USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 96-2150

UNITED STATES OF AMERICA,

Appellee,

v.

ISIDRO RODRIGUEZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________
____________________

Before

Boudin, Circuit Judge,

_____________
Aldrich, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________

____________________

Bjorn Lange, Federal Defender Office, for appellant.

___________
Jean B. Weld, Assistant United States Attorney, with whom
____________
Paul M. Gagnon, United States Attorney, and Peter E. Papps,
______________
______________
Assistant United States Attorney, were on brief, for appellee.

____________________

April 30, 1997

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

This case raises an issue of

significance

in the administration

of criminal justice, one

of first impression for this court.

It concerns the power of

a district court

to resentence on

remaining

the

after

sentence

the counts of

on another

has

been

originally convicted in

1993

vacated on a petition under 28 U.S.C.

Isidro Rodriguez was

on four cocaine trafficking counts,

for which he received

on one

relation

U.S.C.

or carrying a

drug trafficking

924(c),

on appeal.

see 21 U.S.C.
___

841(a),

for

which

he

and

firearm during and

crime,

consecutive sentence of sixty months.

affirmed

2255.

a sentence of sixty-three months,

count of using

to a

count

conviction

in violation

received

in

of 18

mandatory,

Those convictions were

See United States v. Rodriguez, 29 F.3d

___ _____________
_________

619 (1st Cir. 1994) (per curiam).

On December

Bailey
______

v.

1995, the

United States,
_____________

clarified the

definition

924(c), changing the

Id.
___

6,

116 S.

Supreme

Ct.

of the term

law in

this and

Court

decided

501 (1995).

Bailey
______

"use" in 18 U.S.C.

many other

circuits.

Relying on Bailey, Rodriguez filed a pro se motion under

______
___ __

28 U.S.C.

924(c)

2255,

firearms

seeking to vacate his conviction

count.

Rodriguez's conviction

Bailey.
______

The

on that

government

on the

conceded

count could not

that

stand after

-22

On March

Rodriguez's

vacated,

1, 1996, the district

conviction and sentence on the

thereby

five-year sentence.

eliminating the

court ordered that

924(c) count be

mandatory,

consecutive

Rodriguez remains in the custody of

the

Bureau of Prisons as he has not finished serving his sentence

for the drug trafficking counts.

The

Rodriguez

district court appointed counsel to represent

and directed the

whether Rodriguez

could be

The court also ordered

After briefing

sentencing

calculus based

counts.

Guidelines

on the

2255

PSR's recommendation of a

count was

that

and First Circuit

the

of the

ruled that

part of

relationship between

concluded

the drug

accepted

application

the district court

court

Rodriguez on

court

drug counts.

the firearms

The

jurisdiction, under

district

resentenced on the

and argument,

sentence on

resentence

the issue of

a revised presentence report ("PSR").

Rodriguez's

various

parties to address

it

revised

the

had

precedent, to

trafficking counts.

factual

The

conclusions

and

PSR, including

the

two-level increase for

of a dangerous weapon during a drug offense.

possession

This yielded a

total

offense level

of 28,

range of seventy-eight to

court

drug

and a

ninety-seven months.

resentenced Rodriguez to

trafficking counts.

corresponding sentencing

seventy-eight months

That is

-33

The district

less than

on the

his original

total sentence on all counts of 123 months, but more than his

original sentence of sixty-three months for the drug counts.

Rodriguez

lacked

doing

argues that

jurisdiction

so

violated

the

to resentence

his right

district court

him

not

to

simply

and, further,

be

that

placed twice

in

jeopardy for the same offense and his right to due process of

law.

Rodriguez's argument is complicated for

fact

that, under

the

explicit interaction

given

on the

received

sentencing

Sentencing Guidelines,

between the sentence

drug trafficking

on the

judge

firearms count.

to

increase

counts

The

the

him by the

there was

an

he was originally

and the

sentence he

Guidelines direct

sentence

for

drug

trafficking offense by two

the possession

See
___

of a

U.S.S.G.

levels where the offense involves

dangerous weapon, including

2D1.1(b)(1).

