77 F.3d 510 (D.C. Cir. 1996), 93-3064, United States v. Fennell

Docket Nº:93-3064.
Citation:77 F.3d 510
Party Name:UNITED STATES of America, Appellee, v. Sean M. FENNELL, Appellant.
Case Date:March 04, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 510

77 F.3d 510 (D.C. Cir. 1996)

UNITED STATES of America, Appellee,


Sean M. FENNELL, Appellant.

No. 93-3064.

United States Court of Appeals, District of Columbia Circuit

March 4, 1996

Before: WALD, SILBERMAN and TATEL, Circuit Judges.



In an opinion filed May 5, 1995, we affirmed Fennell's conviction under 18 U.S.C. § 924(c). After he petitioned for rehearing, we deferred our decision pending the Supreme Court's disposition of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In light of Bailey, we granted the petition and requested further briefing.

The Government agrees that Bailey requires reversal of Fennell's § 924(c) conviction, but requests that we remand for resentencing on his drug conviction, arguing that without the § 924(c) conviction, he should receive a 2-level upward adjustment under U.S.S.G. § 2D1.1(b)(1). Fennell argues that the Government has waived its right to resentencing by not filing a "conditional cross-appeal"--that is, a timely appeal asserting that if the court were to reverse the § 924(c) conviction, the court should remand for resentencing on the drug count. We disagree. Requiring the Government to file a preemptive cross-appeal in this sort of case "would burden appellees (and courts) with no appreciable benefit to appellate practice." United...

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