UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

TOWNSEND, DERRICK


98-3041a

D.C. Cir. 1999


*	*	*


Sentelle, Circuit Judge: Appellant Derrick Townsend was  convicted on
numerous drug- and gun-related counts in 1988,  including two counts
of using a firearm during a drug traf- ficking offense, 18 U.S.C. s
924(c). He received a sentence  which included a 450-month term of
imprisonment. After a  motion by the government under Fed. R. Crim. P.
35(b), the  sentencing court departed downward significantly,
resulting  in a total term of imprisonment of 240 months, of which 60 
months were allocated to each of two s 924(c) counts, and 120  months
were allocated to the other charges. Following the  Supreme Court's
decision in Bailey v. United States, 516 U.S.  137 (1995), the
government stipulated that Townsend's  s 924(c) convictions should be
vacated, and that he should be  resentenced on the remaining counts.
The district court  resentenced Townsend in 1998, again imposing a
total term of  imprisonment of 240 months. Townsend appeals from this 
resentencing, arguing that the court lacked authority to reim- pose
the same total term of imprisonment in light of the fact  that his
convictions on the s 924(c) counts were vacated, and  that doing so
violated the Double Jeopardy Clause of the  Fifth Amendment. We
conclude that because the total sen- tence Townsend originally
received was properly considered a  single "package," by challenging
his s 924(c) conviction,  Townsend reopened his entire sentence, and
that the sen- tence imposed on the remaining counts was lawful. Town-
send further argues that the 1998 resentencing did not com- ply with
Fed. R. Crim. P. 32 because he did not timely receive  the probation
office's memorandum and because he lacked  notice of the court's
sentencing theory, and that the court  erred in reimposing a fine
which appellant claims had been  previously vacated. We conclude that
the first and third  arguments are not properly before us, and that


I. Background


A 1988 indictment charged Derrick Townsend with conspir- acy to
distribute cocaine and cocaine base, 21 U.S.C. s 846; 


conspiracy to distribute marijuana, 21 U.S.C. s 846; conspir- acy to
carry and use firearms during a drug trafficking  offense, 18 U.S.C. s
371; possession with intent to distribute  cocaine base, 21 U.S.C. s
841(a); two counts of possession  with intent to distribute marijuana,
21 U.S.C. s 841(a); pos- session with intent to distribute cocaine, 21
U.S.C. s 841(a);  and two counts of using a firearm during a drug
trafficking  offense, 18 U.S.C. s 924(c). Townsend was convicted on
all  counts in 1988 and sentenced in 1989. He received concur- rent
sentences on the drug and conspiracy charges, the  longest of which
was 330 months. He also received two 60- month terms, consecutive to
the other counts and to each  other, on the s 924(c) charges, for a
total term of imprison- ment of 450 months. In addition, he received a
five-year  term of supervised release, and fines totaling $600,000. We
 affirmed both the conviction and the district court's denial of  a
new trial. United States v. Lafayette, No. 89-3023, 1990  WL 18648
(D.C. Cir. Feb. 22, 1990); United States v. Lafay- ette, 983 F.2d 1102
(D.C. Cir. 1993).


Before their arrest in this case, Townsend and codefendant  Lewis had
provided information to authorities in New York  about a drug
operation and related homicides. After their  convictions here,
Townsend and Lewis entered into agree- ments for cooperation and
testimony with the U.S. Attorney  for the Eastern District of New
York. The agreements  called for the U.S. Attorney to move to reduce
the sentences  previously imposed in this case, as permitted by Fed.
R.  Crim. P. 35(b). On January 24, 1990, the Government filed a 
motion for reduction of sentence. At a status hearing on  February 28,
1991, the district judge stated on the record  that he intended to
grant the government's motions to reduce  sentence. He further stated
that he intended to reduce  Lewis to the twenty-year range, and
Townsend to the twenty- five-year range, and that he needed to "work
out the formula"  to accomplish those reductions. He also noted, at
the urging  of counsel, that he would reconsider the amount of the