However,

to

a firearm.

avoid

double

counting, the Guidelines do not permit such an enhancement of

the drug

sentence if the

under certain

provide

conduct.

defendant has also

been convicted

statutes, including 18 U.S.C.

mandatory

U.S.S.G.

minimum

2K2.4

penalty

for

(comment. n. 2

924(c), which

weapons-related

& backg'd).

example, if the jury had acquitted Rodriguez of the

offense

under

18

nonetheless found,

Rodriguez

U.S.C.

924(c),

but

by a preponderance of

possessed a

firearm during

the

For

firearms

judge

had

the evidence, that

the drug

crimes, the

-44

judge

should

have,

under

the

Guidelines,

increased

the

sentence for the drug offenses.

The

district court

this resentencing

so enhanced the

judge apparently

was similar to that

thought that

hypothetical case and

sentence for the drug offenses.

course, an approach abundant with common sense.

This is, of

It also fits

with the

notion that, where there

the various sentences form a

and

if part

of the

are multiple convictions,

package meant to work

package of

convictions is

together

undone, the

trial judge ought to be free to reconsider how all the pieces

should fit together,

in order to do justice and

to meet the

requirements of the Guidelines.

But

such a

common sense

approach to

the problem

must fairly meet Rodriguez's objections that Congress did not

grant jurisdiction

writ

to resentence and that

broadly, poses

constitutional rights

assertion

far

from hypothetical

of a criminal

such an approach,

dangers to

defendant.

the

Rodriguez's

is that to increase a sentence as a consequence of

a defendant's successful challenge to one count of conviction

penalizes

the exercise of the right to collaterally attack a

conviction.

Such

deprives

the

prisoner of his settled expectations about the length of

his

sentence,

our

and

jurisprudence,

a sentencing

violates

that a

the

enhancement

rule,

defendant only

crimes of which he is convicted.

-55

embedded

be sentenced

in

for the

Rodriguez

trial

courts have

starts with

only

an

argument

such jurisdiction

that

federal

as Congress

has

granted and that there is no grant of jurisdiction to revise,

on

collateral attack,

final.

Rodriguez argues

a court's

sentence that

has already

that Congress has expressly limited

ability to modify

an already imposed

the three situations outlined in 18 U.S.C.

the circumstances described in that

here,

and

so,

he contends,

resentence him to the

or

by Rule 35 of

18 U.S.C.

become

the

sentence to

3582(c).

Two of

section are inapplicable

district

court

may only

extent "expressly permitted by statute

the Federal Rules

of Criminal Procedure."

3582(c)(1)(B).

On direct appeal (in contrast to the

2255

review

here),

this

court has

permitted

trafficking conviction where

resentencing

defendant's

for a

drug

924(c) conviction

was set aside, post-Bailey:

______

Since

it

is

conceivable

that

our

disposition of the [firearms] count might

affect the sentencing calculus

in regard

to the [drug trafficking] count, we honor

counsels' joint request and remand to the
district

court

reconsideration
originally

for
of

imposed

possible

the
on

sentence
the

drug

trafficking count.

United States v. Valle, 72 F.3d 210, 218 (1st Cir. 1995).

_____________
_____

least

seven other circuits

when a conviction

light

under

have similarly

At

determined that,

924(c) is reversed

on appeal
__ ______

in

of Bailey, it is appropriate to remand to the district

______

-66

court

for resentencing

United States
_____________

v.

on the

Jackson,
_______

103

remaining convictions.

F.3d

561,

569

(7th

See
___

Cir.

1996)(citing cases).

Rodriguez concedes that such resentencing on remand

after direct

appeal may be

2106 permits the appellate

appropriate because 28

U.S.C.

court to "affirm, modify, vacate,

set aside or reverse any judgment . . . brought before it for

review"

and to

"remand the

further

proceedings to

circumstances."

language

28

be

cause and

had as

U.S.C.

may

2106.

