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
 
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Page 510

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

UNITED STATES of America, Appellee,

v.

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.

ORDER

PER CURIAM.

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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