Finally, almost three years later, on January 10, 1994,  Townsend's
counsel filed a motion asking for a hearing on the 


sentence reduction. The district court held no hearing, but  on May 26,
1994 issued an "Order Modifying Sentence" for  both Townsend and
codefendant Lewis. The order provided  "that the judgment entered on
January 27, 1989, be and it is  hereby vacated." It went on to order
identical 240-month  sentences for Lewis and Townsend, consisting of
consecutive  terms of 60 months on each of the two s 924(c) counts;
and  concurrent sentences on the other counts, with the longest  being
120 months. The order, like the original order, also  provided for
five years supervised release. It did not men- tion any fines.
Although the order indicated that the at- tached statement of reasons
should be made part of the  record, no statement of reasons was ever
filed. Neither  party appealed the 1994 order. By order of October 23,
1995,  the court, citing confusion as to whether the originally-
imposed fines still applied after the 1994 order, ordered that  the
original fine was still operative. The 1995 order was  denominated
"Clarification of Order Modifying Sentence" and  was not appealed by


Meanwhile, in 1995, Townsend filed a motion pursuant to 28  U.S.C. s
2255, arguing, inter alia, that there was insufficient  evidence to
support his s 924(c) convictions. On December 6,  1995, the Supreme
Court issued its opinion in Bailey v.  United States, 516 U.S. 137
(1995), holding that conviction for  using a firearm under 18 U.S.C. s
924(c) requires proof of  active use of a firearm to facilitate the
underlying offense. In  light of Bailey, the U.S. Attorney and Federal
Defender filed  a joint motion stipulating that there was insufficient
evidence  to support Townsend's convictions on the two s 924(c)
counts.  The motion further stipulated that the appropriate relief was
 to vacate the s 924(c) convictions and resentence appellant on  the
remaining counts, with credit for the 113 months already  served. The
motion also noted that a defendant who earns  good-time credits must
serve 102 months of a 120-month  sentence.


On March 18, 1998, the Probation Office issued a ten-page  "Memorandum"
regarding Townsend's resentencing. The  Memorandum described the
sentencing history, including the  findings of the original
presentence report and the 1994 


downward departure. The Memorandum then presented a  revised
calculation for the remaining counts under the 1997  Guidelines,
incorporating a two-level enhancement for posses- sion of a weapon
under U.S.S.G. s 2D1.1(b)(1). This en- hancement had not been applied
in the original sentencing  proceeding, because the enhancement is
unavailable where  there is a s 924(c) conviction. See U.S.S.G. s
2K2.4 (back- ground). With this enhancement, the revised calculation
for  the remaining counts yielded an offense level of 40 (as  compared
to 38 in the original 1989 presentence report) and a  guideline
imprisonment range of 360 months to life. The  1994 downward
departure, although discussed in the sentenc- ing history, was not
incorporated in the calculations. On  March 27, 1998, defense counsel
filed a "Memorandum Re- garding Re-Sentencing." The Memorandum argued,
inter  alia, that because Townsend had completed the 120-month 
sentence originally allocated to the non-924(c) counts (taking  into
account good time credits), imposing an additional sen- tence on those


On March 30, 1998, the district court held a sentencing  hearing. The
government argued that the defendant had no  expectation that his
sentence would be only 120 months, that  vacating the s 924(c)
convictions "unravels the whole pack- age," and that "the Court is
well within its latitude in just  simply imposing the 240 months on
the remaining counts."  The court adopted this suggestion. The court
stated that the  intention in 1994 was to reduce the sentence to 240
months,  and the sentence was only structured as 120 on the s 924(c) 
charges and 120 on the other charges because there was a  required
60-month consecutive sentence on each of the  s 924(c) charges.
Accordingly, the court found no bar to  imposing the entire 240-month
sentence on the remaining  counts. The court also imposed five years
of supervised  release, and fines totaling $500,000. Townsend appeals
from  this 1998 resentencing order.


II. Townsend's Rule 32 Arguments


We first address Townsend's argument that his 1998 re- sentencing did
not comply with Fed. R. Crim. P. 32(b)(6). 


The rule provides that "[n]ot less than 35 days before the  sentencing
hearing--unless the defendant waives this mini- mum period--the
probation officer must furnish the presen- tence report to the
defendant, the defendant's counsel, and  the attorney for the
Government." Fed. R. Crim. P.  32(b)(6)(A). Townsend claims that the
requirements of Rule  32 were not satisfied in this case, and that we
must therefore  vacate the sentence imposed and remand for a new
resen- tencing proceeding. In appellant's view, the probation of-
fice's "Memorandum" regarding resentencing was for all in- tents and
purposes a presentence report, and Rule 32 was  therefore applicable.
Townsend argues that he did not him- self see a copy of the probation
office's resentencing memo- randum until the day of resentencing, and
that his attorney  did not receive the memorandum far enough in
advance to  satisfy the requirements of Rule 32. Indeed, the memoran-
dum was not made available until twelve days before the  sentencing


Without deciding whether Rule 32's time requirements  were applicable
to the memorandum at issue here, we con- clude that even if Townsend's
Rule 32 arguments would  otherwise have merit, those arguments have
been waived. In  contrast to Townsend's present objections that he did
not  have the time required by Rule 32 to peruse the probation 
office's memorandum, he made no objection on this ground at  the
sentencing hearing. Neither he nor his counsel informed  the court
that they had had insufficient time to review the  memorandum. In
fact, defense counsel had reviewed the  memorandum and had filed a
memorandum in response. By  participating in the resentencing hearing
without objection,  Townsend waived his right to raise Rule 32's time
require- ments on appeal. See United States v. Workman, 110 F.3d  915,
920 (2d Cir. 1997); United States v. Jones, 80 F.3d 436,  438 (10th
Cir. 1996); United States v. Knorr, 942 F.2d 1217,  1221 (7th Cir.
1991); United States v. Turner, 898 F.2d 705,  713-14 (9th Cir. 1990).
See also Fed. R. Crim. P. 32(b)(6)(A)  (explicitly making the
requirement that the presentence re- port be provided 35 days in
advance of the hearing inapplica- ble where "the defendant waives this


Appellant further argues that Rule 32 was violated because  the
possibility of reimposing the entire 240-month sentence  was
introduced for the first time at the sentencing hearing  itself.
Townsend claims that prior to that time the parties  anticipated that
the court would simply impose the sentence  originally allocated to
the remaining charges (120 months),  and that disagreement focused
only on the propriety of  imposing an additional two-year "gun bump"
under U.S.S.G.  s 2D1.1(b)(1). Thus, appellant urges, he had no notice
re- garding the theory of sentencing the court ultimately em- braced.
In appellant's view, such notice is required by the  Supreme Court's
decision in Burns v. United States, 501 U.S.  129 (1991), which held
that the then-in-force version of Rule  32 required that before a
district court could depart upward  on a ground not identified as a
ground for upward departure  either in the presentence report or in a
prehearing submis- sion by the government, the parties must be given
reasonable  notice that such a ruling was contemplated. See also 
U.S.S.G. s 6A1.2 n.1 (memorializing the holding of Burns).  The Court
reasoned that such notice was necessary to mean- ingfully satisfy Rule
32's requirement that counsel must have  the opportunity to comment on
matters relating to the appro- priate sentence. Fed. R. Crim. P.
32(c), formerly 32(a). The  Court concluded that it made "no sense to
impute to Con- gress an intent that a defendant have the right to
comment  on the appropriateness of a sua sponte departure but not the 
right to be notified that the court is contemplating such a  ruling."
Burns, 501 U.S. at 135-36 (emphasis in original).


