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WOODHOUSE v. U.S.

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 ...


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