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UNITED STATES of America, Plaintiff-Appellee, v. Mark D. CLEMENTS, Defendant-Appellant

United States Court of Appeals for the Sixth Circuit1996-06-17No. No. 94-5224
86 F.3d 599

Summary

Holding. The court reversed Clements's conviction under 18 U.S.C. § 924(c) and remanded the case for resentencing on the drug trafficking offenses, as the multiple sentences were interdependent under sentencing guidelines.

Mark Clements was convicted of drug trafficking conspiracy, attempted drug possession with intent to distribute, and firearm possession in relation to drug trafficking. An appellate court initially affirmed all convictions and sentences. However, after the Supreme Court decided Bailey v. United States, which established that a § 924(c) firearm conviction requires proof of active employment of the firearm, the court granted rehearing. The government conceded that the evidence was insufficient to support the § 924(c) conviction under Bailey's standard.

The court addressed whether it had authority to remand for resentencing on the drug offenses despite having already affirmed those sentences. The court concluded that its supervisory power under 28 U.S.C. § 2106 permitted it to vacate and remand the entire sentencing package when multiple sentences are interdependent. Here, the sentences were interdependent because sentencing guidelines prohibited a two-level firearm enhancement for drug offenses when a defendant was separately convicted under § 924(c), but permitted such enhancement when no § 924(c) conviction existed. Thus, removing the § 924(c) conviction required resentencing on the drug offenses to determine whether the firearm enhancement applied.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of evidence for § 924(c) conviction under Bailey standard
  • Appellate authority to remand for resentencing when one conviction is reversed but other sentences were affirmed
  • Interdependence of sentences when sentencing guidelines prohibit double-counting of firearm enhancements

Procedural posture

The defendant appealed following conviction and sentencing on multiple counts, the appellate court initially affirmed, and the defendant then filed a motion for rehearing after intervening Supreme Court precedent.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

OPINION ON REHEARING

KENNEDY, Circuit Judge.

Following a jury trial, defendant Mark D. Clements was convicted of conspiracy and attempt to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). We issued an opinion affirming his convictions and sentence. United States v. Clements, 51 F.3d 273 (6th Cir.1995) (unpublished disposition), cert. denied, — U.S.-, 116 S.Ct. 1868, 134 L.Ed. 2d 966 (1996). Since our decision, however, the Supreme Court has held that a conviction for violating § 924(c) requires “evidence sufficient to show an active employment of the firearm by the defendant.” Bailey v. United States, — U.S.-,-, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995) (emphasis in the original).

After Bailey was decided, defendant filed a Motion for Reconsideration/Petition for Rehearing. In light of Bailey, we requested that the parties file supplemental briefs discussing the impact of that case on defendant’s conviction. The government concedes that under Bailey, the evidence does not support defendant’s conviction under 18 U.S.C. § 924(c). However, the government requests that we remand for resentencing on defendant’s drug conviction, arguing that without the § 924(c) conviction, he should receive a two-level upward adjustment of his offense level under USSG § 2Dl.l(b)(l). Defendant objects to this request on the basis that this Court does not have the authority to remand for sentencing since defendant’s conviction and sentence for his drug trafficking offenses have already been affirmed.

Section 2106 of Title 28 of the United States Code vests courts of appeals with the supervisory power to vacate and remand an entire sentencing package despite the fact that it includes an unchallenged sentence. See 28 U.S.C. § 2106; see also Johnson v. United States, 619 F.2d 366, 368 (5th Cir. 1980); United States v. Moore, 540 F.2d 1088, 1091 (D.C.Cir.1976). This power allows an appellate court, in a ease on a direct appeal from multiple count criminal convictions where the several sentences are interdependent, to vacate all sentences even if only one is reversed on appeal. United States v. Rosen, 764 F.2d 763, 767 (11th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986); United States v. Busic, 639 F.2d 940, 947 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); see Pennsylvania v. Goldhammer, 474 U.S. 28, 30, 106 S.Ct. 353, 354, 88 L.Ed.2d 183 (1985) (holding that the double jeopardy clause did not bar resentencing on counts that were affirmed on appeal when a sentence of imprisonment on another count was vacated).

We conclude that defendant’s sentences for his multiple convictions were interdependent. United States Sentencing Guideline § 2Dl.l(b)(l) provides for a two point increase in offense level when a firearm is possessed in the course of a crime involving the unlawful manufacturing, importing, exporting, or trafficking of drugs. If, however, the defendant is charged with and sentenced separately for using or carrying a firearm in violation of 18 U.S.C. § 924(c), the two-level enhancement for firearm possession pursuant to § 2Dl.l(b)(l) is not permitted so as to avoid double counting. See USSG § 2K2.4, comment, (n. 2); see also United States v. Harris, 959 F.2d 246, 266-67 (D.C.Cir.), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992).

Had the defendant not been convicted under § 924(c), the District Court would have had the discretion to increase his drug trafficking offense level for firearm possession. However, since he was in fact convicted under § 924(c), it did not have such discretion. As such, defendant’s sentences for his drug offenses and using or carrying a firearm were interdependent.

Because defendant’s sentences for conspiracy and attempt to possess with intent to distribute methamphetamine and using or carrying a firearm were interdependent, we find it appropriate and within our power to vacate defendant’s sentence and remand to the District Court for resentencing. See United States v. Lang, 81 F.3d 955, 963 (10th Cir.1996) (holding that when a defendant’s conviction under § 924(c) has been reversed on sufficiency of the evidence grounds on appeal, the case must be remanded for resentencing to determine the applicability of the USSG § 2Dl.l(b)(l) enhancement); United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996) (per curiam) (remanding for resentencing after reversal of appellant’s conviction under 18 U.S.C. § 924(c)); United States v. Roulette, 75 F.3d 418, 426 (8th Cir.1996) (finding that the inapplicability of the prohibition against applying the two-level enhancement once the defendant’s conviction under § 924(c) has been reversed warranted remanding for resentencing). On remand, the District Court must determine whether defendant possessed a firearm in connection with his drug trafficking activities within the meaning of the guidelines.

Accordingly, it is hereby ordered that defendant’s conviction under 18 U.S.C. § 924(c) be reversed and it is further ordered that this case be remanded to the District Court for resentencing. In all other respects, the petition for rehearing is denied.