Although Burns itself dealt with the need for notice re- garding
potential upward departures, Townsend notes that  some lower courts
have extended its reasoning to adjust- ments, see United States v.
Jackson, 32 F.3d 1101 (7th Cir.  1994); United States v. Brady, 928
F.2d 844 (9th Cir. 1991),  abrogated on other grounds, Nichols v.
United States, 511  U.S. 738 (1994); but see United States v. Canada,
960 F.2d  263 (1st Cir. 1992) (holding that Burns' notice requirements
 did not apply to adjustments, which are more predictable  than
departures); United States v. Willis, 997 F.2d 407 (8th  Cir. 1993)
(same), and he argues that Burns' reasoning 


certainly applies to the introduction of a "brand-new theory of 
sentencing" at the sentencing hearing. Appellant's Brief at  38.
Appellant analogizes this case to United States v. Zapat- ka, 44 F.3d
112 (2d Cir. 1994), in which the court concluded  that where the
district judge utilized a different underlying  Guideline than that
employed in the presentence report,  defendant was deprived of
adequate notice regarding the  possibility of an adjustment available
under the section em- ployed by the court that was not available under
the section  employed by the presentence report.


We need not determine the reach of Burns' notice require- ments, as we
are unpersuaded by Townsend's argument that  the method employed by
the district court was a "brand-new  theory of sentencing." The
calculations in the memorandum  from the probation office resulted in
a sentencing range of  360 months to life. The memorandum did not
indicate that  resentencing would be limited to consideration of the 
s 2D1.1(b)(1) enhancement, or that the full amount of the  original
downward departure would necessarily be applied.  Indeed, appellant
himself appears not to have taken reimposi- tion of the entire 1994
departure for granted-his "Memoran- dum Regarding Re-Sentencing"
contained a section entitled  "The Rule 35 Departure Based on Mr.
Townsend's Substan- tial Assistance To The Government's Prosecution of
Delroy  'Uzi' Edwards Should Remain In Effect." Given this, we are 
unsympathetic to Townsend's claim that in adopting the view  that the
original 240-month sentence could be imposed, the  district court and
prosecutor were employing a new sentenc- ing theory. Accordingly, we
reject Townsend's argument  that Burns might have any application


III. Townsend's Arguments Regarding the Fines


Appellant argues that it was impermissible for the court to  impose
$500,000 in fines in 1998 because no fines were  specified in the 1994
resentencing order and the 1995 order  "clarifying" that the original
fines were still in place was  improper. The court's treatment of
Townsend's fines was  admittedly somewhat irregular. At the original
sentencing 


proceedings in 1989, fines totaling $600,000 were imposed.  After the
government moved to reduce sentence, the court in  1991 noted that it
would also reconsider the amount of the  fines. In 1994, when the
court actually acted on the sentence  reduction in an "Order Modifying
Sentence," it made no  mention of fines. However, more than a year
later, the court  issued a "Clarification of Order Modifying
Sentence," citing  confusion regarding whether Townsend's original
fines were  still in force and indicating that they were.


Townsend argues that his fines were vacated by the 1994  order and
could not be resuscitated by the 1995 order.  Townsend cites the
language of the 1994 order, which provid- ed "that the judgment
entered on January 27, 1989, be and it  is hereby vacated." In
Townsend's view, after the 1994 order  issued, there were no fines in
place. Thus, he argues, it was  impermissible for the court to augment
Townsend's punish- ment the following year by "clarifying" that the
fines were in  effect, since such a "correction" of the 1994 order was
not  within the parameters established for correcting a sentence 
under Fed. R. Crim. P. 35. The government, in contrast,  argues that
the 1994 order was addressed only to modifying  the term of
imprisonment and should not be read as vacating  the portion of the
1989 order regarding fines. Since the  government views the original
fines as never having been  vacated, it treats the 1995 order as
making no change at all to  Townsend's sentence, but simply clarifying


