U.S. v. Gordils

• Decision Date: 08 July 1997
• Docket Number: D,Nos. 1585,1586,s. 1585,1586
• Parties: UNITED STATES of America, Appellee, v. Jose Ramon GORDILS and Nicholas Mpounas, Defendants-Appellants, Gregory Melendez and Francisco Bastar, Defendants. ockets 96-1691,96-1701.
• Court: U.S. Court of Appeals — Second Circuit

Page 99

117 F.3d 99

UNITED STATES of America, Appellee, v. Jose Ramon GORDILS and Nicholas Mpounas, Defendants-Appellants Gregory Melendez and Francisco Bastar, Defendants.

Nos. 1585,1586, Dockets 96-1691,96-1701.

United States Court of Appeals Second Circuit.

Argued May 8, 1997.

Decided July 8, 1997.

Edward S. Zas, New York City, The Legal Aid Society, Federal Defender Division, Appeals Bureau for Defendant-Appellant Gordils; Charles T. Theofan, Mineola, NY, for defendant-appellant Mpounas.

Craig A. Stewart, New York City, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, of Counsel), for appellee United States of America.

Before: FEINBERG, CARDAMONE and LEVAL, Circuit Judges.

FEINBERG, Circuit Judge:

This appeal raises an important issue in administering the criminal law: whether a district court has jurisdiction to resentence a defendant on an underlying, unchallenged drug trafficking conviction where, pursuant to Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the defendant has successfully challenged a related firearm conviction in a 28 U.S.C. § 2255 petition. Defendants Jose Ramon Gordils and Nicholas Mpounas appeal from a judgment entered in October 1996 in the United States District Court for the Southern District of New York, David N. Edelstein, J. The judge found that he did have such jurisdiction and resentenced defendants. Gordils v. United States, 943 F.Supp. 346 (S.D.N.Y.1996). For reasons set forth below, we affirm.

I. Background

Gordils and Mpounas were both convicted after a jury trial of multiple drug trafficking offenses and of using and carrying a firearm during and in relation to their drug trafficking crimes, in violation of 18 U.S.C. § 924(c). ¹ In April 1990, Judge Edelstein sentenced Gordils principally to three concurrent 151-month terms on his narcotics crimes. The judge sentenced Mpounas principally to four concurrent 188-month terms on his drug counts. Each sentence was at the top of the respective applicable guidelines range. In addition, each defendant was sentenced under § 924(c) to a mandatory consecutive five-year term of imprisonment for the firearm violation.

Because of the § 924(c) convictions, Judge Edelstein was precluded from enhancing defendants' base offense levels on their drug crimes by two levels for possession of a firearm, pursuant to United States Sentencing Commission Guidelines Manual § 2D1.1(b)(1). ² See U.S.S.G. § 2K2.4, Comment (n.2 & Backg'd) (to avoid double counting, "[w]here a sentence under [§ 924(c) ] is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of an explosive or firearm ... is not to be applied in respect to the guideline for the underlying offense."); United States v. Howard, 998 F.2d 42, 48 (2d Cir.1993).

Defendants appealed their convictions, and this court affirmed in United States v. Gordils, 982 F.2d 64 (2d Cir.1992), cert. denied, Bastar v. United States, 507 U.S. 1054, 113 S.Ct. 1953, 123 L.Ed.2d 657 (1993).

After the appeals had been decided and defendants had started serving their sentences, the United States Supreme Court decided Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In Bailey, the Court limited the scope of the term "use" in § 924(c), which penalizes the "use" of a firearm in a narcotics offense. The Court held that § 924(c) "requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." --- U.S. at ----, 116 S.Ct. at 505. Bailey in effect overruled this circuit's holdings that active use was not required to sustain a conviction under § 924(c). See, e.g., United States v. Fermin, 32 F.3d 674, 678 (2d Cir.1994), cert. denied, 513 U.S. 1170, 115 S.Ct. 1145, 130 L.Ed.2d 1104 (1995).

