States v. Fogel, 264 U.S. App. D.C. 292, 829 F.2d 77, 87-89 (D.C. Cir. 1987), there was no such bar to resentencing here. As an initial matter, the overall sentence in this case was not being increased, but decreased from 147 months' imprisonment to some lesser period of incarceration. See Tolson, 935 F. Supp. at 21.
Moreover, Ray could not have had a "legitimate expectation of finality" in his original sentence since he was the one who sought review of its legality by bringing a § 2255 motion. See United States v. Silvers, 90 F.3d 95, 100 (4th Cir. 1996) (double jeopardy does not prohibit resentencing after successful collateral attack); United States v. Cochran, 883 F.2d 1012, 1017 (11th Cir. 1989). Although Ray contended that he held some vested expectation, at least, in the length of his "sentence" on the unchallenged counts, that argument rested on the same faulty premise that each count of conviction has its own severable sentence. In bringing his § 2255 motion, Ray necessarily challenged not merely a discrete term of imprisonment, but the overall judgment. See Mayes v. United States, 937 F. Supp. 659, 661 (E.D. Mich. 1996); Merritt, 930 F. Supp. at 1115.
For the same reasons, the resentencing of Ray was not prohibited by the Due Process Clause. Ray's expectations regarding the finality of his original sentence had not yet "crystallized" to the point where it would be fundamentally unfair to defeat them. See United States v. Lundien, 769 F.2d 981, 987 (4th Cir. 1985), cert. denied, 474 U.S. 1064, 88 L. Ed. 2d 789, 106 S. Ct. 815 (1986); Thayer, 937 F. Supp. at 667; Merritt, 930 F. Supp. at 1115. Additionally, although Ray contended that any increase in his sentence would appear vindictive, his overall sentence was not being increased, but reduced. See Kelly v. Neubert, 898 F.2d 15, 18 (3d Cir. 1990) (resentencing will not be considered vindictive "when some of the defendant's individual sentences are increased, but his aggregate sentence is reduced . . . ."); United States v. Gray, 852 F.2d 136, 138 (4th Cir. 1988) (same). Therefore, no basis existed here to support an inference of either prosecutorial or judicial vindictiveness.
Given that no jurisdictional or constitutional bar prohibited the resentencing Ray after his successful § 2255 motion, Ray was resentenced in accordance with the guidelines currently in effect. There was, however, one final issue that remained to be addressed. Although the Due Process Clause did not prohibit Ray's resentencing, neither was it irrelevant insofar as determining what his sentence should be. Serious concerns about fundamental fairness might arise if a defendant were required to serve additional time in prison after having already completed a significant portion of his or her original sentence. See Lundien, 769 F.2d at 987; Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.), cert. denied, 439 U.S. 933, 58 L. Ed. 2d 329, 99 S. Ct. 327 (1978). "After a substantial period of time, . . . it might be fundamentally unfair . . . for a court to alter even an illegal sentence in a way which frustrates a prisoner's expectations by postponing his parole eligibility or release date far beyond that originally set." Id.
Where a defendant has already completed much of his or her original term of imprisonment, the unfairness that can result from extending incarceration at such a late date should be taken into account. The appropriate way to consider this unfairness is through the downward departure mechanism. Although other courts have simply refused to resentence, see, e.g., Warner, 926 F. Supp. 1387, 1395-96; Greenwood, Civ. A. No. 96-00784, 1996 WL 577141, at *1, that remedy appears too blunt. A more judicious exercise of downward departures, see U.S.S.G. § 5K2.0 (1996), should instead provide greater flexibility than the simple yes-or-no dichotomy involved in deciding whether to resentence. Moreover, the departure remedy was warranted in this situation because the Sentencing Commission had not adequately considered the due process concerns that would arise if defendants such as Ray were resentenced with the full two-level "gun bump" -- after having nearly completed their original terms of imprisonment attributable to the narcotics offenses.
In this case, Ray was originally sentenced to 87 months in prison for distribution of cocaine base and possession with intent to distribute. After taking into account his pretrial detention and good-time credit, Ray would have been eligible for release around December 1996 -- approximately one month from the date of his resentencing. Therefore, considering the extent to which Ray had nearly completed his original term of imprisonment, it was appropriate to depart downward by one level.
Ray was resentenced, therefore, with an adjusted offense level of 27 (instead of 28), and with a Criminal History Category of III, his guideline range was 87-108 months' imprisonment. Additionally, a sentence at or near the bottom of that range was appropriate, given further consideration to due process concerns, as well as the fact that Ray had already begun a transition program designed to ease his progression from prison to civilian life. Any greater sentence would have unduly disrupted that transition process. Accordingly, Ray was resentenced principally to 88 months in prison (less time served for pre- and post-trial detention and good-time credit), to be followed by a four-year term of supervised release.
Date: December 3, 1996
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT for the District of Columbia
UNITED STATES OF AMERICA V. Evans Ray
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)
Case Number: CR90-420-1
(Name of Defendant)
 pleaded guilty to count(s)
[xx] was found guilty on count(s) 1, 2 and 3 after a plea of not guilty.
Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offenses:
Date Offense Count
Title & Section Nature of Offense Concluded Number(s)
21 USC 841(a)(1)&(b)(1)(c) Dist of cocaine base 9/4/90 1
21USC841(a)(1)&(B)(1)(B)(iii) Poss w/intent to 9/4/90 2
5 gms or more coc
18 USC924(c) Poss of firearm 3
commission of drug 9/4/90
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