United States v. Butler ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4604
MARC L. BUTLER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-89-356-A)
Submitted: July 18, 1997
Decided: September 17, 1997
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Laura H. Parsky, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
In 1989, Marc L. Butler was convicted of various drug offenses
and one count of using or carrying a firearm during and in relation
thereto. In early 1996, following the Supreme Court's decision in
Bailey v. United States, 116 S.Ct. 501 (1995), Butler filed a motion
pursuant to 28 U.S.C. § 2255 seeking to have his firearm conviction
set aside. The district court granted the motion, but resentenced Butler
on the drug convictions. The court increased Butler's sentence from
78 to 97 months, notwithstanding that Butler had not sought correc-
tion of his drug sentences and that he had already served 78 months
before he filed his § 2255 motion.
On appeal, Butler contends (1) that the court was without jurisdic-
tion to correct those portions of his sentence that he did not challenge
in his motion; (2) that the Double Jeopardy Clause of the Fifth
Amendment precluded resentencing him once his prior drug sentence
was fully served; and (3) that the resentencing so upset his settled
expectations as to deprive him of due process.
We have recently resolved all three of these issues, and all
adversely to Butler's contentions. United States v. Smith, 115 F.3d
241 (4th Cir. 1997) (resentencing after drug sentence fully served nei-
ther constitutes double jeopardy nor offends due process);* United
States v. Hillary, 106 F.3d 1170 (4th Cir. 1997) (in granting a § 2255
motion, court has jurisdiction to resentence "as may appear appropri-
ate"). Consequently, we affirm the judgment of the district court. We
dispense with oral argument because the dispositive issues have
recently been decided authoritatively.
AFFIRMED
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*We recognize that there is arguably tension between Smith and
United States v. Silvers, 90 F.3d 95 (4th Cir. 1996), on the double jeop-
ardy issue. However, because Smith recognized the apparent conflict and
distinguished Silvers, see 115 F.3d at 245-247, we are bound as a panel
of the court by its holding.
2