U.S. v. Barron

• Citation: 127 F.3d 890
• Decision Date: 22 October 1997
• Docket Number: No. 96-36058,96-36058
• Parties: 97 Cal. Daily Op. Serv. 8142, 98 Cal. Daily Op. Serv. 1616, 97 Daily Journal D.A.R. 13,156 UNITED STATES of America, Plaintiff-Appellee, v. William Scott BARRON, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 890

127 F.3d 890

97 Cal. Daily Op. Serv. 8142, 98 Cal. Daily

Op. Serv. 1616,

97 Daily Journal D.A.R. 13,156

UNITED STATES of America, Plaintiff-Appellee, v. William Scott BARRON, Jr., Defendant-Appellant.

No. 96-36058.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 17, 1997.

Decided Oct. 22, 1997.

Michael S. Taggart, Assistant Federal Defender, Anchorage, AK, for defendant-appellant.

Mark Rosenbaum, Assistant United States Attorney, Anchorage, AK; and Thomas M. Gannon, United States Department of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, District Judge, Presiding. D.C. No. CV-96-00096-JKS

Before: WALLACE, JOHN T. NOONAN Jr. and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

OVERVIEW

Pursuant to a plea agreement, William Scott Barron, Jr. pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) (Count 1); possessing cocaine with the intent to distribute it (21 U.S.C. § 841(a)(1)) (Count 2); and using a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)) (Count 3). He was sentenced to concurrent terms of 120 months' imprisonment on Counts 1 and 2, and a consecutive term of 60 months' imprisonment on Count 3, to be followed by an eight-year period of supervised release.

After Barron began serving his sentence, the Supreme Court issued its opinion in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Barron then sought post-conviction relief under 28 U.S.C. § 2255 on the ground that his guilty plea to the section 924(c) offense rested on facts which, according to Bailey, do not constitute an offense under that section. The district court agreed that, under Bailey, the factual basis for Barron's guilty plea was inadequate. It did not, however, simply vacate Barron's section 924(c)(1) conviction. Instead, it entered an order giving Barron the choice to withdraw his section 2255 motion, or let the motion stand. If Barron chose to let his motion stand, the court ruled that it would not only vacate his section 924(c)(1) conviction, it would also rescind his entire plea agreement, including the convictions on the two unchallenged counts, reinstate all three counts in the original indictment, and return the parties to the status quo ante--that is, the positions they were in immediately before--they entered their plea agreement. The result would be that all three counts against Barron would be reinstated, there would be no guilty plea in place as to any of them, and the government would be free to pursue any additional charges it wished, including charges based on facts underlying the indictment.

Rather than make this choice, Barron brought this interlocutory appeal arguing that the district court erred in conditioning the grant of his section 2255 motion on the rescission of the entire plea agreement.

We granted permission under 28 U.S.C. § 1292(b) for Barron to pursue this interlocutory appeal. We now hold that the district court properly exercised its discretion under section 2255 to rescind the entire plea agreement.

FACTS AND PROCEEDINGS

Pursuant to the parties' 1991 plea agreement, the government agreed, in exchange for Barron's guilty pleas to the three counts in the indictment, that it would refrain from bringing any other charges arising from the facts underlying the indictment, refrain from seeking an enhanced penalty under 18 U.S.C. § 924(e), and recommend a two-point reduction in sentencing for acceptance of responsibility. Barron entered the guilty pleas and he was sentenced consistent with the terms of the plea agreement.

While Barron was serving his prison term, the Supreme Court held, in Bailey v. United States, that a conviction for "use" of a firearm during or in relation to a drug trafficking offense under 18 U.S.C. § 924(c)(1) requires evidence that the defendant "actively employed" the firearm in relation to the predicate offense. See Bailey, 516 U.S. 137, ----, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995). In light of Bailey, Barron filed a section 2255 petition in the district court seeking to vacate his section 924(c)(1) conviction and his 60-month consecutive sentence Both the government and the district court agreed with Barron that the facts upon which his plea rested do not constitute an offense under section 924(c). They disagreed with Barron, however, as to how Barron's relief under section 2255 should be shaped.

                on the ground that the facts upon which his guilty plea rested do not constitute an offense under section 924(c)(1). 1  Barron did not challenge his convictions or sentence on the other two counts
                

Barron argued that his section 924(c)(1) conviction and corresponding 60-month consecutive sentence should be vacated, 60 months should be subtracted from his overall 180-month period of confinement, and his remaining two convictions and concurrent sentences should be left intact. He contended the government should be precluded from resentencing him on the two unchallenged counts of conviction, from reprosecuting him on the section 924(c) count, and from charging him with any other crimes for conduct underlying the indictment.

