United States of America v. Calvin Cornelius Edwards

LOKEN, Circuit Judge.

A jury convicted Calvin Edwards of various drug and money laundering offenses, and two counts of violating 18 U.S.C. § 924 (c) for using a firearm in relation to a drug trafficking offense. He received a sentence of 350 months for the drug and money-laundering offenses, and consecutive sentences of 60 months and 240 months for the two § 924(c) offenses, for a total sentence of 650 months. Edwards appealed, and we affirmed.

See United States v. Mabry, 3 F.3d 244, 249-50 (8th Cir.1993), cert. denied sub nom. Edwards v. United States, 511 U.S. 1020 , 114 S.Ct. 1403 , 128 L.Ed.2d 75 (1994). Following the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 , 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995), Edwards filed a petition for relief under 28 U.S.C. § 2255 . The district court 1

vacated his § 924(c) convictions but on resentencing assessed a two-level increase in his total offense level for possession of a firearm, giving him a total offense level of 43.

See U.S.S.G. § 2Dl.l(b)(l). The district court denied Edwards a downward departure and sentenced him to life in prison, the mandatory sentence for a base offense level of 43. Edwards appeals that sentence, and we affirm.

Edwards argues that the district court erred in denying him a downward departure under U.S.S.G. § 5K2.0 because it is an anomalous situation, obviously not contemplated by the Guidelines, when the vacating of two § 924(c) convictions results in the imposition of a longer overall sentence. However, a sentencing court’s refusal to depart from the Guidelines is unreviewable as long as the court was aware of its authority to depart.

See, e.g., United States v. Orozco-Rodriguez, 220 F.3d 940, 943 (8th Cir.2000). We have carefully reviewed the transcript of the resentencing hearing and conclude the court was aware of its authority to depart and decided that *993 Edwards’s case was not suitable for a downward departure.

Edwards further argues that his increased sentence at resentencing deprived him of due process because there is a “reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.”

Alabama v. Smith, 490 U.S. 794, 799 , 109 S.Ct. 2201 , 104 L.Ed.2d 865 (1989), construing North Carolina v. Pearce, 395 U.S. 711, 726 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). We disagree. The resentencing court assessed a § 2D1.1 two-level enhancement, an assessment we have specifically upheld when a § 924(c) conviction is vacated and that conviction was part of a multi-count sentencing package.

See Gardiner v. United States, 114 F.3d 734 (8th Cir.), cert. denied sub nom. Gutierrez-Silva v. United States, 522 U.S. 923 , 118 S.Ct. 318 , 139 L.Ed.2d 246 (1997). The enhancement resulted in a mandatory life sentence under the Guidelines, the same sentence Edwards would have initially received had he been acquitted of the two § 924(c) counts and received the same § 2D1.1 enhancement. “[T]here is no indication of vindictiveness in resentencing a defendant to exactly the sentence that the defendant would have received but for the erroneous application of § 924(c).”

United States v. Townsend, 178 F.3d 558, 570 (D.C.Cir.1999) (quotation omitted).

Finally, Edwards argues that the resentencing court erred in refusing to consider his post-sentencing conduct as a basis for either a downward departure, see U.S.S.G. § 5K2.0, or an adjustment for acceptance of responsibility, see U.S.S.G. § 3E1.1. We have previously rejected that contention. “Rehabilitation that takes place behind the prison walls after the original sentencing, however, is not relevant [at resentencing], since the sentencing court obviously could not have considered it at the time of the original sentencing.”

United States v. Sims, 174 F.3d 911, 913 (8th Cir.1999);

accord United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000) (per curiam).

The judgment of the district court is affirmed.

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. The HONORABLE H. DEAN WHIPPLE, Chief Judge of the United States District Court for the Western District of Missouri.