United States v. Hager ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 3 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6049
(D.C. No. 91-CR-50)
ROBERT L. HAGER, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Robert L. Hager appeals the resentencing order of the district court.
Specifically, Hager argues the court did not have jurisdiction to resentence him in
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
a 28 U.S.C. § 2255 proceeding and that resentencing violated his due process
rights and resulted in double jeopardy. We affirm.
On July 9, 1991, Hager was convicted of (1) possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) being a felon in
possession of firearms, in violation of 18 U.S.C. § 922(g); and (3) using or
carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c). He was sentenced to 165 months' imprisonment on Count 1 and 120
months' imprisonment on Count 2, to be served concurrently. 1 In addition, Hager
was sentenced to 60 months' imprisonment on Count 3, to be served consecutively
with his concurrent sentences. His convictions were affirmed in United States v.
Hager, 969 F.2d 883 (10th Cir. 1992).
On July 22, 1996, Hager filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. The district court vacated his sentence for
using or carrying a firearm in relation to a drug trafficking crime based on Bailey
v. United States, 116 S. Ct. 501 (1995), and resentenced him on Counts 1 and 2.
In resentencing Hager to 188 months' imprisonment, the court enhanced his base
1
Although Hager possessed a firearm in connection with his drug trafficking
offense, he did not receive a two-level enhancement in his base offense level when he
was originally sentenced on Counts 1 and 2 because he was also convicted in Count 3 of
using or carrying a firearm during and in relation to a drug trafficking offense. The
guidelines specifically instruct the district court not to apply an enhancement in this
situation because it would result in "double counting." See U.S.S.G. § 2K2.4 comment
(n.2).
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offense level because he possessed a firearm during the offenses. See U.S.S.G. §
2D1.1(b)(1).
This court recently held that a district court has jurisdiction in a 28 U.S.C.
§ 2255 proceeding to resentence a defendant on related remaining convictions
after vacation of a conviction. See United States v. Mendoza, 118 F.3d 707, 708
(10th Cir. 1997). 2 In Mendoza, this court also rejected the argument that
resentencing a defendant in a § 2255 proceeding to a greater sentence violates due
process or results in double jeopardy. Id. at 710 (double jeopardy and due process
not violated when defendant originally sentenced to 87 months and, after vacation
of § 924(c) conviction, resentenced to 108 months). Such a defendant "does not
have a legitimate expectation of finality in a related, but unchallenged sentence."
Id.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
2
Mendoza is in accord with the majority of the other circuits that have addressed
the issue. See 118 F.3d at 709. See also United States v. Gordils, 117 F.3d 99, 102-04
(2d Cir. 1997); United States v. Mixon, 115 F.3d 900, 903 (11th Cir. 1997).
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