U.S. v. Oliver

• Decision Date: 30 September 1996
• Docket Number: Cr. No. CR-91-73-N.
• Citation: 941 F.Supp. 1109
• Court: U.S. District Court — Middle District of Alabama
• Parties: UNITED STATES of America v. Edna P. OLIVER & Johnnie D. Oliver.

941 F.Supp. 1109

UNITED STATES of America v. Edna P. OLIVER & Johnnie D. Oliver.

Cr. No. CR-91-73-N.

United States District Court, M.D. Alabama, Northern Division.

September 30, 1996.

U.S. Attorney, Montgomery, for plaintiff.

Federal Defenders' Office, Montgomery, AL, for defendants.

MEMORANDUM OPINION & ORDER

ALBRITTON, District Judge.

1. INTRODUCTION

This cause is now before the court on Defendant Edna P. Oliver's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, filed herein on March 15, 1996; the Government's response to Edna Oliver's motion, filed herein on July 31, 1996; the Government's motion for resentencing Defendant Johnnie D. Oliver, filed herein on August 1, 1996; and Defendant Johnnie D. Oliver's response to the Government's motion, filed herein on August 21, 1996.

On June 26, 1991, Defendant Edna P. Oliver was found guilty of conspiracy to possess with intent to distribute cocaine base (21 U.S.C. § 846), possession with intent to distribute cocaine base (21 U.S.C. § 841(a)(1)), possession of a firearm by a convicted felon (18 U.S.C. § 924(g)(1)), and using and carrying firearms during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)). On August 2, 1991, the court sentenced Edna Oliver to 196 months imprisonment. The term consisted of 136 months on the cocaine base convictions and 120 months on the possession of a firearm by a convicted felon conviction, to run concurrently with each other. The court also sentenced Edna Oliver to a consecutive 60 months term in prison on the § 924(c)(1) conviction, and an 8 year term of supervised release upon release from imprisonment.

On March 15, 1996, Defendant Edna Oliver filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. She argues that her conviction under 18 U.S.C. § 924(c)(1) for using and carrying firearms during and in relation to a drug trafficking crime should be vacated in light of the United States Supreme Court's recent decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that the "use" prong of § 924(c)(1) requires the "active employment" of a firearm). In its response to Edna Oliver's motion, the Government conceded that her conviction under § 924(c)(1) should be set aside. However, the Government went on to request that the court resentence Edna Oliver on the ground that without the § 924(c)(1) conviction, a sentence enhancement is now appropriate under the United States Sentencing Guidelines.

On June 26, 1991, Defendant Johnnie D. Oliver was found guilty of conspiracy to possess with intent to distribute cocaine base (21 U.S.C. § 846), possession with intent to distribute cocaine base (21 U.S.C. § 841(a)(1)), distribution of cocaine base (21 U.S.C. § 841(a)(1)), and using and carrying firearms during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)). On August 2, 1991, the court sentenced Johnnie Oliver to 157 months imprisonment. The term consisted of 97 months on the cocaine base convictions and 60 months on the § 924(c)(1) conviction, to be served consecutively. The court also sentenced Johnnie Oliver to a 5 year term of supervised release on the cocaine base convictions and a 3-year term of supervised release on the § 924(c)(1) conviction, to be served concurrently.

On May 8, 1996, Defendant Johnnie Oliver filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. He argued that his conviction under 18 U.S.C. § 924(c)(1) for using and carrying firearms during and in relation to a drug trafficking crime should be vacated in light of the Bailey decision. On August 1, 1996, the court adopted the Amended Recommendation of the Magistrate Judge, filed herein on July 15, 1996, and ordered that Johnnie Oliver's § 2255 motion be granted and his § 924(c)(1) conviction be vacated. Later that same day, the government filed a motion for resentencing of Johnnie Oliver on the same ground that it requested the court to resentence Edna Oliver.

For the reasons stated below, this court finds that Defendant Edna Oliver's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is due to be GRANTED; the Government's motion for resentencing Johnnie D. Oliver is due to be GRANTED.

II. DISCUSSION

A. Edna Oliver's § 2255 Motion

As noted in the Introduction, Defendant Edna Oliver was convicted under 18 U.S.C. § 924(c)(1) for using and carrying a firearm during and in relation to a drug trafficking crime. After the Supreme Court issued its decision in Bailey, Edna Oliver filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The Government, in its response to Edna Oliver's § 2255 motion, conceded that the § 924(c)(1) conviction should be set aside. On August 2, 1996, the Magistrate Judge filed her recommendation in this cause.

