Before: Becker, Roth, Circuit Judges, and Diamond, District Judge.*fn*
The opinion of the court was delivered by: BECKER,*fn** Chief Circuit Judge.
On Appeal From the United States District Court For the Middle District of Pennsylvania
(D.C. Crim. No. 92-00200-04)
Michael Murray appeals for the second time from a judgment in a criminal case.*fn1 In his first appeal, a panel of this court vacated one count of his conviction, affirmed two others, and remanded for resentencing on the affirmed counts. Murray now challenges the sentences imposed on remand. His appeal raises interesting and difficult questions concerning the contours of the so-called Sentencing Package Doctrine (the "doctrine") under the regime of the Sentencing Guidelines. Rejecting Murray's several contentions, we hold that the district court had the authority to resentence Murray on the affirmed counts; that there is no constitutional barrier to the district court imposing life sentences on those counts; that the district court did not abuse its discretion by departing from the applicable guideline range; and that the extent of the departure was reasonable. We therefore affirm the judgment.
Murray was convicted following a jury trial of the intentional killing of Juan Carlos Bacallo in furtherance of a Continuing Criminal Enterprise ("CCE"), in violation of 21 U.S.C. § 848(e)(1)(A); conspiracy to distribute in excess of five (5) kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1); and distribution of and possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On January 19, 1996, Murray was sentenced to a term of life imprisonment for the CCE-related murder and to two concurrent ten-year sentences on the drug counts.*fn2 Murray timely appealed his convictions, and, in United States v. Murray, 103 F.2d 310 (3d Cir. 1997) (Murray I), a panel of this court reversed Murray's conviction on the murder charge on the ground of trial error.*fn3 The panel was careful to indicate at various points that the errors did not require reversal of Murray's drug convictions. At the conclusion of the opinion, the panel stated:
For the foregoing reasons, we reverse the judgment of conviction and sentence on the murder charge and remand for a new trial. We affirm the judgment of conviction as to the drug charges and remand for resentencing, if appropriate, on those counts.
On remand, the government took the position that the district court could permissibly vacate the concurrent ten- year terms imposed on the two drug counts and resentence Murray to life imprisonment -- thus obviating the need (in practical terms) for a retrial on the murder charge. Murray objected to this procedure, but the district court proceeded with the resentencing. A revised presentence report ordered by the district court advised that the guideline level for Murray's drug offenses was 34, and that the murder of Bacallo was relevant conduct which could justify an upward departure pursuant to U.S.S.G. § 5K2.1 (Death); and § 5K2.8 (Extreme Conduct). On April 10, 1997, the district court departed upwards and resentenced Murray to two concurrent terms of life imprisonment on the drug counts and imposed a $10,000 fine.
At the resentencing, the district court gave the following reasons for its departure:
The Court believes that there is clear and convincing evidence that the defendant committed murder. The killing of Juan Carlos Bacallo is relevant conduct associated with the defendant's offense of conviction and is an integral, ...