NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
Perl Glen VAN PELT; John Lee Wacker; Leroy Allen Cooley;
Susan Mary Boyle; Lewis Theodore Wacker, also
known as Louie Wacker, Defendants-Appellants.
Nos. 96-3350, 96-3364, 96-3365, 96-3386, 96-3349.
United States Court of Appeals, Tenth Circuit.
Dec. 1, 1997.
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
ORDER AND JUDGMENT*
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument.1
Defendants Perl Glen Van Pelt, Leroy Allen Cooley, Susan Mary Boyle, John Lee Wacker, and Lewis Theodore Wacker were each convicted on several counts of drug related offenses and on counts of unlawful use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On appeal, we, inter alia, reversed the § 924(c) convictions as to each defendant because of the Supreme Court's decision in Bailey v. United States,
After remand, the government moved to dismiss the remanded § 924(c) count as to each defendant and no new trial was held. The district court then notified the defendants prior to resentencing that it was considering an enhancement pursuant to USSG § 2D1.1(b)(1) for possession of a firearm during a drug trafficking offense. The government then filed a motion requesting such an enhancement and defendants filed objections, stating that the limited scope of the mandate on remand precluded the enhancement. The district court ordered the preparation of a new presentence report, which recommended the § 2D1.1(b)(1) enhancement. At the resentencing hearing defendants renewed their objections to the enhancement, and the court imposed sentences reflecting a two-level enhancement under § 2D1.1(b)(1).
On appeal the defendants each raise one issue: whether the district court had jurisdiction to enhance defendants' sentences due to the limited scope of our mandate on remand.2 In a published opinion, the district court thoroughly analyzed and rejected this assertion. United States v. Van Pelt,
Accordingly, the sentence of each defendant is AFFIRMED.
Notes
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
We combine these separate appeals for disposition because they raise the same issues
Van Pelt and John Wacker also argue that the facts in the record do not support their sentence enhancement under § 2D1.1(b)(1). We reject this argument and find that the enhancement was proper under the factual circumstances of this case, which are set forth in our prior opinion. John Wacker also filed a pro se "Addendum to Appellant's Brief" containing various contentions, including that the superseding indictment was unconstitutional, that the district court lacked jurisdiction to convict him for the drug offenses, that the U.S. Attorney conspired with the Kansas authorities to violate his constitutional rights, and that the government had the burden of proving that he is not innocent of legalized possession of hemp. We find these arguments meritless