We do not address the parties' differences as to the propri- ety of the
1995 "clarifying order," but instead conclude, as the  government
urges with no response from appellant, that this  issue is not
properly before us. To be sure, Townsend has  timely appealed from the
1998 order, which reimposed a  portion of the complained-of fines.
However, Townsend's  attack on the fines imposed in 1998 is based
entirely on  arguments regarding the impropriety of the 1995 order. If
 Townsend believed that the district court acted improperly in 
"clarifying" that the fines were still in effect in its 1995 order, 
he could have appealed that order within the time provided  under Fed.
R. App. P. 4. See Browder v. Director, Dep't of 


Corrections of Illinois, 434 U.S. 257, 264 (1978) (time limits of  Rule
4 are "mandatory and jurisdictional"). Having failed to  timely appeal
the 1995 order he now contests, Townsend may  not properly attack it
by appealing the 1998 order. Cf.  United States v. Barragan-Mendoza,
No. 97-30264, 1999 WL  221857 (9th Cir. Apr. 19, 1999) (reaching issue
of whether  modification of sentence by district court was within
court's  authority under Fed. R. Crim. P. 35, but only after first 
determining that appeal was timely). See also United States  v. Kress,
944 F.2d 155, 161 (3d Cir. 1991) (where defendant  failed to appeal
court's earlier order denying his Rule 35  motion regarding the
interest rate on restitution owed, he  cannot relitigate the issue on
appeal from denial of a later  motion); United States v. Mendes, 912
F.2d 434, 437-48 (10th  Cir. 1990) (where conviction and original
sentence not appeal- ed, defendant cannot appeal conviction by
appealing later  resentencing); United States v. June, 503 F.2d 442,
443-45  (8th Cir. 1974) (though appeal timely as to denial of motion
to  reduce sentence, the appeal amounted to untimely challenge  to
conviction itself); Yates v. United States, 308 F.2d 737, 738  (10th
Cir. 1962) (where conviction not appealed, defendant  may not later
challenge it as void and illegal in appeal from  order revoking


IV. Reimposition of the Full Term of Imprisonment


As noted above, Townsend's original term of imprisonment  totaled 450
months, consisting of 120 months on the two  s 924(c) counts and 330
months on the other counts. When  the court departed downward in 1994
in response to the  government's Rule 35(b) motion, the resulting term
of impris- onment totaled 240 months, of which 120 months were again 
allocated to the s 924(c) charges, and 120 months were  allocated to
the other counts. In 1998, after vacating the  s 924(c) convictions on
Bailey grounds, the court resentenced  Townsend on the other counts,
imposing a term of imprison- ment of 240 months, equivalent to his
total term prior to the  vacatur. Townsend argues that the court was
without au- thority to reimpose the full 240-month term of
imprisonment  in 1998, and that doing so violated the Double Jeopardy


Clause, which may bar an increase in a sentence if the  defendant had a
legitimate expectation of finality in the  previously-imposed
sentence. United States v. Fogel, 829  F.2d 77, 87 (D.C. Cir. 1987);
United States v. DiFrancesco,  449 U.S. 117, 139 (1980).


A. Review of the 1998 Term of Imprisonment


Before addressing the merits of Townsend's arguments, we  first
consider the government's claim that Townsend is simply  challenging
the amount of downward departure he received in  1998, which the
government argues is unreviewable under 18  U.S.C. s 3742. That
section provides in relevant part that a  defendant may appeal a
sentence if the sentence


(1) was imposed in violation of law;


(2) was imposed as a result of an incorrect application of  the
sentencing guidelines; or


(3) is greater than the sentence specified in the applica- ble
guideline range ...; or


(4) was imposed for an offense for which there is no  sentencing
guideline and is plainly unreasonable.


18 U.S.C. s 3742(a). In the government's view, because  Townsend's 1998
sentence of 240 months on the non-924(c)  counts represents a downward
departure from the 330  months originally imposed on those counts in
1989, Townsend  should have no right to complain that he is entitled
to retain  the more generous departure imposed on those counts in 
1994.


