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WOODHOUSE v. U.S.

United States District Court, Central District of Illinois, Springfield Division


July 26, 1996

RUSSELL D. WOODHOUSE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

In the wake of Bailey, the Government wants to resentence. Resentence it must be.

I. Background

On August 23, 1990, Petitioner Russell Woodhouse was indicted for: count I — conspiring to distribute LSD, 21 U.S.C. § 841(a)(1) and § 846; count II — distributing LSD, 21 U.S.C. § 841(a)(1); and count III — using a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1).

On December 4, 1990, Woodhouse pleaded guilty to counts I (conspiring to distribute LSD) and III (using a firearm during and in relation to a drug trafficking crime). Woodhouse was sentenced to a term of imprisonment of 127 months — 67 months on count I and 60 months on count III to run consecutive to count I.*fn1 Woodhouse appealed, but the appeal was subsequently dismissed on Woodhouse's motion.

On February 15, 1996, Woodhouse filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He claimed that his conviction under § 924(c)(1) for using a firearm during a drug trafficking crime is inconsistent with the Supreme Court's recent decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Assuming Bailey applied retroactively to a § 2255 motion, the Court agreed with Woodhouse's position.*fn2 See Court Order of February 16, 1996. The Court directed the Government to respond. In response, the Government conceded Woodhouse's position. Accordingly, on February 26, 1996, the Court entered an order vacating Woodhouse's § 924(c)(1) conviction.

Now, the problems started.

In the Government's response, it conceded Woodhouse's position regarding Bailey's invalidation of the § 924(c)(1) conviction, but, it also asked the Court to resentence Woodhouse on the remaining count — conspiracy to distribute LSD. The Government seeks to add 2 levels to Woodhouse's total offense level pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon — a firearm — in connection with the conspiracy to distribute LSD conviction.

The 2 level enhancement was not available to the Government at the time of the original sentencing. That is, when one is convicted of violating § 924(c)(1) in addition to the predicate drug trafficking offense, the Sentencing Guidelines do not permit a § 2D1.1(b)(1) enhancement to the offense level associated with the drug trafficking offense. The rationale is that because the defendant is already being punished — by way of a mandatory 60 month sentence to run consecutive to the sentence imposed on the predicate drug trafficking offense — under § 924(c)(1) for using or carrying the firearm, the Sentencing Guidelines view a § 2D1.1(b)(1) enhancement for possessing a firearm as an unwarranted double counting, i.e., the defendant would be punished twice — once under § 924(c)(1) and once under § 2D1.1(b)(1) — due to the firearm's connection with the underlying drug trafficking offense. See § 2K2.4, Commentary, Background; § 3D1.1, Commentary, Application Note 1.

Accordingly, since Woodhouse's § 924(c)(1) is invalid as a result of the Bailey decision, the § 924(c)(1) conviction no longer bars the application of the § 2D1.1(b)(1) enhancement. Thus, the Government wants Woodhouse resentenced to increase his base offense level for the conspiracy to distribute LSD conviction by 2 levels under § 2D1.1(b)(1) — which, of course, would increase the guideline imprisonment range for that offense. That, of course, would have been the result had Woodhouse never been convicted of the § 924(c)(1) charge at the time of the original sentencing.*fn3

The Court was initially skeptical as to whether the Government could resentence a successful § 2255 petitioner on a valid conviction — the conspiracy to distribute LSD conviction — which went unchallenged in the § 2255 motion. So, in the order allowing Woodhouse's § 2255 motion and vacating the § 924(c)(1) conviction, the Court appointed counsel for Woodhouse and set a schedule for the parties to brief the resentencing issue.

Something interesting happened shortly thereafter, which, as will be seen, adds a subtle wrinkle to the Court's analysis. To review, Woodhouse originally received a total sentence of 127 months of imprisonment — 67 months were allocated to the conspiracy to distribute LSD conviction and 60 months were allocated to the § 924(c)(1) conviction. The moment the Court allowed the § 2255 motion and amended the judgment to reflect the vacated § 924(c)(1) conviction, technically, Woodhouse had a total sentence of 67 months of imprisonment — the amount of imprisonment time allocated to the conspiracy to distribute LSD conviction. After subtracting Woodhouse's credit for "good time," he had served more than 67 months in prison at the time of the Court's order. Thus, technically, he had completed his imprisonment period for the conspiracy to distribute LSD conviction.

Because his imprisonment period was now completed, the Bureau of Prisons notified the Government that it had to release Woodhouse. The Government immediately filed a motion to stay the sentence until the resentencing issue was resolved. The Court scheduled an emergency telephone conference with the Government and the Federal Public Defender's Office — Woodhouse's appointed counsel. At the time of the telephone conference, however, the Court was informed that the Bureau of Prisons had just released Woodhouse. The Government agreed not to seek to arrest Woodhouse pending the resolution of the resentencing issue, thus, the Government's motion to stay the sentence was moot.