. .

require such

be just

But that

under

the

statutory

is inapplicable here, Rodriguez argues, because the

drug trafficking convictions in this case have already become

final after appeal;

power

thus,

to the appellate court

_________

district court on

that his

sentence

2255

and

2106's

broad grant of

cannot be read

2255 motion.

and

to empower the

Rodriguez further argues

motion only sought

convictions,

remedial

that

review of his

his

924(c)

drug trafficking

sentence is therefore not properly "before" any court.

We

argument:

statute

agree

courts

or

Rule

jurisdiction.

(1st

Cir. 1994)

"correct"

with

are not

35

the

basic

free

must authorize

See United States

___ _____________

(district

a sentence

to

tenet

resentence

such

Rule 35).

-77

an

v. Fahm, 13
____

court lacked

other than

of

Rodriguez's

at will;

exercise

of

F.3d 447, 453

inherent power

as expressly

to

permitted by

However,

language

Rodriguez's

of 28 U.S.C.

argument

fails because

2255 expressly vests

some power in

the district court:

If

the court finds that the judgment was

rendered

without

jurisdiction, or

the sentence imposed

by

law or

attack,

otherwise open

or that

denial

was not

or

to

render

the

that

authorized

to collateral

there has

been such

infringement

of

constitutional rights of the

judgment

a
the

prisoner as

vulnerable

to

collateral attack, the court shall vacate

and

set the

judgment

aside

discharge the prisoner or

or

grant

new trial

and

shall

resentence him
or correct the
________________

sentence as may appear appropriate.

___________________________________

the

28 U.S.C.

2255 (emphasis added).

This grant of power to "correct the sentence as may

appear appropriate" resolves the jurisdictional issue against

Rodriguez.

In

decision in

United States v.
_____________

(4th Cir. 1997)

this,

we agree

with

the Fourth

Hillary, 106
_______

Circuit's

F.3d 1170,

1172

and the Seventh Circuit's decision in United

______

States v. Binford, 108 F.3d 723, 728-29 (7th Cir. 1997).

______
_______

This

still

leaves

the

question of

"appropriate" to "correct the sentence."

Smith,
_____

103 F.3d

531 (7th

Cir.

when

it

is

In United States v.
_____________

1996), the

Seventh Circuit

ruled in favor of the exercise of jurisdiction to correct the

remaining drug

trafficking sentence

where a prisoner,

on a

motion

under

2255,

consecutive five-year

succeeded in

vacating his

924(c) sentence.

mandatory

The Seventh Circuit

found it "appropriate" to correct the sentence, because "[i]f

-88

multicount sentence is a package

. . . then severing part

of the total sentence usually will unbundle it."

Id. at 534.
___

The Seventh

that

the

Circuit further noted,

question of

the

jurisdiction

cannot turn

"sentencing

packages" but

Sentencing

Reform

Guidelines.

Act

of

1984

district

courts

crimes."

Burns v.
_____

We

also agree

"appropriate"

entirely on

sentence

persons

manner

convicted

Seventh Circuit's

while the Guidelines have altered

of the

"The Sentencing

United States, 501 U.S. 129,

_____________

with the

package, they have

the

that

conceptions of

the effect

at 534-35.

revolutionized

agree,

exercise of

older

must consider

See id.
___ ___

and we

in

of

which

federal

132 (1991).

conclusion that,

the idea of the sentencing

not eliminated the

concept.

Smith,
_____

103

F.3d. at 534.

In a pre-Guidelines

case, this court both

adopted

the

concept of

the

sentencing package

limits to its applicability.

and suggested

In United States v.
_____________

some

Pimienta_________

Redondo, 874 F.2d 9 (1st Cir. 1989) (en banc), the defendants
_______

received consecutive

of

two

drug trafficking.

counts

of

11-12.

