The opinion of the court was delivered by: Richard Mills, District Judge:
In the wake of Bailey, the Government wants to resentence.
Resentence it must be.
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
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.
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 ...