Appeals from the United States District Court for the District of Columbia (No. 88cr00404-01) (No. 91cr00008-01)
Before: Edwards, Chief Judge, Silberman and Williams, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with No. 96-3071
Opinion for the Court filed by Circuit Judge Williams.
Before the decision of the Supreme Court in Bailey v. United States, 116 S. Ct. 501 (1995), a person guilty of certain offenses (mainly drug offenses) could also be found guilty of "us[ing]" a firearm in violation of 18 U.S.C. Section(s) 924(c) if the weapon were sufficiently accessible to the defendant to be available for active use during commission of the predicate crime. See id. at 505, citing United States v. Bailey, 36 F.3d 106, 115 (D.C. Cir. 1994) (en banc). The Section(s) 924(c) violation carried a mandatory five-year term, which Congress explicitly directed should not run concurrently with any other sentence. 18 U.S.C. Section(s) 924(c). A common collateral effect of the Section(s) 924(c) conviction, however, was to relieve the defendant of an otherwise mandatory two-level enhancement under Section(s) 2D1.1(b)(1) of the Sentencing Guidelines, for possession of a gun during a drug trafficking crime. "To avoid double counting, when a sentence under [Section(s) 924(c)] is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for firearm discharge, use, or possession is not applied in respect to such underlying offense." U.S. Sentencing Guidelines Manual ("U.S.S.G") Section(s) 2K2.4.
Bailey changed the rules of the game, making clear that "use" for purposes of Section(s) 924(c) required the defendant's "active employment" of the gun. 116 S. Ct. at 505. The present case addresses-not for the first time-the question whether a court that vacates a five-year Section(s) 924(c) sentence as a result of Bailey can proceed to apply the Guidelines' two-level enhancement. In United States v. Rhodes, 106 F.3d 429, 432-33 (D.C. Cir. 1997), we held that 28 U.S.C. Section(s) 2106 authorizes a district court to apply the enhancement to a defendant who successfully challenges a Section(s) 924(c) conviction on direct appeal. Here we consider whether it may do so when the Section(s) 924(c) conviction is vacated as a result of a collateral challenge under 28 U.S.C. Section(s) 2255. Although the operative statutory language is slightly different, the reasoning of Rhodes calls for the same result here.
The two appellants' sentencing histories are textbook instances of post-Bailey substitutions of a two-level enhancement for a Section(s) 924(c) conviction-in both cases reducing the aggregate sentence. Robert Staton, on his conviction for drug-trafficking in violation of 21 U.S.C. Section(s) 841(a) & (b)(1)(A)(iii), for a Section(s) 924(c) violation and for a third count not at issue here, received a 211-month term. It consisted of a 151-month sentence for the Section(s) 841 violation (at the bottom of the applicable guideline range based on an offense level of 32 *fn1, plus 60 months under Section(s) 924(c). When Staton challenged his Section(s) 924(c) conviction under Section(s) 2255, the government conceded that it was not sustainable under Bailey. Vacating the Section(s) 924(c) conviction and sentence, the court added the two-level enhancement and sentenced him to 188 months, at the bottom of the Guidelines range for the new offense level of 34 and providing a net reduction of 23 months.
Robert Morris originally received a 130-month sentence, consisting of 70 months for his violation of Section(s) 841(a) & (b)(1)(B)(iii) (the bottom of the range for offense level 26), plus 60 months under Section(s) 924(c). After vacating the Section(s) 924(c) sentence on Morris's motion, the court resentenced him to 87 months under the drug charge, at the bottom of the range for the new offense level of 28 and yielding a net diminution of 43 months. (The change was more valuable to Morris because a two-level increase at a low offense level adds fewer months than at a higher level. An increase of six levels roughly doubles the sentence, regardless of the starting level. See U.S.S.G. Ch. 1, Pt. A, Section(s) 4(h).)
Appellants first question whether the trial court had authority to increase their Section(s) 841 sentences. Under 18 U.S.C. Section(s) 3582(c) a court may modify a sentence only in three circumstances: (1) on motion of the Bureau of Prisons, (2) "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure," and (3) to reflect a post-sentence reduction in the applicable sentencing guidelines. No one contends that either of the first or third possibilities, or Rule 35, is applicable. The only statute offered as a possible source of authority is the federal habeas statute:
A prisoner ... claiming the right to be released upon the ground that the sentence ... is ... subject to collateral attack, may move the court ... to ...