The government focuses on s 3742(a)(3), which provides  that a
defendant may seek review of upward departures, but  does not provide
for review of downward departures at the  defendant's behest.
Certainly it is correct that where a  defendant simply disagrees with
the district court's judgment  regarding the amount of downward
departure which is war- ranted, review is unavailable. See, e.g.,
United States v.  Hazel, 928 F.2d 420, 423 (D.C. Cir. 1991). However,
that is  not Townsend's argument. Townsend is not simply disagree- ing
with the district court's view of what departure was  proper, but is
arguing that the court lacked authority to 


reconsider the departure it granted on those counts in 1994,  and that
the sentence which resulted from so doing was in  violation of the
Double Jeopardy Clause. Where, as here, a  defendant claims that his
sentence "was imposed in violation  of law," the sentence is
reviewable under s 3742(a)(1). The  fact that the specific illegality
here claimed involves the  amount of downward departure he received
does not render  s 3742 (a)(1) inapplicable. Cf. United States v. La
Guardia,  902 F.2d 1010, 1012 (1st Cir. 1990). To conclude otherwise 
would insulate from review the extent of a downward depar- ture even
if the resulting sentence was plainly unlawful or the  amount of
departure was influenced by unlawful consider- ations. See United
States v. Burnett, 66 F.3d 137, 139 (7th  Cir. 1995). Therefore, we
conclude that this issue is properly  before us.


B. Resentencing after Bailey Vacatur


We now turn to the substance of Townsend's challenge to  the
reimposition of his full term of imprisonment after his  s 924(c)
convictions were vacated. This is not the first time  we have
encountered arguments regarding the proper scope  of resentencing
after Bailey vacatur, although this case does  raise specific issues
we have not previously addressed. In  United States v. Rhodes, 106
F.3d 429 (D.C. Cir. 1997)  ("Rhodes I"), we vacated a s 924(c)
conviction, and remanded  for possible resentencing on the remaining
counts, "taking  into account the provisions of s 2D1.1(b)(1)." Id. at
433. We  observed that because U.S.S.G. s 2D1.1(b)(1) and 18 U.S.C.  s
924(c) are mutually exclusive, the otherwise mandatory  enhancement
was unavailable so long as the s 924(c) convic- tion stood. But we
held that this did not entitle a defendant  to escape application of
the s 2D1.1(b)(1) enhancement be- cause of a s 924(c) conviction which
was later vacated. We  held that 28 U.S.C. s 2106, which provides that
an appellate  court may require "such further proceedings to be had as
 may be just under the circumstances," established statutory 
authority for this court to remand for resentencing on the  remaining
counts. Furthermore, we found no merit in appel- lant's arguments that
resentencing on his remaining charges  would violate the Double


Given the interdependence of a s 924(c) conviction and the  s 2D1.1
enhancement, we noted that appellant had no legiti- mate expectation
of finality in his original sentence on the  remaining drug charges,
and that by challenging his s 924(c)  charges, defendant brought his
remaining sentences into  question. Id. at 432 n.3.


We addressed similar questions in United States v. Morris,  116 F.3d
501 (D.C. Cir. 1997), where the s 924(c) vacatur  arose not on direct
appeal but, as here, in the s 2255 context.  There, the district court
had vacated appellants' convictions  under s 924(c), and then
increased the sentence on the  remaining terms by imposing the
two-level s 2D1.1 enhance- ment. This court affirmed, holding that s
2255 provided the  district court statutory authority for resentencing
on the  remaining counts. We held that s 2255's grant of power to  "
'correct the sentence as may appear appropriate' ... neces- sarily
includes the power to apply the s 2D1.1(b)(1) enhance- ment at the
same time as it removes the hitherto blocking  s 924(c) conviction."
Id. at 504. We also rejected defen- dants' double jeopardy and due
process arguments, noting as  in Rhodes I that because of the
"interdependence and mutual  exclusivity" of the s 924(c) conviction
and the s 2D1.1 en- hancement, there was no reasonable expectation of
finality of  the unchallenged sentences. Id. at 505.


