110 F3d 61 United States v. Hines

110 F.3d 61

UNITED STATES of America, Plaintiff-Appellant,
v.
Nelson HINES; Shawn Fenner, Defendants-Appellees.

No. 96-7465.

United States Court of Appeals, Fourth Circuit.

Submitted March 27, 1997
Decided April 8, 1997

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Lynne A. Battaglia, United States Attorney, Bonnie S. Greenberg, Assistant United States Attorney, Baltimore, Maryland, for Appellant. James K. Bredar, Federal Public Defender, Denise C. Barrett, Assistant Federal Public Defender, Baltimore, Maryland; Barbara Gold, Baltimore, Maryland, for Appellees.

Before RUSSELL, LUTTIG, and MICHAEL, Circuit Judges.

OPINION

PER CURIAM:


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1

The United States appeals two orders of the district court denying its requests to resentence Nelson Hines and Shawn Fenner on their surviving drug convictions after their convictions under 18 U.S.C. § 924(c) (1994) were vacated in light of Bailey v. United States, --- U.S. ----, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos.94-7449/7492). The government conceded that the § 924(c) convictions should be vacated but requested resentencing in each case so that the district court might consider a two-level enhancement for possession of a weapon in connection with the drug offenses. See United States Sentencing Commission, Guidelines Manual § 2D1.1 (Nov.1995). The district court held that it lacked jurisdiction under 28 U.S.C. § 2255 (1994) to resentence Hines and Fenner.

2

We recently considered the issue raised here and held that the district court has jurisdiction to resolve any issue which was not litigated and resolved at the original sentencing when the failure to litigate was directly caused by the error which is the subject of the § 2255 petition. See United States v. Hillary, --- F.3d ----, No. 96-7463, 1997 WL 61398 (4th Cir. Feb. 14, 1997).

3

The judgment of the district court is therefore vacated, and the case is remanded with instructions to resentence Hines and Fenner. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED