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May 15, 1997

ROBERT G. RUTZ, Defendant.

The opinion of the court was delivered by: LYNCH

 I. Introduction

 The Court must decide whether, pursuant to federal habeas corpus jurisdiction, it may vacate an improper conviction and re-sentence a defendant to include an enhancement to the offense level previously unavailable by effect of the now-vacated count. The answer, in this case, is as plain as it appears. Section 2255 of Title 28, the federal habeas statute, confers authority for the Court to vacate defendant's gun conviction and re-sentences him to include a two-point guideline enhancement for the presence of a firearm during a drug offense.

 II. Facts

 In 1990, the grand jury returned a three-count indictment charging defendant Robert Rutz with possession of cocaine with the intent to distribute and conspiracy to distribute cocaine in violation of Title 21, sections 841(a)(1) and 846, respectively. The third count charged the use of a firearm in connection with the drug crime in violation of 18 U.S.C. § 924(c). Less than a year later, a jury convicted defendant on all counts.

 The Court, pursuant to the United States Sentencing Guidelines, sentenced Mr. Rutz to 123 months of imprisonment. The Court found that the appropriate offense level for the first two counts was 25 and Mr. Rutz had a Category Two criminal history. The applicable range for the first and second count, therefore, was 63-78 months. The Court sentenced Mr. Rutz to 63 months. The Court, pursuant to statute, added 60 months to the Guideline calculation for the gun count. If the government had not charged the gun count, the Court would have had to increase the term of incarceration for the first two counts by approximately 30 months or two offense levels -- to account for the presence of a gun during the drug offenses. See U.S.S.G. 2D1.1 (1990). The Guidelines, however, required that the Court forego the gun enhancement and impose an additional and distinct 60 months of incarceration for the § 924(c) conviction. See U.S.S.G. § 2K2.4.

 The Ninth Circuit affirmed the conviction and sentence in an unpublished memorandum.

 Subsequently, the U.S. Supreme Court held that a conviction for a § 924(c) violation is appropriate only if the government establishes that the defendant "actively employed" a firearm during a drug crime. Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501, 506 (1995). Rutz accordingly asked this Court to vacate his conviction on the gun charge because the government failed to establish this fact at his trial.

 The parties eventually agreed that defendant's § 924(c) conviction should be vacated. The government argued, though, that the Court should re-sentence Mr. Rutz. The parties then stipulated that the appropriate remedy was to vacate the gun conviction effectively reducing the sentence by 60 months. The Court was asked then to re-calculate the sentence by adding two points to the offense level because of the presence of the gun during the drug offense. The Guidelines then would authorize a sentence between 78 and 97 months. The parties agreed that 97 months would be appropriate. On the eve of the hearing to resolve the § 2255 action, however, the government noted that recent Ninth Circuit authority may prevent implementation of the agreed resolution. The Court accepts the parties' agreement and, because it finds the holding of United States v. Handa, 110 F.3d 42 (9th Cir. 1997) inapposite, re-sentences defendant.

 III. Legal Analysis

 The Court's analysis begins with the statute authorizing collateral review of federal convictions and sentences. As stated in § 2255:

If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law . . ., the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

 (Emphasis added.) In so stating, Congress unequivocally has granted district judges authority to vacate a conviction and resentence a prisoner in light of the new circumstances. Any view to the contrary is plainly wrong.

 The Fourth Circuit recently held that a district court has authority to vacate one or more counts of a multi-count conviction and re-sentence the prisoner in light of the circumstances that prevail after vacatur. In United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997), a jury convicted the defendant of a drug crime and the use of a gun during the drug offense. The court sentenced the defendant to 78 months on the drug charge and a consecutive 60 months for the gun count. Id.. at 1170. Following Bailey and pursuant to § 2255, the district court vacated the gun conviction because the government had not proven that the defendant actively used the gun during the ...

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