Billy Ralph Cooper v. United States ( 1997 )


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  •                          United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 96-3133
    ___________
    Billy Ralph Cooper,                    *
    *
    Appellee,                  *
    *    Appeal from the United States
    v.                               *    District Court for the
    *    District of Minnesota.
    United States of America,              *
    *
    Appellant.                 *
    ___________
    Nos. 96-3134/3344
    ___________
    Larry Roberson,                        *
    *
    Appellee/Cross-Appellant, *
    * Appeals from the United States
    v.                               * District Court for the
    * District of Minnesota.
    United States of America,              *
    *
    Appellant/Cross-Appellee. *
    ___________
    Submitted: October 22, 1997
    Filed: November 25, 1997
    ___________
    Before BEAM and FLOYD R. GIBSON, Circuit Judges, and WEBB,1 Chief District
    Judge.
    ___________
    BEAM, Circuit Judge.
    In these consolidated 28 U.S.C. § 2255 petitions, prisoners Billy Ralph Cooper
    and Larry Roberson sought to vacate their convictions and sentences under 18 U.S.C.
    § 924(c)(1), in light of the Supreme Court's decision in Bailey v. United States, 116 S.
    Ct. 501 (1995). The district court vacated the 924(c)(1) convictions, but denied the
    government's request for resentencing on the underlying drug charges with application
    of the two-level sentencing enhancement for possession of a firearm prescribed by the
    Sentencing Guidelines. See U.S. Sentencing Guidelines Manual (U.S.S.G.) §
    2D1.1(b)(1). The government appeals the denial of its resentencing motion. Roberson
    also filed a cross-appeal. We affirm in part, and remand to the district court for
    reconsideration in light of United States v. Harrison, 
    113 F.3d 135
    (8th Cir. 1997), and
    Gardiner v. United States, 
    114 F.3d 734
    (8th Cir. 1997), cert. denied sub nom.,
    Gutierrez-Silva v. United States, 
    66 U.S.L.W. 3282
    (U.S. Oct. 14, 1997) (No. 97-
    5834).
    I.    BACKGROUND
    Petitioners Cooper and Roberson were convicted on various drug possession and
    conspiracy charges and sentenced to 121 and 235 months imprisonment, respectively.
    Both received an additional sixty-month sentence for using a firearm during a drug
    trafficking crime in violation of 18 U.S.C. § 924(c)(1). The Sentencing Guidelines
    1
    The Honorable Rodney Webb, Chief Judge, United States District Court for the
    District of North Dakota, sitting by designation.
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    provide that a drug sentence shall be enhanced by two levels if a dangerous weapon
    was possessed. See U.S.S.G. § 2D1.1(b)(1). At the original sentencings in 1990,
    petitioners' sentences were not affected by this provision because the Guidelines
    prohibit the enhancement when a defendant is also convicted of the gun offense defined
    in section 924(c)(1). See U.S.S.G. § 2K2.4 comment. (n.2).
    Section 924(c)(1) makes it unlawful to "use[] or carr[y] a firearm" in relation to
    a drug offense. At the time petitioners were convicted, this court maintained that mere
    evidence of proximity of the firearm to drugs or drug proceeds was sufficient to support
    a conviction under the statute. See, e.g., United States v. LaGuardia, 
    774 F.2d 317
    ,
    321 (8th Cir. 1985); United States v. Matra, 
    841 F.2d 837
    , 843 (8th Cir. 1988). In
    1995, while Cooper and Roberson were serving their sentences for the drug charges,
    the Supreme Court held that the government must show active employment of the
    firearm in order to prove "use" within the meaning of 924(c)(1). See 
    Bailey, 116 S. Ct. at 509
    . Thereafter, Cooper and Roberson filed actions under 28 U.S.C. § 2255 seeking
    to vacate their 924(c)(1) convictions. The United States conceded in the district court
    that the 924(c)(1) convictions should be vacated pursuant to Bailey, but requested
    resentencing on the underlying drug convictions, in order to apply the two-level
    enhancement set out in section 2D1.1(b)(1). With respect to both petitioners, the
    district court granted the motion to vacate the 924(c)(1) conviction, but denied the
    government's motion for resentencing.
    II.    DISCUSSION
    At the time of the district court's decision, the law regarding the court's authority
    to resentence on the drug convictions was unclear. Since then, 
    Harrison, 113 F.3d at 138
    , and 
    Gardiner, 114 F.3d at 735
    , have held that "in an action under 28 U.S.C. §
    2255, a district court has authority to resentence a prisoner on a drug trafficking
    conviction after vacating a related conviction for using a firearm in relation to a drug
    offense in violation of 18 U.S.C. § 924(c)." 
    Gardiner, 114 F.3d at 735
    . This is
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    controlling precedent on the question whether the district court could have enhanced
    the drug sentences of Cooper and Roberson pursuant to the government's motion.
    Cooper and Roberson urge us to affirm the decision of the district court
    notwithstanding Harrison and Gardiner. They argue that the court denied the
    government's enhancement motion on the merits, not on grounds of lack of authority.
    After carefully reviewing the transcript of the district court proceedings, we cannot
    agree that the court's decision was based solely on the merits of the government's
    motion. The parties argued extensively regarding the court's authority to reopen the
    unattacked drug sentences. See Tr. at 4-8. At one point, the government requested a
    stay of the district court's order pending resolution of the authority question by this
    court. See Tr. at 18. Counsel for Roberson informed the district court that "two or
    three cases [are] already docketed in the circuit on [the authority] issue, so it's going
    to get decided relatively soon." Tr. at 20. In addition, the court expressed an
    understanding that the finality of the order issued with respect to Cooper was subject
    to the government's decision to appeal and to the outcome of the authority question.
    See Tr. at 23. We are convinced that both the parties and the court considered the
    Harrison/Gardiner authority issue to be a determining factor.
    We do not dispute that the district court questioned the propriety of the gun
    enhancement for some or all of the defendants in this case. However, Harrison and
    Gardiner now give an unequivocal answer to the district court's concern over its
    authority to resentence. Accordingly, we remand these cases to the district court for
    reconsideration in light of Harrison and Gardiner.
    We have reviewed Roberson's other arguments on appeal, including his claim of
    ineffective assistance of counsel, and we conclude that they are without merit. We
    therefore affirm the district court's denial of the motion to vacate Roberson's drug
    sentences.
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    III.   CONCLUSION
    For the foregoing reasons, we affirm in part, and remand to the district court for
    reconsideration.
    A true copy.
    ATTEST:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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