On Appeal from the United States District Court for the Western District of Pennsylvania
(D.C. Crim. No. 95-00048-3)
BEFORE: MANSMANN and GREENBERG, Circuit Judges, and HILLMAN, District Judge *fn*
GREENBERG, Circuit Judge.
Submitted under Third Circuit Rule LAR 34.1(a) October 10, 1996
(Filed: October 30, 1996)
Appellant Damond Goggins appeals from a judgment of conviction and sentence in this criminal case. He limits his appeal to the contention that the district court improperly imposed a 2-level enhancement of his sentencing level under U.S.S.G. Section(s) 2D1.1(b)(1) ("section 2D1.1(b)(1)") for possession of a firearm. The issue before us is whether the court was barred from imposing this enhancement by the circumstance that the court previously had sentenced Goggins to a later vacated five-year sentence for using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c)(1) ("section 924(c)(1)").
I. Background and Procedural History
The case originated with Goggins's arrest on August 10, 1994, when the police, while executing a search warrant in Pricedale, Pennsylvania, found him lying on a bed with a loaded firearm in a bedroom in which there also was a substantial quantity of cocaine base. The ensuing procedural steps in the case had a routine start but later took an unusual turn. A grand jury indicted Goggins for possession with intent to distribute in excess of five grams of cocaine base in violation of 21 U.S.C. Section(s) 841(a)(1) and 841(b)(1)(B)(iii) and for using and carrying a firearm during and in relation to a drug trafficking crime in violation of section 924(c)(1). Goggins pleaded guilty to both counts of the indictment. The district court calculated his total offense level as 23 and his criminal history category as IV. These calculations yielded a sentencing range of 130 to 147 months because of the requirement in section 924(c)(1) that the court impose a five-year sentence on that charge consecutive to the sentence on the drug possession count. The court sentenced Goggins to a 130-month term divided between 70 months on the possession charge and 60 months on the weapons offense. The government did not urge that the court increase his sentencing level for possession of a firearm pursuant to section 2D1.1(b)(1) and the court did not do so. Goggins then appealed.
While the appeal was pending the Supreme Court decided Bailey v. United States, 116 S.Ct. 501 (1995), in which it held that section 924(c)(1) requires "active employment" of a firearm and not mere "proximity and accessibility" during the drug trafficking offense. Id. at 505. Goggins and the government agreed that Goggins's conduct did not violate section 924(c)(1) as construed in Bailey. Consequently they stipulated that the appeal would be dismissed in order that Goggins could move in the district court to vacate his conviction under section 924(c)(1) so that his sentence could be reduced by five years. The parties, however, could not agree on whether section 2D1.1(b)(1) would be applicable on the resentencing and thus they did not make a stipulation on that point. On December 29, 1995, in accordance with the stipulation, we dismissed the appeal.
Goggins then moved in the district court to vacate the sentence and on March 6, 1996, the district court entered an order vacating the sentence. The district court also ordered that the parties file briefs on the question of whether section 2D1.1(b)(1) would be applicable at the resentencing.
On March 11, 1996, the district court filed Amended Tentative Findings and Rulings Concerning Disputed Facts or Factors. The court held that section 2D1.1(b)(1) was, in terms, applicable as the guideline calls for imposition of the enhancement "if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. Section(s) 2D1.1, Commentary n.3. In this regard the court relied principally on United States v. Mitchell, 31 F.3d 271, 277-78 (5th Cir.), cert. denied, 115 S.Ct. 455 (1994) (holding that presence and accessibility of weapon trigger enhancement). Here the weapon clearly was present in the bedroom when the police arrested Goggins and it was not improbable that the weapon was connected with the offense. For two reasons the court would not follow United States v. Watts, 67 F.3d 790, 796-98 (9th Cir. 1995), cert. denied, 116 S.Ct. 1369 (1996), which held that a court could not impose a section 2D1.1(b)(1) enhancement if a jury acquitted the defendant under section 924(c)(1). First, a jury had not acquitted Goggins. Second, the court found Watts unpersuasive as Watts reached a result contrary to that in the three other cases which the court cited holding that an acquittal on a section 924(c)(1) count does not preclude a section 2D1.1(b)(1) sentencing enhancement. See United States v. Billops, 43 F.3d 281, 288 (7th Cir. 1994), cert. denied, 115 S.Ct. 1389 (1995); United States v. Romulus, 949 F.2d 713, 716-17 (4th Cir. 1991), cert. denied, 503 U.S. 992, 112 S.Ct. 1690 (1992); United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir. 1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1590 (1992).
The court next rejected Goggins's argument that the application of section 2D1.1(b)(1) violated double jeopardy principles as we have held repeatedly that if convictions on some counts of a multi-count indictment are vacated the court may resentence the defendant to enhanced sentences on the remaining counts. See, e.g., United States v. Busic, 639 F.2d 940, 949-50 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055 (1981). Finally, the court rejected Goggins's arguments that collateral estoppel, the law of the case doctrine, and waiver precluded application of section 2D1.1(b)(1).
The court then calculated Goggins's adjusted offense level as 25 using the section 2D1.1(b)(1) enhancement. Thus, predicated on a criminal history category of IV, he was subject to a sentencing range of 84 to 105 months. The court imposed a sentence of 84 months to be followed ...