Appeal from the United States District Court for the Southern District of Illinois.
Before MANION, DIANE P. WOOD, and EVANS, Circuit Judges.
J. Phil Gilbert, Chief Judge.
DECIDED DECEMBER 19, 1996
Richard Alexander Smith had the bad luck to be stopped for speeding on Interstate 57 in Williamson County, Illinois. After determining that Smith did not own the car he was driving, the state trooper obtained written permission from Smith to search it. The trooper noticed packages wrapped in duct tape in the right door panel. One package was examined and found to contain what looked like marijuana. The car was taken to the Williamson County Jail where the door was dismantled. The other packages, all wrapped in duct tape, contained approximately 5 kilograms of marijuana. In addition, a .38 caliber semi-automatic pistol was found, wrapped in a red shop cloth secured with masking tape.
So, rather than getting a traffic ticket, Smith was charged in a three-count federal indictment. Specifically, he was charged with possession with the intent to distribute marijuana, in violation of 21 U.S.C. secs. 841(a)(1) and 841(b)(1)(D) on count 1, knowingly using and carrying a firearm in connection with drug trafficking, in violation of 18 U.S.C. sec. 924(c) on count 2, and possession of a firearm by an illegal alien, in violation of 18 U.S.C. sec. 922(g)(1) on count 3. To add to his problems, Smith was subject to deportation to his native country, Belize.
Smith went to trial before Chief Judge J. Phil Gilbert in the Southern District of Illinois and was found guilty by a jury on July 18, 1994, on all counts. He was sentenced to a term of 16 months on counts 1 and 3 and a mandatory 60-month consecutive term on the sec. 924(c) count. He appealed, raising issues regarding a motion to suppress and certain applications of the guidelines. His attorney filed a no-merit brief, pursuant to Anders v. State of California, 386 U.S. 738 (1967), and sought leave to withdraw. The request was granted and the appeal was dismissed. Smith was left in prison to serve his 76-month term.
Smith's luck changed, however, when the United States Supreme Court decided Bailey v. United States, 116 S. Ct. 501 (1995). He quickly filed a petition pursuant to 28 U.S.C. sec. 2255, claiming that his sec. 924(c) conviction for using and carrying a firearm in connection with a drug offense must be vacated. The government conceded the point but asked that Smith be resentenced on the two remaining counts. The sec. 924(c) count was dismissed on June 7, 1996.
On June 13, 1996, Smith was about to be released from custody because he had served approximately 26 months of a sentence which, at that point, seemed to the Bureau of Prisons to be only 16 months long. The government objected to his release pending resentencing and Chief Judge Gilbert ordered that Smith be detained.
Then on June 25, 1996, the government filed a motion to withdraw its request for resentencing on the basis that Smith had completed service of the currently valid portion of his sentence prior to the granting of the sec. 2255 petition vacating the sec. 924(c) conviction. The government stated that it believed the issue presented a close question and, to avoid depriving Smith of his rights, it said Smith should be released. But Chief Judge Gilbert had other ideas. On June 26 he informed the parties that he would not agree to Smith's release, and on July 2, 1996, he issued an order setting out what he thought was his legal authority to resentence Smith. At a July 29, 1996, hearing, Smith was resentenced on counts 1 and 3 to concurrent terms of 33 months. Smith, not unexpectedly, appeals.
Smith's position is pretty much summed up in a statement he made during the resentencing proceeding:
Well, I think the whole resentencing is unfair to me. And, you know, it's just unfair. I done did 27 months on the original sentence on Count 1 and Count ...