The government, on the other hand, argued that because each of Barron's convictions was entered pursuant to one overall plea agreement, a challenge to one count of conviction was a challenge to the entire agreement. It argued that if the district court vacated Barron's 924(c)(1) conviction and sentence, it should rescind the entire plea agreement, including his convictions on the other two counts, and return the parties to the positions they were in before they entered into the agreement. The original indictment would then come back to life, with all of its original charges and with no limitation on what else the government might charge, and the parties could either renegotiate a new plea agreement or proceed to trial.

The district court agreed with the government, United States v. Barron, 940 F.Supp. 1489, 1493-94 (D.Alaska 1996), and this appeal followed.

DISCUSSION

I. Standards of Review

We review de novo a district court's grant or denial of a section 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir.1995). We also review de novo a district court's assumption of jurisdiction over an offense, United States v. Walczak, 783 F.2d 852, 854 (9th Cir.1986), and whether a defendant's double jeopardy rights have been violated. United States v. Scarano, 76 F.3d 1471, 1474 (9th Cir.1996).

II. Analysis

We have previously held that a section 2255 petitioner is entitled to have his section 924(c)(1) conviction and sentence vacated where the evidence produced at his jury trial failed to establish that he "used" a firearm as we now understand that term in light of Bailey. See United States v. Garcia, 77 F.3d 274, 276-77 (9th Cir.1996); United States v. Hernandez, 80 F.3d 1253, 1257-58, 1261 (9th Cir.1996). ² In the present case the government concedes that, under Bailey, Barron is entitled to have his conviction by guilty plea set aside.

The more difficult question relates to the remedy. How should relief be shaped when the vacated section 924(c) conviction is one of three convictions obtained by guilty pleas entered pursuant to a plea agreement?

As the district court observed, given the defective section 924(c) conviction, there are three possibilities. (1) The district court could treat the section 924 conviction and sentence in isolation, vacate them, and leave the remainder of the convictions, sentence and plea bargain intact. This is Barron's preference. (2) It could vacate the section

924 conviction, leave the other convictions intact, and resentence Barron de novo on all remaining convictions. This has been the most common response in the case law and is perhaps most appropriate where no counts were dismissed or uncharged pursuant to the plea agreement. See cases cited infra. (3) It could vacate the entire plea agreement, including the guilty pleas on all counts, and restore the parties to the status quo ante the agreement. This might be appropriate where charges in the indictment were dismissed pursuant to the plea agreement or where the plea negotiations included potential charges and enhancements not included in the indictment. The district court held it would apply this remedy if Barron pursued his section 2255 petition. See Barron, 940 F.Supp. at 1491 n. 3.

A. The "Unchallenged" Convictions

Barron contends the district court lacks jurisdiction to vacate his two "unchallenged" convictions and corresponding sentence by rescinding his entire plea agreement because he challenged only his section 924(c) conviction and the corresponding 60-month portion of his sentence. He contends 28 U.S.C. § 2255 does not confer authority on district courts to set aside unchallenged counts and unchallenged portions of the sentence.

To determine whether section 2255 confers jurisdiction to vacate unchallenged convictions and sentences, we turn first to the statute itself. Section 2255 provides:

A prisoner in custody under sentence of a court ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, ... the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

28 U.S.C. § 2255 (1994) (emphasis added).

Barron contends the language granting district courts the power to "vacate and set the judgment aside," to "resentence" the prisoner, and to "correct the sentence as may appear appropriate" limits the court's remedial jurisdiction to the challenged count of conviction and that portion of the...