United States v. Oliver

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 96-7105 2/18/03 Non-Argument Calendar THOMAS K. KAHN ________________________ CLERK D.C. Docket No. CR-91-73-N(01)

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

JOHNNIE D. OLIVER, EDNA PALMER OLIVER, Defendants-Appellants.

__________________________ Appeals from the United States District Court for the Middle District of Alabama _________________________ (August 5, 1998)

Before GODBOLD, HILL and FAY, Senior Circuit Judges PER CURIAM:

Edna Oliver appeals her 164-month sentence for conspiracy to possess with intent to

distribute cocaine base, 21 U.S.C. §§ 841 and 846, possession of cocaine base with intent to

distribute, 21 U.S.C. § 841 (a)(1), and possession of a firearm by a convicted felon, 18 U.S.C.

§ 922 (g)(1). Johnnie Oliver appeals his 121-month sentence for conspiracy to possess with

intent to distribute cocaine base, 21 U.S.C. §§ 841 and 846, possession of cocaine base with

intent to distribute, 21 U.S.C. § 841 (a)(1), and distribution of cocaine base, 21 U.S.C.

§ 841 (a)(1).

The Olivers had successfully argued in their motions to vacate, 28 U.S.C. § 2255 , that

their convictions under 18 U.S.C. § 924 (c) were invalid in light of the Supreme Court’s

decision in Bailey v. United States, 516 U.S. 137, 142-43 , 116 S.Ct. 501, 505 , 133 L.Ed.2d

472 (1995). The district court ordered that the Olivers be resentenced in order to determine

whether their sentences should be enhanced under U.S.S.G. § 2D1.1(b)(1), which provides

a two-level enhancement for possession of a firearm during the commission of a drug

offense. At sentencing, the district court applied the § 2D1.1(b)(1) enhancements to the

Olivers’ offense levels. On appeal, the Olivers argue that the district court lacked jurisdiction

to resentence them.

We review de novo questions concerning the jurisdiction of the district court. See

e.g., United States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992).

Upon review of the relevant caselaw, and consideration of the parties’ briefs, we find

no reversible error.

2 Appellants’ arguments are foreclosed by this Court’s holding in United States v.

Mixon, 115 F.3d 900 (11th Cir. 1997). In Mixon, 115 F.3d at 901-02 , as here, the defendant

received a longer guideline sentence at resentencing, after his firearm conviction was vacated

pursuant to Bailey. This Court held that, “based on the broad language of § 2255 and the

interdependence of the multiple counts for sentencing purposes,“ a district court had

jurisdiction to recalculate a defendant’s entire sentence and that such resentencing did not

defeat the defendant’s double jeopardy rights nor expectations of finality. Mixon, 115 F.3d

at 903 .

This Court’s decision in United States v. Rosen, 764 F.2d 763 (11th Cir. 1985), cert.

denied, 474 U.S. 1061 (1986), is not in opposition to its decision in Mixon. Rosen was a pre-

guidelines case and the language cited by the Olivers was dicta. See United States v. White, 980 F.2d 1400 , 1401 n.2 (11th Cir. 1993)(rejecting otherwise precedential authority because

the issue was considered in dicta in a pre-guidelines case); see also Rosen, 764 F.2d at 763 -

66. Because it was a pre-guidelines case, the Rosen Court could not have considered the

unique relationship between 18 U.S.C. § 924 (c) and U.S.S.G. § 2D1.1(b)(1). Because the

district court had jurisdiction to resentence the Olivers on their unchallenged counts

following their successful collateral attacks on their convictions under 18 U.S.C. § 924 (c),

we affirm.

AFFIRMED.

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