C. The Sentencing Package Theory


Townsend seeks to distinguish Rhodes I and Morris on two  principal
grounds. First, he emphasizes that those cases  considered only the
propriety of imposing a s 2D1.1 enhance- ment, while the district
court's resentencing here was not so  limited. In particular, Townsend
argues that even if s 2255  provides authority for a court to
"correct" the remaining  sentence by imposing a s 2D1.1 enhancement,
as we held in  Morris, it does not provide authority for broader
resentenc- ing on the remaining counts. Second, Townsend makes much 
of the fact that taking into account good-time credits, he had,  by
the time of the 1998 resentencing, "fully served" the 120- month term
of imprisonment which had previously been  allocated to the non-924(c)
counts. In Townsend's view, the 


fact that that sentence was fully served makes any resentenc- ing, even
the s 2D1.1 enhancement approved in Rhodes I and  Morris, a violation
of the Double Jeopardy Clause.


Both of these arguments rest on the premise that the 120  months
allocated to the non-924(c) charges represent a free- standing
sentence distinct from the sentence on the s 924(c)  counts. In this
view, when the 120 months allocated to the  s 924(c) charges were
vacated, s 2255 required the court to  begin with the 120 months
previously allocated to the remain- ing counts, and to justify any
modification as a necessary  "correction" to that remaining term. In
effect, Townsend  argues that the court must treat the
previously-imposed  sentence as being composed of independent
subunits, each of  which survives the destruction of the others except
to the  extent that vacation of one component of the sentence ren-
ders a remaining component actually illegal.1 Similarly, his  argument
that his "sentence" was fully served assumes that  the portion of his
earlier sentence allocated to the remaining  counts remained an
independent fixed entity even while he  sought to have other counts


We disagree with Townsend's premise that the terms of  imprisonment
previously allocated to his non-924(c) counts  necessarily survived
intact his challenge to the s 924(c)  counts. As other circuits have
recognized, at least in some  instances, sentences on multiple counts
may comprise a "sen- tencing package," so that attacking the sentence
on some  counts via s 2255 reopens the sentence on the other counts as
 well. See United States v. Rodriguez, 112 F.3d 26 (1st Cir. 




__________

n 1 In support of his narrow view of what constitutes a permissible 
correction to a sentence, Townsend cites our decisions in United 
States v. Fogel, 829 F.2d 77 (D.C. Cir. 1987), and Tatum v. United 
States, 310 F.2d 854 (D.C. Cir. 1962). These cases are inapposite,  as
they do not involve situations in which a defendant has voluntari- ly
placed his sentence at issue by challenging it via s 2255. Indeed,  in
explaining why the sentence modification in Fogel was impermis- sible,
we explicitly noted that the modification was not predicated  by any
challenge to the sentence by the defendant, who unlike  Townsend had
"proceeded to serve the sentence as if it were final."  Fogel, 829
F.2d at 89.


1997); United States v. Mata, 133 F.3d 200 (2d Cir. 1998);  United
States v. Davis, 112 F.3d 118 (3rd Cir. 1997); United  States v.
Smith, 115 F.3d 241 (4th Cir. 1997); United States v.  Rodriguez, 114
F.3d 46, 47-48 (5th Cir. 1997); Pasquarille v.  United States, 130
F.3d 1220 (6th Cir. 1997); United States v.  Smith, 103 F.3d 531 (7th
Cir. 1996); Gardiner v. United  States, 114 F.3d 734 (8th Cir. 1997);
United States v.  McClain, 133 F.3d 1191 (9th Cir. 1998); United
States v.  Easterling, 157 F.3d 1220 (10th Cir. 1998); United States
v.  Watkins, 147 F.3d 1294 (11th Cir. 1998). The sentencing  package
doctrine recognizes that " 'when a defendant is found  guilty on a
multicount indictment, there is a strong likelihood  that the district
court will craft a disposition in which the  sentences on the various
counts form part of an overall  plan,' " and that if some counts are
vacated, " 'the judge  should be free to review the efficacy of what
remains in light  of the original plan.' " Davis, 112 F.3d at 122
(quoting  United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 
1989)). "Under the sentencing package concept, when a  defendant
raises a sentencing issue he attacks the bottom  line." Smith, 103


