enhance
728;
Binford,
F.3d
§ 2255. See
penalize
filing
him for
ment
at 1172. The district
Hillary,
motion,
thus,
violates
gun posses-
took Harrison’s
originally
court
right
process.
to due
find no evi
We
by sentencing him for us-
into
sion
account
Harrison’s resen
dence
vindictiveness
crime,
which di-
been
tencing. Harrison’s total sentence has
enhancing
the court from
rectly prevented
years
three
and the dis
reduced
almost
sentence for firearm
according
trict
court resentenced
the district court vacated
session. Once
*4
original sentencing plan.
the court’s
See
on
imposed
the erroneous
the term
Shue,
F.2d at 1115-16. In these circum
825
conviction,
appropri-
court could
the district
stances,
resentencing
we conclude Harrison’s
interdependent
ately
correct
process.
violate
due
by applying
firearm
the
en-
term
a
Imposing
sentence
the Guidelines
723,
Binford, 108 F.3d
hancement. See
appropriate
make
for Harrison’s conduct is
728-29; Hillary,
power unchal- to resentence Harrison on the Therefore, I would reverse the district lenged depends on the breadth of court and vacate the enhanced sentence on in the term “the sentence” section 2255. I the count of conviction that Harrison never convinced, however, am that in the context of challenged in this section 2255 provision, the entire the term’s clearly specifical- limited to the sentence
ly by the defendant on collateral
appeal. “The sentence” is used the stat- scope
ute to define the of a under (i.e., prisoner’s
section 2255 claim “that the imposed was violation of the Con- States”)
stitution or laws of the United
again, to establish relief that the district (i.e., court can afford if the claim has if merit Daymon BROWN, Appellant, E. imposed
“the sentence was not authorized law ... the court shall vacate and set the judgment discharge pris- aside and shall *5 McDONNELL DOUGLAS CORPO may oner ... or correct the sentence as RATION, Maryland corpora appear appropriate.”). For the statute to tion, Appellee. sense, make “the sentence” must have a con- and, meaning reading provision stant as a No. 96-3442.
whole, logically that limited to the Appeals, States Court of collaterally pris- Eighth Circuit. oner. Because Harrison either his or sentence on the April Submitted count, simply that sentence is not before the district court in this section May Decided Moreover, language of section 2255
expressly provides that relief under the stat-
ute is available to a in the
custody only par- of the United States. The
ty. seeking respect “relief’ with to the (assuming argu- for the sake of
ment that an increased can be purposes)
called “relief’ for gov- these is the agree
ernment. I with the observation made that,
by Judge Eisele “no matter how hard tries,
one one cannot shoehorn the persons
United States into the class who
are entitled to seek relief under [section
2255].” Warner v. United (E.D.Ark.1996).
F.Supp. fact, In
given only prisoner is entitled to relief hard-pressed
under section I am
envision a circumstance in which a district
court would ever use section 2255 to enhance previously-imposed firmly I be- if
lieve that a section 2255 movant elects not challenge any part of the total sentence trial,
imposed at if even he loses on the