There being no objections filed to the Amended Recommendation of the Magistrate Judge, filed herein on August 2, 1996, said Recommendation is hereby adopted to the extent that it recommends that Edna Oliver's motion be granted and her § 924(c)(1) conviction be vacated. It is the ORDER, JUDGMENT, and DECREE of the court that the motion to vacate, set aside, or correct sentence filed by Defendant Edna Oliver on March 15, 1996, under the provisions of 28 U.S.C. § 2255 is hereby GRANTED. It is further ORDERED that Edna Oliver's conviction under 18 U.S.C. § 924(c)(1) is hereby VACATED.

B. Government's Request that the Court Resentence Edna Oliver

As noted in the Introduction, the Government, in its response to Defendant Edna Oliver's § 2255 motion, requested that the court resentence Edna Oliver after vacating the § 924(c)(1) conviction. The Government requests that the court apply U.S.S.G. § 2D1.1(b)(1) to Edna Oliver's remaining drug convictions. Section 2D1.1(b)(1) is an enhancement provision which provides that two levels should be added to the base offense level if a dangerous weapon was possessed in connection with the drug offenses. The court was precluded from applying this provision at the original sentencing because a sentence under § 924(c)(1) and an enhancement under § 2D1.1(b)(1) would have been "double counting." See U.S.S.G. § 2K2.4, comment. (n. 2).

The Recommendation of the Magistrate Judge, filed herein on August 2, 1996, agreed with the Government that the court should resentence Edna Oliver and apply the enhancement provision. However, the cases cited by the Magistrate Judge and the Government are authority for a district court to resentence a defendant on remand from the court of appeals after a direct appeal of the defendant's convictions. This case involves a collateral attack of a sentence, rather than a direct appeal. More discussion is needed before the court can agree to resentence Defendant Edna Oliver.

The court is faced with the following issue: When a prisoner collaterally attacks her sentence under 28 U.S.C. § 2255 on fewer than all counts of which she was convicted, and the court vacates the challenged sentence(s), does the court have authority and jurisdiction to resentence the prisoner on any unchallenged counts?

Stated differently, the issue before the court is whether the court can resentence a prisoner on counts of which he was previously convicted and of which the prisoner did not challenge in a § 2255 collateral attack. To properly analyze this issue, it is important to analyze the law from the time at which the issue was first presented to the court of appeals to the present. In 1972, the former Fifth Circuit confronted this issue as one of first impression in the circuit. The former Fifth Circuit considered whether it was proper for a district court, when faced with a § 2255 motion, to reduce the prisoner's sentence on the challenged count and at the same time increase the prisoner's prior, legal sentence on another unchallenged count. Chandler v. United States, 468 F.2d 834 (5th Cir.1972).¹

In Chandler, the § 2255 movant was convicted on count one for willfully subscribing a fraudulent tax return and was sentenced to five years imprisonment. Chandler, 468 F.2d at 834. However, the statutory maximum imprisonment for count one was three years. Id. The movant was also convicted on count two for willfully evading federal income tax and was sentenced to three years imprisonment, to be served concurrently with the count one sentence. Id. The statutory maximum imprisonment for count two was five years.² Id. The movant filed her 28 U.S.C. § 2255 motion because her sentence on count one exceeded the statutory maximum. Id. at 835. The district court reduced movant's sentence on count one from five years to three years, the statutory maximum penalty. Id. The district court then raised movant's sentence on count two from three years to five years, the statutory maximum. Id. The district court's reason for modifying the sentence on the unchallenged count was to conform the entire sentence to the original intentions of the district court. Id.

The movant appealed the district court's decision to raise her sentence on the unchallenged count as violative of double jeopardy. Id. Noting that this issue was one of first impression in the circuit, the former Fifth Circuit held as follows:

To allow the trial court's action in this case to stand would place a rather formidable deterrent in the path of a convicted defendant who desires to apply for post-conviction relief on only one count of a multicount conviction. By subjecting the defendant to the contingency of having a non-challenged sentence escalated to the statutory maximum, we would truly be inviting the defendant to play "Russian Roulette." Admittedly, the government is requesting only that a narrow hole be bored in the double jeopardy clause. We will not, however, allow deeply entrenched constitutional rights to be made subject to claims of "inadvertent error" and we must plug up the hole, however small, left open by the trial court's...