Woodhouse has been out of jail since early March 1996.

II. Discussion

Woodhouse's resentencing presents at least three significant issues: (1) Does the Court have jurisdiction to resentence Woodhouse?; (2) Would Woodhouse's resentencing violate the Fifth Amendment's Double Jeopardy Clause?; and (3) Would placing Woodhouse back in jail violate the Due Process Clause?

As more thoroughly discussed below, the Court concludes that it has jurisdiction to resentence Woodhouse, the resentencing does not violate the Double Jeopardy Clause, and requiring Woodhouse to report back to prison does not violate the Due Process Clause.*fn4 The Court will address each issue in turn.

A. Jurisdiction

The argument that the Court lacks jurisdiction to resentence Woodhouse goes something like this: Woodhouse's § 2255 motion attacked only his § 924(c)(1) conviction, it did not attack the drug trafficking conspiracy conviction; thus, since Woodhouse did not put his drug conviction on the table, the Court has no jurisdiction to increase the part of the sentence associated with that conviction. Or, in other words, the Court has jurisdiction over only the part of the sentence that is associated with the conviction attacked in the § 2255 motion — the § 924(c)(1) conviction which produced a 60 month consecutive sentence. Thus, the argument goes, the Court can only chop off the 60 month consecutive sentence.

The Court disagrees.

To begin, Woodhouse's argument is contradicted by the plain-language of § 2255. When a district court finds that the collateral attack is meritorious, § 2255 first directs the court to "vacate and set the judgment aside." The Court did that here — the Court vacated the § 924(c)(1) conviction and set the "judgment" aside.*fn5 Next, § 2255 authorizes four types of relief available to the successful litigant depending upon the circumstances: the court "shall [1] discharge the prisoner or [2] resentence him or [3] grant a new trial or [4] correct the sentence as may appear appropriate." Based on the circumstances of the instant case, the Court concludes that it must resentence Woodhouse or correct the sentence as may appear appropriate to effectuate a sentence consistent with the Sentencing Guidelines.*fn6 See United States v. Garcia, 956 F.2d 41, 45 (4th Cir. 1992) ("The § 2255 remedy is broad and flexible and entrusts to the courts the power to fashion an appropriate remedy.").

One could argue that the four types of relief available to a successful § 2255 petitioner are limited to only the conviction under attack — here, the § 924(c)(1) conviction. That is, with respect to the § 924(c)(1) conviction only, the Court "shall" (1) discharge the prisoner, (2) resentence him, (3) grant a new trial, or (4) correct the sentence as may appear appropriate. The Court has a few problems with that interpretation.

First, nothing in § 2255 suggests that it should be interpreted in such a restrictive manner. Rather, it appears that the relief available is broad and flexible.

Second, such an interpretation leads to another interesting problem. If the available forms of relief are limited to solely the conviction under attack, what option does the Court have with respect to the vacatur of Woodhouse's § 924(c)(1) conviction? In other words, because the successful Bailey petitioner could still be serving the part of the sentence associated with the predicate drug offense, certainly the Court could not discharge the prisoner — option number one. And, because — as a result of the Bailey decision — the petitioner did not violate § 924(c)(1), there is no conviction under § 924(c)(1) for the Court to conduct a resentencing, nor would there be a § 924(c)(1) sentence for the Court to correct as may appear appropriate — options number 2 and 4. Similarly, the petitioner did not commit an offense in violation of § 924(c)(1), the Court cannot obviously grant a new trial on the § 924(c)(1) charge — option number 3. In conclusion, if the available forms of relief are limited to solely the conviction under attack in the § 2255 motion, there does not appear to be a statutorily authorized form of relief available for the Court to grant in the instant situation — thus, what is the Court to do?

More importantly, however, the Court finds that interpreting § 2255 narrowly to permit relief with respect only to the conviction under attack violates the well-recognized principle — which is consistent with the broad relief available based on a plain-language interpretation of § 2255 — that a multi-count conviction produces a sentencing package, not independent separate sentences on each count of conviction. See Pedretti v. United States, No. 96-CV-0146, 1996 WL 340769 (N.D.N.Y. April 26, 1996) (holding that the district court inherently has the jurisdiction to resentence a successful § 2255 petitioner when the vacatur of a count frustrates the interdependent original sentencing package).*fn7 The U.S. Court of Appeals for the First Circuit eloquently explained the sentencing package principle as follows:

    [W]hen a defendant is found guilty on a multicount
    indictment, there is a strong likelihood that the
    district court will craft a disposition in which
    the sentences on the various counts form part of an
    overall plan. When a conviction on one or more of
    the component counts is vacated, common sense
    dictates that the judge should be free to review
    the efficacy of what remains in light of the
    original plan, and to reconstruct the sentencing
    architecture upon remand, within applicable
    constitutional and statutory limits, if that
    appears necessary in order to ensure that the
    punishment still fits both crime and criminal.

