US v. Aespuro

• Decision Date: 05 July 1996
• Docket Number: Civ. No. S-96-0373 WBS/JFM,S-96-0013 WBS/JFM. No. Cr. S-89-0476 WBS.
• Citation: 938 F. Supp. 623
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff and Respondent, v. Primantivo AESPURO, Jose Luis Beltran Defendants and Petitioners.

938 F. Supp. 623

UNITED STATES of America, Plaintiff and Respondent, v. Primantivo AESPURO, Jose Luis Beltran Defendants and Petitioners.

Civ. Nos. S-96-0373 WBS/JFM, S-96-0013 WBS/JFM. No. Cr. S-89-0476 WBS.

United States District Court, E.D. California.

July 5, 1996.

Candace Anne Fry, Law Offices of Candace Anne Fry, Sacramento, CA, for Jose L. Beltran.

Mary French, Asst. Federal Defender, Sacramento, CA, for Primantivo Aespuro.

Miguel Rodriguez, U.S. Atty., Sacramento, CA, for U.S.

MEMORANDUM AND ORDER

SHUBB, Chief Judge.

Defendants move to bar the court from resentencing them on the valid counts of their convictions after the court vacated the invalid counts pursuant to 28 U.S.C. § 2255. After hearing, the court concludes it must resentence on the valid counts to correct the sentence.

I. BACKGROUND

Defendants dealt heroin from a house approximately 100 yards from an elementary school. When the police raided the place, they found inside heroin, over $120,000 in cash, an assault weapon and a revolver.

Subsequently, in 1990, a jury convicted defendants on three counts: (1) conspiring to distribute and possess heroin (21 U.S.C. §§ 846 and 841(a)(1)), (2) possession with intent to distribute heroin within 1,000 feet of a public elementary school (21 U.S.C. § 841(a)(1)), and (3) use of a firearm in a drug offense (18 U.S.C. § 924(c)(1)). At their sentencing hearings, defendant Beltran received ninety-seven months on the first two counts (hereinafter the "valid counts") and defendant Aespero received 109 months on the valid counts.¹ Both defendants received an additional sixty month consecutive sentence on their respective third counts (hereinafter the "invalid counts").

Over five years later, the Supreme Court unanimously decided Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey establishes that to sustain a conviction for use of a firearm in a drug offense under Section 924(c), the government must present evidence that the defendant actively employed the firearm; placement for later active use does not constitute "use." Id. at ___ _ ___, 116 S.Ct. at 508-09.

Shortly after the Court decided Bailey, defendants moved under section 2255 to vacate and set aside their convictions and sentences under the invalid counts. They pointed out that at their trial the government did not show they actively employed either the assault weapon or the firearm. In response, the government stipulated to section 2255 relief. On April 8, 1996, this court granted defendants' motion and vacated the invalid counts of their convictions. The court also referred the matter to the Probation Office for recalculation of sentence based solely on the valid counts. Defendants remain in custody on the sentences under the valid counts.

II. DISCUSSION

While the government concedes the invalidity of defendants' convictions and sentences on the invalid counts, it nevertheless urges the court to compute new sentences for the valid counts. With the invalid counts now vacated, the government argues, defendants should each receive a U.S.S.G. § 2D1.1(b)(1) increase for possessing a dangerous weapon (a specific offense characteristic omitted from the prior sentence calculations because it was redundant of the invalid counts). See U.S.S.G. §§ 2D1.1(b)(1) and 2K2.4 (Background Note). The Probation Office's new presentence report recommends defendants receive such increases.

Defendants argue the court lacks jurisdiction to resentence on the valid counts. Defendants argue further that even if the court had such jurisdiction, increasing defendants' sentences on the valid counts constitutes double jeopardy. They also contend the government has acted vindictively in seeking resentencing. Finally, defendant Beltran asks the court to correct a perceived error in the Bureau of Prison's calculation of his credit for time-served.

A. Jurisdiction

Jurisdiction exists to correct defendants' sentences under the valid counts to reflect a two-level increase for possessing a firearm. A district court may modify a defendant's sentence when Congress has expressly granted the court jurisdiction to do so. United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir.1994) ("The authority to change a sentence must derive from some federal statutory authority."), overruled on other grounds by, 115 S.Ct. 2199 (1995). The statute under which defendants seek relief, 28 U.S.C. § 2255, provides the necessary authority. It authorizes motions to "vacate, set aside or correct the sentence." In bringing these section 2255 motions, defendants have conferred the jurisdiction necessary to modify their sentences.

