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UNITED STATES v. TOLSON

July 22, 1996

UNITED STATES OF AMERICA
v.
JEROME TOLSON, Defendant.



The opinion of the court was delivered by: GREEN

 This matter is before the Court on the defendant's motion under 28 U.S.C. § 2255 to vacate his conviction under 18 U.S.C. § 924(c) based upon Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995). *fn1"

 While the government concedes that the 924(c) conviction cannot stand after Bailey, it has requested that the Court include the two-level adjustment under U.S.S.G. § 2D1.1(b)(1) in resentencing the defendant. In response, the defendant contends that the Court lacks the authority to resentence him on the drug conviction, and that such resentencing would violate the Constitution because he has a legitimate expectation of finality in his original sentence.

 I. Background

 On January 12, 1993, Defendant Tolson and codefendant Terrance Gamble were arrested after a search of Gamble's car revealed two weapons and a quantity of crack cocaine. On February 9, 1993, the defendant was charged in a five-count Indictment, which included Count I charging him with possession with intent to distribute "a mixture and substance containing a detectable amount of cocaine base, also known as crack," in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and Count II charging him with the use and carry of a firearm during a drug offense in violation of 18 U.S.C. § 924(c)(1). *fn2"

 After Judge Tanner denied the defendants' motion to suppress at an evidentiary hearing on May 21, 1993, Gamble pled guilty and later testified against Tolson at trial. Among other things, he testified that both he and Tolson owned part of the drugs and that each owned one of the weapons. Trial Transcript ("TR"), at 7 (May 25, 1993). Evidence was introduced at the three-day jury trial that the mixture was cocaine base in crack form. On May 26, 1993, Tolson was convicted on all counts.

 On July 30, 1993, the Court denied Tolson's motion for a new trial and sentenced him "to be imprisoned for a term of TWO HUNDRED ELEVEN (211) months. This consists of 151 months on Counts 1 and 3 to run concurrent by the count; 60 months on Count 2 to run consecutive to Counts 1 & 3; [and] 12 months on Counts 4 & 5 to run concurrent by the counts and to Counts 1 & 3." Judgment in a Criminal Case, at 2 (July 30, 1993).

 Tolson appealed on three grounds: (1) that the introduction of "bad act" evidence under Rule 404(b) caused unfair prejudice, see Brief for Appellant, at 9 (filed August 9, 1994); (2) that the evidence was insufficient to support his convictions of possession with intent to distribute crack cocaine and the related firearms offenses, see id. at 17; and (3) that the quantity of drugs should have been decided by the jury, see id. at 26. In an unpublished opinion, the U.S. Court of Appeals for the District of Columbia affirmed Tolson's conviction except as to Count III (18 U.S.C. § 922(k)), which was vacated due to insufficient evidence. See Judgment, No. 93-3166 (filed Apr. 20, 1995; mandate issued June 12, 1995).

 On December 6, 1995, the Supreme Court handed down Bailey, and, on April 22, 1996, Tolson filed the instant motion under 28 U.S.C. § 2255.

 II. Discussion

 Tolson first challenges this Court's authority to resentence him. Tolson's argument is rejected. Although no Court of Appeals has yet addressed this precise question, the greater weight of authority holds that a district court has the authority to resentence on interdependent counts after vacating a 924(c) count under Bailey. See United States v. Merritt, 930 F. Supp. 1109, 1996 U.S. Dist. LEXIS 9597, 1996 WL 376947 (E.D.N.C., June 21, 1996); Alton v. United States, 928 F. Supp. 885, 1996 U.S. Dist. LEXIS 7672, 1996 WL 303628 (E.D.Mo., June 3, 1996); Sanabria v. United States, 916 F. Supp. 106, 114 (D.P.R. 1996); Mixon v. United States, 926 F. Supp. 178, 180 (S.D.Ala. 1996); Pendretti v. United States, 1996 WL 340759 (N.D.N.Y., April 26, 1996); United States v. Seibert, 1996 U.S. Dist. LEXIS 5755, 1996 WL 221768 (E.D.Pa., April 26, 1996); see also United States v. Baker, 1996 U.S. Dist. LEXIS 5362, 1996 WL 208449 (E.D.Pa., April 18, 1996) (denying motion to vacate 924(c) count but acknowledging authority to recalculate sentence with two-level "gun bump" if motion had been granted). The Court finds the reasoning of Merritt particularly compelling.

 Contrary to the general weight of authority, Tolson argues that because only a prisoner can bring a motion under 28 U.S.C. § 2255, failure to challenge certain counts removes those counts from the Court's jurisdiction. While there is some support for this argument, see Rodriguez v. United States, 933 F. Supp. 279, 1996 U.S. Dist. LEXIS 9027, 1996 WL 361538 (S.D.N.Y., June 27, 1996); Bell v. United States, 917 F. Supp. 681, 684-85 (E.D.Mo. 1996); Beal v. United States, 924 F. Supp. 913, 917 (D.Minn. 1996); Gardiner v. United States, 1996 U.S. Dist. LEXIS 6158, 1996 WL 224798 (D.Minn., May 3, 1996), the reasoning in these cases is not entirely clear, and the cases are not persuasive.

 Tolson's principal argument is based on an overly narrow reading of 28 U.S.C. § 2255 and his failure to acknowledge the "sentencing package" doctrine. While 18 U.S.C. § 3582 may limit a court from modifying a term of imprisonment once imposed (as Tolson contends), it does allow the court to modify a sentence to the extent expressly permitted by statute. *fn3" 28 U.S.C. § 2255 falls within this provision, because once a defendant moves to vacate or correct his sentence, it permits the court to grant relief and to "correct the sentence as may appear appropriate." *fn4" See Merritt, 930 F. Supp. 1109, 1996 WL 376947, *4; Pendretti, 1996 WL 340769, *2.

 The Merritt Court reasoned that because it had imposed an aggregate sentence, upon resentencing, it must re-examine that sentence and make any appropriate adjustments. While the Merritt Court relied upon direct appeal cases for the "sentencing package" doctrine, the court stated that the same rule should apply in the collateral ...


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