On

conviction

offense, reversed

counts,

sentences for convictions on two counts

appeal, this court

actually

ruled that the

constituted

the defendants' convictions on

single

one of the

and remanded for resentencing on the second.

Id. at
___

The district court then resentenced the defendants on

the remaining count

to a term as long as

-99

the combined total

of the prior, consecutive

12.

Defendants again

defendants' double

sentences on both counts.

appealed. The en

jeopardy

banc court rejected

and due process

challenges to

the resentencing, holding that:

[a]fter

an

appellate court

[sentencing] package and

more

charges

from

its

unwraps the

removes one

or

confines,

the

sentencing judge, herself, is in the best

position

to assess

the

Id. at
___

effect

of

the

withdrawal and to redefine

the package's

size and shape . . . .

Id. at 14.
___

Breyer

In light of the

and

Judge

package" holding

concurring opinion of then-Judge

Campbell, Pimienta-Redondo's
________________

should be confined to

"sentencing

situations where the

same basic course of conduct underlies both the vacated count

and the count on

basic conduct

which the conviction is affirmed,

determines the sentence.

Id. at
___

and that

17 (Breyer,

J., concurring).

In

this case, the

Guidelines establish

a similar

relationship of interdependence between the vacated count

conviction,

sentence:

the affirmed

count of

conviction, and

Both Rodriguez's conviction under

enhancement imposed in resentencing

of

the new

924(c) and the

him turn on the presence

of a weapon

conviction

during a drug trafficking offense.

_________________________

for that

The Guidelines

acts

of

basic course

require

of conduct

sentencing judges

Rodriguez's

was affirmed.

to consider

"all

and omissions . . . that occurred during the commission

the

offense

of

conviction

-1010

."

U.S.S.G.

1B1.3(a)(1).

Thus,

under both the

Guidelines and our

Guidelines precedent, Rodriguez's sentence may

pre-

be considered

as a "sentencing package."

Rodriguez

argues

that,

because

the

924(c)

firearms sentence was consecutive, it is not part of the same

"sentencing package"

relies

on

as his

U.S.S.G.

5G1.2,

drug trafficking sentence.

which

He

governs sentencing

on

multiple counts of conviction, and provides:

(a) The sentence to be imposed on a count

for

which

the

consecutive sentence

statute

mandates

shall be determined

and imposed independently.

U.S.S.G.

5G1.2.

That the

calculated independently

firearms

sentence had

does not mean that

to be

the sentence on

the

drug

sentence;

counts did

to

not depend

the contrary,

relationship. See U.S.S.G.

___

Thus,

we

hold that,

interdependent

vacated

on

the Guidelines

where

and

of that

specify such

2K2.4, comment. (n.2 & backg'd).

the

Guidelines contemplate

relationship between

conviction

the existence

the

the

sentence

sentence

for

the

for

an

the

remaining

convictions -- a sentencing package1 -- a district court may,

on

petition under

28 U.S.C.

2255, resentence

on the

____________________

1.

To the extent that the Seventh Circuit's opinions in

Smith and Binford can be read to permit resentencing whenever

_____
_______
there is a sentencing package, and to define a "sentencing
package" as "the bottom line, the total number of years (or
under the guidelines, months) which effectuates a sentencing
plan," Smith, 103 F.3d at 533, we part company and find it
_____

unnecessary to state so broad a rule.

-1111

remaining convictions.2

We leave to another day the question

of whether there is such authority when the Guidelines do not

contemplate such an interdependent sentencing package.3

Rodriguez's

better

than

does his

two

constitutional

jurisdictional

claims

claim.

fare

Because

no

the

consideration of

does not,

acquitted conduct in fashioning

absent special

a sentence

circumstances, violate

either the

Due Process or the Double Jeopardy Clause,

see United States

___ _____________

v.

the fact that the

Watts, 117 S.
_____

Ct. 633, 636-37 (1997),

district court considered the conduct underlying the

conviction

in enhancing

does not in itself

that

there are

vindictiveness

F.2d

for the

violate the Constitution.

valid

due process

drug offense

To

concerns about

on resentencing, the

the Supreme Court in

(1969), and

the sentence

this court in

at 12-14, adequately

the extent

possible

safeguards announced by

North Carolina v. Pearce, 395

______________
______

applied by

vacated

address this

U.S. 711

Pimienta-Redondo, 874
________________

problem.

