Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Sr., District Judge. (CR-93-148)
Before MURNAGHAN, Circuit Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges.
Affirmed by published opinion. Judge Murnaghan wrote the opinion, in which Senior Judge Butzner and Senior Judge Phillips joined.
A convicted prisoner, Johnny Eugene Smith, challenges the district court's jurisdiction to resentence him on two counts of the indictment after Smith successfully collaterally attacked his 18 U.S.C. Section(s) 924(c) conviction. Smith further argues that, even if the district court had jurisdiction, the district court's resentencing of him violated the Fifth Amendment's Due Process and Double Jeopardy Clauses. For the following reasons, the judgment of the district court is affirmed.
On June 29, 1993, the grand jury returned an indictment against Smith. The indictment charged Smith with conspiracy to possess with intent to distribute and to distribute in excess of 50 grams of "crack" cocaine in violation of 21 U.S.C. Section(s) 846 (Count One), possession with intent to distribute "crack" cocaine in violation of 21 U.S.C. Section(s) 841(a)(1) (Counts Two and Four), and carrying and using a firearm during and in relation to a felony drug offense in violation of 18 U.S.C. Section(s) 924(c) (Count Three).
On August 6, 1993, Smith pled guilty to Counts One, Two, and Three. Thereafter, on October 29, 1993, the district court sentenced Smith to a term of imprisonment of 168 months on Counts One and Two (consolidated) and sixty months on Count Three to run, as required by law, 18 U.S.C. Section(s) 924(c)(1) (1976 & Supp. 1997), consecutively to the sentence imposed on Counts One and Two. The district court also imposed a term of supervised release for a period of five years on Counts One and Two and a period of three years on Count Three, all to run concurrently. Smith was also ordered to pay a $1000 fine and a special assessment of $150. Formal judgment on the sentence was entered on November 9, 1993.
Thereafter, on April 21, 1994, the government filed a "Motion for Correction of Sentence for Changed Circumstances" under Federal Rule of Criminal Procedure 35(b), moving for a reduction of Smith's sentence based on his substantial assistance to the government. In its motion, the government requested that Smith's sentence be reduced to ninety-seven months. The district court granted the motion and reduced Smith's sentence to thirty-seven months on Counts One and Two, but left in place the previously imposed sixty month consecutive sentence on Count Three. By fashioning the sentence in this manner the requested ninety-seven months was reached. The amount of the intended reduction for substantial assistance in Smith's combined sentence (from 228 months (168 months on Counts One and Two plus 60 months on Count Three) to ninety-seven months) was 57.5%. *fn1
Subsequently, as Smith was serving the reduced sentence imposed by the district court, the Supreme Court issued its decision in Bailey v. United States, 516 U.S. ___, 116 S.Ct. 501 (1995). In response to the Bailey decision, Smith filed a pro se motion pursuant to 28 U.S.C. Section(s) 2255 challenging his Section(s) 924(c) (Count Three) conviction. Smith also attacked the $1000 fine imposed upon him arguing that the district court incorrectly concluded that Smith had the ability to pay such a fine. In its response to the motion, the government conceded that Smith's Section(s) 924(c) conviction should be vacated. The government contended, however, that Smith should be resentenced on Counts One and Two in order to effectuate the district court's original sentencing intent and to give the government an opportunity to request a 2 level enhancement pursuant to U.S.S.G. Section(s) 2D1.1((b)(1). Upon consideration of the motion, *fn2 the district court granted Smith's motion and granted the government's request for resentencing on Counts One and Two. On May 22, 1996, the district court issued an order appointing a federal public defender to represent Smith at the resentencing.
The district court scheduled the resentencing hearing for June 6, 1996. At the time of the resentencing, the Bureau of Prisons' (BOP) records and calculations indicated that on March 7, 1996 Smith had finished serving the 37 months of imprisonment imposed on Counts One and Two. *fn3 At the resentencing, the district court stated that pursuant to the government's Federal Rule of Criminal Procedure 35(b) motion, based on Smith's substantial assistance, it was the court's intention to reduce Smith's overall sentence to ninety-seven months. The district court explained that the court could not remember why the court chose to create a ninety-seven month sentence in the manner in which it did--thirty-seven months on Counts One and Two and sixty months on Count Three. Nonetheless, at the conclusion of the hearing, the district court granted a two level enhancement pursuant to U.S.S.G. Section(s) 2D1.1(b)(1) exposing Smith to a term of imprisonment range of 210 to 262 months under Counts One and Two. The government then requested that Smith be sentenced to eighty-nine months for the Count One and Count Two convictions, which again represented a 57.5% reduction from Smith's exposure of 210 to 262 months. The district court agreed and sentenced Smith to eighty-nine months on Counts One and Two, a five year term of supervised release, and a special assessment of $100. Formal judgment was entered on June 14, 1996. Smith filed a timely notice of appeal on June 14, 1996. The district court released Smith on bond pending the instant appeal.
Smith raises three primary challenges to the district court's imposition of eighty-nine months of imprisonment on Counts One and Two of the indictment. First, he argues that the district court did not have jurisdiction to impose the eighty-nine month term. Second, assuming the district court had jurisdiction, the district court's imposition of the eighty-nine month term violated the Fifth Amendment's Double Jeopardy Clause. Third, assuming jurisdiction, the district court's imposition of the eighty-nine month term violated Smith's due process rights under ...