United States of America, Plaintiff-appellee, v. James Robert Benbrook, Jr., Defendant-appellant, 119 F.3d 338 (5th Cir. 1997)

Plaintiff-Appellant James Robert Benbrook, Jr. appeals his resentencing by the district court following a successful challenge to his 18 U.S.C. § 924(c) conviction. Finding no error, we affirm.

FACTS AND PROCEEDINGS

A jury convicted Benbrook of unlawful possession of phenylacetic acid, in violation of 18 U.S.C. § 841(d) (2), and using a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c).¹  The district court sentenced him to consecutive terms of imprisonment -- forty-six months for the drug conviction and sixty months for the firearm conviction, followed by a three-year period of supervised release, and payment of a mandatory special assessment of $100. We affirmed.² 

After the United States Supreme Court decided Bailey v. United States,³  Benbrook filed a habeas corpus petition, pursuant to 28 U.S.C. § 2255, asserting that the evidence was insufficient to support his "use" conviction under § 924(c). The government conceded that this relief should be granted, but urged the district court to resentence Benbrook on the underlying drug conviction by applying a two-level enhancement to his offense level, pursuant to United States Sentencing Guideline (U.S.S.G.) § 2D1.1(b) (1), for possession of a dangerous weapon. The district court did just that, vacating Benbrook's § 924(c) conviction and resentencing him to fifty-seven months of imprisonment on the drug count, followed by a three-year period of supervised release, and payment of a mandatory special assessment of $50.

Benbrook appealed, asserting that the district court had no jurisdiction to resentence him on the unchallenged, underlying drug conviction. He contends that the resentencing violated the Double Jeopardy Clause.

ANALYSIS

18 U.S.C. § 924(c) and Sentencing Guideline § 2D1.1(b) (1) punish the same conduct -- the use of a firearm during the commission of a drug offense. As indicated by their interdependent sentences, § 924(c)'s firearm offense and the underlying drug offense of § 841(d) (2) are inextricably intertwined: Section 924(c) requires the imposition of a five year sentence to be served consecutively to any other term of imprisonment associated with an underlying drug conviction. In like manner, § 2D1.1(b) (1) of the Guidelines requires a two-level increase to a defendant's base offense level for the possession of a dangerous weapon, including a firearm, during the commission of a drug offense such as that proscribed by § 841(d) (2).

When a defendant is sentenced under § 924(c), however, the sentencing guidelines expressly prohibit application of the § 2D1.1(b) (1) two-level increase, as the level enhancement under those circumstances would result in an impermissible double counting of the firearm offense -- once under § 924(c) and again under § 2D1.1(b) (1).⁴  Consequently, at the time of the original sentencing under § 924(c), the two-level enhancement of § 2D1.1(b) (1) is not available.

Benbrook argues that the district court had no jurisdiction to resentence him on his unchallenged, underlying drug conviction or to apply the two-level enhancement. Thus Benbrook would handcuff the district court by restricting resentencing to that complained of in his petition and prohibiting reconsideration of the entire sentence. We disagree.

We have recently held that § 2255 vests the district court with the power to resentence a defendant who successfully challenges his § 924(c) conviction only and that the district court may consider imposition of the two-level enhancement of § 2D1.1(b) (1) in resentencing that defendant.⁵  We therefore hold that the district court lawfully applied the two-level enhancement in resentencing Benbrook on his unchallenged, underlying drug conviction. Benbrook's new sentence turns in part on the now vacated § 924(c) conviction, which freed the district court's hands, where they were tied before, to increase the offense level of Benbrook's drug conviction for the firearm offense pursuant to § 2D1.1(b) (1).

Neither does the district court's resentencing violate the Double Jeopardy Clause.⁶  That constitutional protection prohibits resentencing only when a defendant has developed a legitimate expectation of finality in his original sentence.⁷  When a defendant challenges one of interdependent convictions, however, he has no expectation of finality in his original sentence, having put at issue the validity of the entire sentence.⁸  In seeking relief from his § 924(c) conviction and the consecutive sixty months portion of his sentence attributable to that conviction, Benbrook opened the door for the district court to revisit the entire sentence -- not just to vacate that conviction but also to resentence him on the unchallenged, underlying drug conviction.

Benbrook insists that he had a legitimate expectation of finality in his drug sentence, as he had completed the term of imprisonment originally allocated to that offense. Benbrook's argument, however, rests on the erroneous assumption that he received separate and distinct sentences for his drug and firearm convictions. To the contrary, he received one aggregate sentence for those interdependent offenses. When Benbrook attacked part of that aggregate sentence -- his § 924(c) conviction, he necessarily attacked the whole. Thus, he could have had no legitimate expectation of finality in any portion of the original aggregate sentence.⁹  Moreover, assuming that Benbrook has served the term of imprisonment originally allocated to his drug conviction, he has not completed, much less begun, the mandatory three-year period of supervised release.¹⁰ 

CONCLUSION

For the foregoing reasons, we hold that the district court did not err generally in resentencing Benbrook on his unchallenged, underlying drug conviction, nor specifically in applying the two-level enhancement of § 2D1.1(b) (1). It follows that the district court's resentencing of Benbrook should be and therefore is

AFFIRMED.