August 5th, 1998

Precedential

96-7105

                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 96-7105

                                    Non-Argument Calendar.

                       UNITED STATES of America, Plaintiff-Appellee,

                                                 v.

               Johnnie D. OLIVER, Edna Palmer Oliver, Defendants-Appellants.

                                          Aug. 5, 1998.

Appeals from the United States District Court for the Middle District of Alabama. (No. CR-91-73-
N(01), W. Harold Albritton, Judge.

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.

        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

, 

106 S. Ct. 806

, 

88 L. Ed. 2d 781

(1986), is not in opposition to its decision in Mixon.

Rosen was a preguidelines 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.


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AFFIRMED.




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