Summary
vacating conviction under Section 924(c) in light of Bailey and remanding for re-sentencing to allow Government to seek enhancement under U.S.S.G. 2D1.1
Summary of this case from United States v. CatlettOpinion
No. 93-3064
Filed March 4, 1996
Appeal from the United States District Court for the District of Columbia.
(No. 92cr00365-02).
Before WALD, SILBERMAN and TATEL, Circuit Judges.
ORDER
In an opinion filed May 5, 1995, we affirmed Fennell's conviction under 18 U.S.C. § 924(c). After he petitioned for rehearing we deferred our decision pending the Supreme Court's disposition of Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In light of Bailey, we granted the petition and requested further briefing.
The Government agrees that Bailey requires reversal of Fennell's section 924(c) resentencing on his drug conviction, arguing that without the section 924(c) conviction, he should receive a 2-level upward adjustment under U.S.S.G. § 2D1.1(b)(1). Fennell argues that the Government has waived its right to resentencing by not filing a "conditional cross-appeal" — that is, a timely appeal asserting that if the court were to reverse the section 924(c) conviction, the court should remand for resentencing on the drug count. We disagree. Requiring the Government to file a preemptive cross-appeal in this sort of case "would burden appellees (and courts) with no appreciable benefit to appellate practice." United States v. Bohn, 959 F.2d 389, 394 (2d Cir. 1992). Accordingly, it is hereby
ORDERED that appellant's conviction under 18 U.S.C. § 924(c) be reversed; and it is further
ORDERED that this case be remanded to the district court for resentencing.