The court may impose a new sentence on the valid counts even though defendants' motions carefully avoid attacking these counts. The Sentencing Guidelines mandate that the court impose a single sentence. Mixon v. United States, 926 F.Supp. 178, 181-82 (S.D.Ala.1996); United States v. Santopietro, 996 F.2d 17, 20 (2nd Cir.1993) (where multiple counts, the Sentencing Guidelines require a combined sentence equal to the total punishment), cert. denied, 510 U.S. 1092, 114 S.Ct. 921, 127 L.Ed.2d 215 (1994). Striping away the forty month sentences on the invalid counts leaves an incorrect sentence on the valid counts. As Judge Howard recently explained, the sentences on the Invalid Counts (§ 924(c)) are inextricably linked to the section 2D1.1(b)(1) increase:

The relationship between § 924(c) and § 2D1.1(b)(1) is an "either/or" relationship at sentencing. If a defendant is convicted of "using" or carrying a firearm in furtherance of drug crime he must receive a five year consecutive sentence, but he cannot also have his base offense level enhanced pursuant to § 2D1.1(b)(1) because such enhancement would violate the Double Jeopardy Clause of the United States Constitution. However, a defendant who is not convicted of a violation of § 924(c) may receive an enhancement of his base offense level for possession of a firearm in connection with a drug offense.

Mixon, 926 F.Supp. at 180. Thus, when the court vacates and sets aside the invalid counts, it disturbs the only justification for not including a Section 2D1.1(b)(1) increase on the valid counts. To now sentence correctly, the court must include the section 2D1.1(b)(1) increases.

In so concluding, the court does not suggest the government may use a section 2255 motion offensively. It would be inconsistent with the purposes of section 2255 to vacate and set aside a conviction and sentence only to allow the government to remake its sentencing case using evidence or contentions unrelated to the initial motion. Instead, the court merely insists that "to correct" a sentence under section 2255, it must regenerate a "correct" Guideline sentence absent the invalid counts. A contrary rule would require the court to substitute a second erroneous sentence for the first erroneous sentence.² The explicit language of section 2255 neither condones nor requires such a result.

B. Double Jeopardy

Having found jurisdiction to regenerate a correct sentence, the court must examine whether it may do so consistent with the guarantees of the Double Jeopardy Clause. Specifically, in the context of a section 2255 motion attacking only a portion of a sentence, can the court resentence on the valid counts if the defendants remain in custody on those counts?

The Ninth Circuit has answered this question in an analogous context. With a direct appeal, the Double Jeopardy Clause does not bar a sentencing court from resentencing on a valid count when two criteria are met: (1) the "sentencing package" rule applies to allow the court to reexamine the entire sentencing scheme; and (2) defendant has not completed serving the valid portion of the sentence. See United States v. Moreno-Hernandez, 48 F.3d 1112, 1116 (9th Cir. 1995); United States v. Jenkins, 884 F.2d 433, 441 (9th Cir.1989), cert. denied, ___ U.S. ___, 115 S.Ct. 2598, 132 L.Ed.2d 844 (1995); United States v. Andersson, 813 F.2d 1450, 1462 (9th Cir.1987).

These direct appeal criteria should extend to these section 2255 motions. Defendants' section 2255 motions depend on a pure legal argument: Bailey introduced an evidentiary standard which the government did not satisfy. This is the kind of argument that defendants could have raised on direct appeal had Bailey been decided before they exhausted their direct appeals. Had they done so, the Ninth Circuit could have reversed the invalid counts and this court could then have examined the "entire sentencing" packages — not just a portion of them. Jenkins, 884 F.2d at 441. It makes no sense to apply a different constitutional analysis to a section 2255 motion than applies on direct appeal when, as here, the basis for the section 2255 motion involves a straight-forward legal issue of the kind that typically arises on direct appeal.

Applying the Ninth Circuit's direct appeal criteria to these facts, the court concludes that the Double Jeopardy Clause does not preclude resentencing. First, the "sentencing package" rule applies. That rule allows the district court to resentence under the unchallenged counts when the challenged count involves closely related misconduct. Jenkins, 884 F.2d at 441. Defendants' section 2255 motion papers challenge their sentences under the invalid counts. The invalid and valid counts involve closely related misconduct: they arise out of the same series of events and conceptually are woven together through the applicable sentencing provisions. Because defendants' section 2255 motions disturb the correctness of the entire sentencing scheme, and not just a portion of it, double jeopardy does not bar a fuller review of the entire sentencing package. Second, defendants have not completed serving their sentences under the valid counts. This fact distinguishes those cases where the court found double jeopardy had attached because the defendant had served the entire sentence on the valid count. See ...