United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989); accord, United States v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987).*fn8

There is no doubt in the mind of this judge that Woodhouse's total sentence was based on a sentencing package scheme. In fact, it is the opinion of this Court that, due to the application of the Sentencing Guidelines, every aggregate sentence which is based on a drug conviction — such that § 2D1.1 of the Guidelines applies — and a § 924(c)(1) conviction produces a sentencing package for the two convictions.*fn9 Indeed, the guideline imprisonment range for the drug conviction in this case was entirely dependent upon the § 924(c)(1) conviction. See United States v. Clements, 86 F.3d 599, 601 (6th Cir. 1996) ("We conclude that defendant's sentences for his [drug conviction and § 924(c) conviction] were interdependent.").

As discussed previously, regarding the drug conviction, Woodhouse had a total offense level of 32 and a criminal history category of I, resulting in a guideline imprisonment range of 121 to 151 months. See Footnote 1, supra. But for the § 924(c)(1) conviction — which, of course, prevented the 2 level enhancement for possessing a dangerous weapon under § 2D1.1(b)(1) — Woodhouse's total offense level would have increased to 34, producing a guideline imprisonment range of 151 to 188 months on the drug conviction. Thus, the fact that the applicability of the § 2D1.1(b)(1) enhancement to the drug conviction is totally dependent upon whether the defendant is also convicted under § 924(c)(1) inherently produced a sentencing package,*fn10 i.e., the Sentencing Guidelines necessarily constructed the sentencing package — or, at least, the basic framework of the sentencing package.*fn11

Furthermore, at the sentencing hearing, the Government made a motion under § 5K1.1 for a downward departure based on Woodhouse's "substantial assistance." The Court allowed the motion and downward departed with respect to the drug conviction from an imprisonment range of 121 to 151 months to 67 months. When this judge downward departs, one of the primary factors considered in determining the amount of the departure is the total amount of time of incarceration. But for § 924(c)(1)'s mandatory 60 month consecutive sentence, the Court would not have allowed such a beneficial downward departure.*fn12

In summary, the Court finds that it has jurisdiction to resentence Woodhouse based on the plain-language of § 2255 and, alternatively, on the Court's inherent authority to correct an unbundled sentencing package when a count of a multi-count conviction is properly vacated. Through the application of the Sentencing Guidelines — which included the inapplicability of § 2D1.1(b)(1) and the applicability of § 5K1.1 — Woodhouse's total sentence of 127 months — 67 months on the drug conviction followed by the § 924(c)(1) consecutive 60 month sentence — was clearly based on a sentencing package scheme. The vacatur of the § 924(c)(1) conviction unbundled that package.

B. Double Jeopardy

Both parties agree that the resolution of whether resentencing on the drug conviction would violate the Double Jeopardy Clause focuses on whether Woodhouse had a reasonable expectation of finality in the sentence allocated to the drug conviction. See United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). Woodhouse argues that because he fully satisfied the 67 month term of imprisonment allocated to the drug conviction, his expectation of finality in that sentence crystallized.

The Court disagrees.

Woodhouse's position is based on the premise that he received separate and distinct sentences on the drug count and the § 924(c)(1) count. As discussed, however, the Court rejects such reasoning. Woodhouse received one aggregate sentence, a sentencing package which included imprisonment time allocated to both the drug count and the § 924(c)(1) count. Thus, when Woodhouse filed the § 2255 motion attacking the validity of the § 924(c)(1) conviction, he also necessarily attacked the Court's sentencing package. By attacking the sentencing package, he does not have a reasonable expectation in the finality of any portion of the sentencing package. Indeed, by filing the § 2255 motion, he put his entire sentence at issue again.

C. Due Process

Neither party addressed this issue, but the Court speculates that because Woodhouse was released from prison, at some point in time it may be fundamentally unfair to require him to report back to prison. The Court could not locate analogous case law, but the Court does not believe that — under the facts of the instant case — the Due Process Clause would be violated by requiring Woodhouse to report back to prison after a five-month "hiatus." Keep in mind, since his release, the Court has retained jurisdiction over Woodhouse based on his supervised release status.

III. Conclusion

To summarize, the Court finds that it has the jurisdiction to resentence Woodhouse on the sole remaining count of conviction, no Double Jeopardy violation will ensue as a result of the resentencing, nor will a Due Process violation result.

The Court does not find it necessary to prepare a new Presentence Investigation Report. The Court will merely increase the total offense level for the drug conviction by 2 levels to 34 pursuant to § 2D1.1(b)(1). An offense level of 34 and a criminal history category of I produces a guideline imprisonment range of 151 to 181 months.

The parties may argue their respective positions regarding the amount of the § 5K1.1 downward departure at the resentencing hearing.

The resentencing hearing is set for August 12, 1996, at 11:00 a.m.

Ergo, the Government's request for resentencing is ALLOWED.


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