See also
___ ____

United States
______________

v. Twitty,
______

United States v.
_____________

contours

of

cert. denied,
_____ ______

104 F.3d

Clark, 84
_____

Pearce
______

F.3d 506

presumption

117 S. Ct. 272

(1996).

1,

2 (1st

(1st Cir.)

Cir. 1997);

(outlining

of

vindictiveness),

On

the facts of this

____________________

2.

There may be occasions where the authority to resentence

works in a defendant's favor.

There may be occasions where

the trial judge believes the interrelationship requires a

reduction in the remaining sentence.

3.

The Sentencing Commission may wish to address this topic.

-1212

case, no claim of vindictiveness has been, or could be, made.

There

is another

theory

under the Due Process Clause.

579

F.2d

95 (1st

substantial

his

sentence

Cir.

advances

Relying on Breest v. Helgemoe,

______
________

1978),

he argues

that

he was

"a

period of time" -- more than three years -- into

when

he

was

resentenced,

"fundamentally unfair, and thus

that Rodriguez

court to alter

even an

and

that

it

is

violative of due process for

illegal sentence

in a

way which

frustrates a prisoner's expectations by postponing

release

date far beyond that

Here, Rodriguez's

years

earlier

new release date

than

his

psychological unfairness

issue here.

originally set."

is still more

original

release

described in Breest is
______

his . . .

Id. at 101.
___

than four

date;

the

thus not an

We acknowledge that, on other facts, due process

concerns could be raised.4

____________________

4.

We have said that there may be limits on the right to

correct an erroneous sentence in cases "with extreme facts:

a long delay, actual release of the defendant from custody
based on the shorter sentence, singling out of the defendant
for a belated increase apparently because of his commission
of another offense for which parole revocation would have
been available, and other troubling characteristics."

United
______

States v. Goldman, 41 F.3d 785, 789 (1st Cir. 1994); see also
______
_______
___ ____
DeWitt v. Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993)(noting
______
__________
that there is "no single touchstone" for determining if delay
in resentencing is inconsistent with the Due Process Clause
and listing considerations including the lapse of time, the
reasonableness of defendant's expectations, prejudice, and
diligence exercised by the state).

Delay may, in future

cases, be less of an issue because of the strict time limits

that 28 U.S.C.

2255 now imposes on the filing of petitions.

-1313

We

think

that,

given

the

language

of

2255

discussed earlier

custody,

and the

he could

fact that Rodriguez

have no

settled expectation

is still

in

of finality

with

respect to a portion of his total sentence which, under

the

Guidelines,

is

part

of

sentencing

there is

Clause here.

This case does not involve a petitioner who had

fully

discharged

his

resentenced, see
___

United States v.
_____________

(4th Cir. 1996),

and we

of the

package.

Accordingly,

already

no violation

sentence

Affirmed.
_________

and

then

Silvers, 90 F.3d
_______

intimate nothing

jeopardy consequences of such a situation.5

F.3d at 1173.

Double Jeopardy

about the

was

95, 101

double

Cf. Hillary, 106

___ _______

____________________

5.

This scenario is not farfetched.

Sometimes a case takes

such time to wend its way through the court system that the
prisoner is released by the time it is resolved.

And,

because convictions carry collateral consequences even after

incarceration has ended, appeals may be brought after release
in an effort to avoid those consequences.
States, 470 U.S. 856, 864-65 (1985).
______

See Ball v. United

___ ____
______

-1414