or take any action appropriate to correct the error.
Section 2255, in other words, provides authority for the district court, upon motion by a defendant in custody, to recognize and correct its own error at any time. See United States v. Eatinger, supra. Rule 35 provides no such authority. To the extent relevant in this case, § 2255 and Rule 35 are not at all interchangeable. As a result, the Court applies § 2255 and corrects its error notwithstanding the Handa holding.
This is not to say that § 2255 grants district judges broad authority to restructure entirely a defendant's sentence following every vacatur. See United States v. Minor, 846 F.2d 1184, 1187 (9th Cir. 1988); cf. United States v. Smith, 103 F.3d 531 (7th Cir. 1996) (section 2255 allows district court to re-open all issues related to sentencing following vacatur of one count of multi-count conviction). Nor is it to say that a district judge may vacate a conviction on one count and increase the sentence on the remaining counts simply to carry out its original intent on sentencing. See, United States v. Minor, 846 F.2d at 1189 (and cases cited therein). When a defendant wins vacatur of one or more but not all counts of a multi-count conviction and the former sentence for the remaining counts was affected by the presence of the vacated count, the court may re-sentence the defendant as if the vacated count were never in the case. Neither inherent power nor the judge's original sentencing intent controls. Section 2255 controls and it plainly authorizes any appropriate remedy to correct an error.
Defendant Rutz, like federal prisoners across the land, has come before the court that sentenced him and asked it to correct an error made manifest by the Supreme Court's Bailey ruling. Section 2255 is the vehicle by which the defendant enters the court. Section 2255 is also the vehicle by which the court recognizes and corrects its error. If the Court were to recognize Handa for the proposition advocated by the government, it would have to turn a blind eye to the language of the statute and Eatinger -- binding authority on point and not refuted in Handa. The Court cannot countenance such a result. A statute's plain language must be read for what it says; a court is not free to put form over substance in a desperate effort to reconcile clearly distinguishable authority and statutory dictates plain by their terms.
The Court originally determined Mr. Rutz's sentence by figuring his criminal history category and the offense level under the Sentencing Guidelines. The Court determined that he had a Category Two criminal history. The Court also determined that the offense level for the two drug counts was 25. The Court would have added two points because the government established that Mr. Rutz possessed a gun in relation to the drug offenses. The two points were not added, however, because Mr. Rutz was convicted of the separate offense of carrying a gun during a drug offense. Consistent with the Guidelines, the Court instead left stand the offense level of 25 and added 60 months for the § 924(c) count.
The Court finds now that Mr. Rutz's conviction on the § 924(c) was illegal. Therefore, the Court vacates that conviction. Because vacatur has an impact on the proper sentence pursuant to the Guidelines, the Court re-sentences Mr. Rutz by taking the original offense level for the drug crimes, i.e., 25, and adding two points for possessing a gun during a drug offense. No other changes can be made because no other circumstances are affected by the vacatur. The resulting offense level is 26 and the Criminal History category remains Two. The Guideline range for Mr. Rutz is now 78 to 97 months.
The parties have stipulated that 97 months is an appropriate term in this case. The Court agrees and, therefore, orders that Mr. Rutz be re-sentenced to 97 months of incarceration.
For the above stated reasons, the Court hereby GRANTS defendant's motion to correct his sentence. The Court hereby VACATES defendant's conviction for carrying a gun in connection with a drug offense in violation of 18 U.S.C. § 924(c). The Court accordingly VACATES the sentence previously imposed. The Court RE-SENTENCES defendant to 97 months of incarceration on the remaining drug offenses. The Court further RE-IMPOSES a four-year term of supervised release under the same terms and conditions imposed in the original judgment.
IT IS SO ORDERED.
DATED: 5-15-97, 1997.
EUGENE F. LYNCH
United States District Judge