Thereafter, each defendant filed a petition under 28 U.S.C. § 2255 to vacate his § 924(c) conviction and sentence in light of Bailey. The petitions did not attack any of the underlying drug trafficking violations. The government did not oppose defendants' § 2255 petitions. Instead, it moved for resentencing, asking the court to consider whether to enhance each defendant's offense level under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with the underlying drug crimes.

Judge Edelstein thereafter vacated Gordils's and Mpounas's § 924(c) convictions pursuant to Bailey. The judge also determined that defendants could be resentenced on the underlying narcotics counts and that he would consider whether to enhance defendants' offense levels under § 2D1.1(b)(1). In October 1996, the judge determined that Gordils and Mpounas were subject to the two-level enhancement on these counts. 943 F.Supp. at 354. Judge Edelstein resentenced Gordils to three concurrent sentences of 188 months imprisonment, less time already served. This was 23 months less than Gordils's original total sentence, but 37 months more than his original sentence on the narcotics counts. The judge sentenced Mpounas to four concurrent sentences of 235 months imprisonment, less time already served--13 months less than his original total sentence, but 47 months longer than his original sentence on the narcotics counts. Id. at 355-56. Again, each sentence fell at the top of the new applicable guidelines range.

These appeals followed.

II. Discussion

Defendants argue to us only that the district court lacked jurisdiction to increase their sentences on narcotics convictions "that became final long ago" and that they have not challenged. They rely on 18 U.S.C. § 3582(c), which provides that a "court may not modify a term of imprisonment once it has been imposed except that (1) in any case ... (B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure...." All parties agree that Rule 35 does not apply here. Thus, the question is whether modification of defendants' original narcotics sentences is "expressly permitted" by any other statute. The issue thus raised is purely one of law and we review the conclusions of the district court de novo.

The government contends that 28 U.S.C. § 2255, the federal statute under which defendants sought post-conviction relief, itself grants such permission. That statute provides that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, 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, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable 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 (emphasis added).

Defendants reply that when a prisoner petitions to "vacate, set aside or correct the sentence," only the sentence under attack in the § 2255 petition is brought before the court for consideration, citing United States v. Rosen, 764 F.2d 763, 766 (11th Cir.1985). Defendants add that the plain language of the statute allows only a "prisoner in custody" to petition a district court for modification of a sentence, and that defendants did not challenge their convictions on the narcotics counts. Certainly, defendants argue, the government could not bring the defendants' remaining counts before the district court because the government is not a "prisoner in custody" eligible to bring a § 2255 petition. Warner v. United States, 926 F.Supp. 1387, 1398 (E.D.Ark.1996) ("no matter how hard one tries, one simply cannot shoehorn the United States into the class of persons who are entitled to seek relief under [§ 2255]"). Therefore, defendants contend, the district judge did not have jurisdiction to reopen their sentences on the unchallenged drug trafficking counts.

In the wake of Bailey, the jurisdictional issue thus posed has not surprisingly been considered by a number of other circuits. All of them have concluded that a district court does have jurisdiction under § 2255 to resentence a defendant on a related, unchallenged drug conviction when the defendant has successfully challenged his § 924(c) conviction pursuant to Bailey. United States v. Isidro Rodriguez, 112 F.3d 26 (1st Cir.1997); United States v. Davis, 112 F.3d 118 (3d Cir.1997); United States v. Hillary, 106 F.3d 1170 (4th Cir.1997); United States v. Gustavo Perdomo Rodriguez, 114 F.3d 46 (5th Cir.1997); United States v. Binford, 108 F.3d 723 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2530, 138 L.Ed.2d 1029 (1997); Gardiner v. United States, 114 F.3d 734 (8th Cir.1997); United States v. Harrison, 113 F.3d 135 (8th Cir.1997); United States v. Handa, 110 F.3d 42 (9th Cir.1997); United States v. Mixon, 115 F.3d 900 (11th Cir.1997); United States v. Morris, 116 F.3d 501 (D.C.Cir.1997).

We agree with our sister circuits and, in view of their virtual unanimity in result and reasoning, ³ will discuss defendants' arguments only briefly. With regard to the text of § 2255, those courts have held in these circumstances that the district court's power extends not just to the conviction attacked by a defendant...