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UNITED STATES v. RAY

December 3, 1996

UNITED STATES OF AMERICA
v.
EVANS RAY, Defendant.


Louis F. Oberdorfer, UNITED STATES DISTRICT JUDGE


The opinion of the court was delivered by: OBERDORFER

This Memorandum confirms the resentencing that occurred in open court on November 14, 1996. Defendant Evans Ray was resentenced principally to 88 months in prison, to be followed by a four-year term of supervised release. His conviction for using or carrying a firearm in relation to a drug trafficking offense, see U.S.C. § 924(c) (1994), had been previously vacated pursuant to the Supreme Court's decision in Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), and 28 U.S.C. § 2255. The Government moved to resentence Ray on his remaining narcotics convictions and, in particular, requested that he receive a two-level "gun bump" as an upward adjustment for possessing a dangerous weapon during the commission of his crimes, see U.S.S.G. § 2D1.1(b)(1) (1996). *fn1"

 In response, Ray contended that any resentencing would be improper, since by the time he was resentenced, he would have already completed nearly 70 months of his original 87-month term of imprisonment attributable to the narcotics convictions, and would have been eligible for release in a few weeks. *fn2" Accordingly, Ray argued that (1) there was no jurisdiction to resentence him, and (2) such resentencing would violate the Double Jeopardy Clause and/or Due Process Clause of the Fifth Amendment.

 For the reasons stated at resentencing, and set forth in greater particularity here, the Government's Motion to Resentence was granted, however, with the proviso that Ray should receive an offsetting downward departure of one level. The Sentencing Commission had not adequately considered the due process concerns that would arise if Ray were resentenced to a larger incremental period of incarceration after having already served much of his original term.

 I.

 In April 1991, Ray was convicted by a jury on three counts: (1) distribution of cocaine base, see 21 U.S.C. § 841(b)(1)(C) (1994); (2) possession with intent to distribute, see 21 U.S.C. § 841(b)(1)(B)(iii) (1994); and (3) using or carrying a firearm in relation to a drug trafficking offense, see 18 U.S.C. § 924(c) (1994). He was sentenced principally to 147 months in prison. That sentence consisted of two 87-month terms of imprisonment (to be served concurrently) for his narcotics convictions, and one 60-month term of imprisonment (to be served consecutively) for his § 924(c) conviction.

 In April 1996, Ray moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence insofar as it was based on his conviction under 18 U.S.C. § 924(c). He relied on the Supreme Court's intervening decision in Bailey v. United States, which interpreted § 924(c) in such a manner as to place his conduct outside the purview of that statute. The Government agreed that there was insufficient evidence to sustain the § 924(c) conviction, and that Ray was entitled to post-conviction relief. An Order dated June 5, 1996 granted Ray's motion to vacate and set aside his sentence. The Government then moved to resentence Ray on his remaining narcotics convictions, requesting that Ray receive a two-level "gun bump" under the Sentencing Guidelines, see U.S.S.G. § 2D1.1(b)(1).

 II.

 The first issue to be addressed at resentencing was whether a district court has jurisdiction to resentence a defendant whose § 924(c) conviction has been vacated pursuant to Bailey in a collateral attack under 28 U.S.C. § 2255. No Court of Appeals has yet ruled on this issue, and even within this circuit, numerous district courts have been sharply divided. Compare United States v. Tolson, 935 F. Supp. 17, 19 (D.D.C. 1996) (Greene, Joyce Hens, J.) with United States v. Greenwood, 1996 U.S. Dist. LEXIS 14655, Civ. A. No. 96-00784, 1996 WL 577141, at *1 (D.D.C. Sept. 25, 1996) (Sporkin, J.). One issue is not in dispute, however. It is well-settled that, in the context of a remand from direct appeal, a district court is authorized to resentence the defendant. See United States v. Fennell, 316 U.S. App. D.C. 198, 77 F.3d 510 (D.C. Cir. 1996); see also United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir. 1996). Ray contended, however, that where the situation involves collateral review, the jurisdictional requirements for resentencing are more stringent. See Hillary v. United States, Civ. No. JFM-96-1842 (D. Md. Aug. 7, 1996) (distinguishing direct appeal from collateral review).

 In general, the Sentencing Reform Act of 1984 mandates that, once a district court imposes its sentence, it may not modify the terms of imprisonment unless specifically authorized to do so. See 18 U.S.C. § 3582(c) (1994) (modification must be "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure"). In the context of direct appeal, that express permission is found in the statute governing appeals, see 28 U.S.C. § 2106 (1994). The Government here contended that the statute governing collateral review, see 28 U.S.C. § 2255, also provides an express grant of permission. Section 2255 requires that the district court, in granting post-conviction relief, "vacate and set the judgment aside and . . . discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." See id. (emphasis added). Although there is no consensus as to the proper interpretation of § 2255, and the matter is not free from doubt, the established sentencing process more nearly comports with those courts holding that the vacatur of a judgment pursuant to § 2255 requires the defendant to be resentenced on the remaining counts left undisturbed by the grant of post-conviction relief.

 The operative terms in the statute, 28 U.S.C. § 2255, are the words "judgment" and "sentence." Their definitions are crucial to this case and require explication. The judgment in a criminal case is the document that memorializes the final adjudication of the district court. See Fed. R. Crim. P. 32(d)(1) (1996). A judgment may dispose of multiple counts relating to one or more separate offenses. For example, the judgment in this case (a copy of which is attached) adjudicated all three of the offenses charged in Ray's indictment -- distribution of cocaine base, possession with intent to distribute, and using or carrying a firearm in relation to a drug trafficking offense.

 The judgment also sets forth a single, overarching sentence to be served by the defendant. That sentence may (and often does) consist of several discrete components. For example, in this case, the sentence was comprised of six distinct components: an 87-month term of imprisonment on Count One, to be followed by a four-year term of supervised release; an 87-month term of imprisonment on Count Two, to be followed by a four-year term of supervised release; and a 60-month term of imprisonment on Count Three, to be followed by a three-year term of supervised release. Each of those "terms of imprisonment" and "terms of supervised release" were then aggregated, in either concurrent or consecutive fashion, to achieve the final result -- a single "sentence." See Merritt v. United States, 930 F. Supp. 1109, 1113-14 (E.D.N.C. 1996).

 Finally, it is a reflection of the established practice that the judgment here used the singular and not the plural in stating, "The sentence is imposed pursuant to the Sentencing Reform Act of 1984." See United States v. Ray, No. 90-0420-01 (D.D.C. June 25, 1991) (original judgment) (emphasis added). That quoted statement appears in the original printed judgment form, AO 245 S, provided by the Administrative Office of the United States Courts and used throughout the federal system. If Ray were correct that a separate sentence was imposed on each count of conviction, then presumably, the printed judgment form would have allowed for multiple sentences to be imposed in the plural. In light of these facts, the precedent and practice indicate that, although a defendant may receive multiple sanctions (e.g., multiple terms of imprisonment, terms of supervised ...


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