Before: STAPLETON and MANSMANN, Circuit Judges, RESTANI, Judge, Court of International Trade. *fn1
Barry Davis appeals the district court's finding of jurisdiction to resentence on a count related to the 18 U.S.C. Section(s) 924(c) conviction successfully challenged in Davis' 28 U.S.C. Section(s) 2255 motion. In resentencing Davis, the district court vacated the 60 month sentence imposed for the Section(s) 924(c) conviction and, as required under the United States Sentencing Guidelines ("U.S.S.G.") Section(s) 2D1.1(b)(1), imposed a two level enhancement for possession of a firearm during a drug crime. The district court also held that the resentencing did not violate Davis' due process rights. We will affirm.
Appellant, Barry Davis, was convicted after jury trial of: six counts of making false statements in connection with the acquisition of firearms, 18 U.S.C. Section(s) 922(a)(6); one count of possession with intent to distribute cocaine, 21 U.S.C. Section(s) 841(a)(1); one count of making an apartment available for drug distribution, 21 U.S.C. Section(s) 856; and one count of using a firearm during and in relation to a drug trafficking crime, 18 U.S.C. Section(s) 924(c). The district court originally sentenced Davis to a term of imprisonment of 123 months. The sentence included a term of 63 months for the drug counts, 60 months for the false statement count, and 60 months for the Section(s) 924(c) count. The terms for the drug and false statement counts were to be served concurrently, while the term for the Section(s) 924(c) count was to be served consecutively to the other terms.
Davis subsequently filed a motion under 28 U.S.C. Section(s) 2255 seeking to vacate, set aside, or correct his sentence. He claimed that his conviction under Section(s) 924(c)(1) for use of a firearm during a drug trafficking crime was inconsistent with the Supreme Court's ruling in Bailey v. United States, 116 S. Ct. 501 (1995). *fn2 The district court agreed, vacated the Section(s) 924(c) conviction and ordered resentencing on the remaining counts.
On August 13, 1996, the district court held that it had jurisdiction to resentence Davis on the remaining unchallenged counts, finding support in both the language of Section(s) 2255 and the sentencing package doctrine. United States v. Davis, No. Crim. 92-218, Civ. 96-2540, 1996 WL 466940, at *2-3 (E.D. Pa. Aug. 13, 1996). As the Bailey decision invalidated Davis' Section(s) 924(c) conviction, the Sentencing Guidelines no longer barred application of a two level enhancement pursuant to U.S.S.G. Section(s) 2D1.1. *fn3 Id. As a result, Davis' offense level was raised from level 26 to level 28. Combined with a Criminal History Category I, this resulted in an imprisonment range of 78 to 97 months. The district court sentenced Davis to 95 months. The court noted that this would have been the result had Davis never been convicted of the Section(s) 924(c) charge at the time of the original sentencing. Davis, 1996 WL 466940, at *2.
Davis appeals the district court's judgment of sentence on two grounds: (1) the court lacked jurisdiction to resentence Davis on the unchallenged counts of his multicount conviction, and (2) resentencing Davis violated his due process rights. We have jurisdiction to adjudicate this appeal pursuant to 28 U.S.C. Section(s) 1291. Review is plenary as to both issues. United States v. Barnhart, 980 F.2d 219, 222 (3d Cir. 1992); Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991).
The issue before the court is whether the district court had jurisdiction to recalculate the aggregate sentence when the petitioner's Section(s) 2255 motion successfully challenged only one of the underlying convictions, the Section(s) 924(c)(1) conviction. Two circuits have ruled that district courts have jurisdiction to resentence on the unchallenged but related drug counts following a successful Section(s) 2255 motion. United States v. Hillary, No. 96-7463, 1997 WL 61398, at *3 (4th Cir. Feb. 14, 1997)(finding jurisdiction under Section(s) 2255 to resentence because "sentence" is not a discrete, offense specific term but an aggregate); United States v. Smith, 103 F.3d 531, 534-535 (7th Cir. 1996) (finding jurisdiction under Section(s) 2255 by applying sentencing package doctrine); see also United States v. Binford, 1997 WL 91851 (7th Cir. Mar. 4 1997) (same). Based on the facts of this case, in which the petitioner collaterally attacks only one of his multiple convictions, which are interdependent for sentencing purposes, we find that the district court did not err in asserting jurisdiction to recalculate the aggregate sentence.
Davis argues that the court's resentencing jurisdiction does not apply to the unchallenged but related drug counts, as those counts were not before the district court under the Section(s) 2255 motion. Davis further notes that while a district court may resentence on all counts when one count is challenged on direct appeal, the district court does not have ...