Sentences which include s 924(c) counts are particularly  well suited
to be treated as a package. The counts in such  sentences are
inherently interdependent, since "without the  drug conviction, there
can be no s 924(c)(1) conviction."  Easterling, 157 F.3d at 1223. In
addition, the fact that  s 924(c) carries a mandatory sentence may
influence the  sentence imposed on other counts. See Davis, 112 F.3d
at  123 (" '[W]here a sentencing judge imposed a multicount  sentence
aware that a mandatory consecutive sentence is to  be tacked on to it
and the mandatory sentence is later  stricken, the judge is entitled
to reconsider the sentence  imposed on the remaining counts.' ")
(quoting Gordils v.  United States, Nos. 89CR0395 & 95CIV8034, 1996 WL
 614139, at *7 (S.D.N.Y. 1996)).


Our decisions in Rhodes I and Morris implicitly acknowl- edged the
concept of a sentencing package, at least to a  degree, in that they
allowed modification of the sentence  previously imposed on counts
other than those specifically 


contested by the defendant. However, we focused there on  the mutual
exclusivity of s 924(c) and the s 2D1.1 enhance- ment, and did not
directly address the propriety of other  types of resentencing on the
remaining counts. Other cir- cuits have approved resentencing not
limited to application of  the two-level enhancement. For example, in
United States v.  Watkins, 147 F.3d 1294 (11th Cir. 1998), imposing a 
s 2D1.1(b)(1) enhancement at resentencing would have had  no effect on
the sentence because the defendant was a career  offender.
Nonetheless, the Eleventh Circuit approved the  district court's
recalculation of other aspects of the sentence,  including the
appropriate reduction for the defendant's sub- stantial assistance.
See id. at 1295-96. The court noted that  "the availability of the
U.S.S.G. s 2D1.1(b)(1) enhancement is  not necessary to the court's
jurisdiction to resentence on  unchallenged counts." Id. at 1297.
Similarly, the Seventh  Circuit approved the district court's
resentencing after  s 924(c) vacatur where the judge not only imposed
the  s 2D1.1 enhancement, but recalculated the sentence on the 
remaining counts based on a higher base offense level than  used in
the original sentence after concluding that there was  an error in the
original sentencing. Smith, 103 F.3d at 535.  Several courts
considering resentencing after s 924(c) vaca- tur have reopened the
sentences on the remaining counts and  required consideration of not
only changes which would in- crease the remaining sentence, but of the
prisoner's new  arguments for decreases in his sentence as well. See
Easter- ling, 157 F.3d at 1225 (on resentencing, district court re-
quired to consider whether defendant should receive three- level
downward departure for acceptance of responsibility  available under
current guidelines rather than two-level de- parture he originally
received); United States v. Core, 125  F.3d 74 (2d Cir. 1997) (holding
that resentencing should  consider all sentencing arguments and
remanding for court to  consider defendant's argument for downward
departure  based on post-conviction rehabilitation); Reyes v. United 
States, 944 F. Supp. 260 (S.D.N.Y. 1996) (resentencing is de  novo and
defendant may argue for downward departures).  Indeed, while we


enhancement when we remanded for resentencing in Rhodes  I, we later
held that the district court was also required to  consider on remand
defendant's request for a possible down- ward departure based on his
post-conviction rehabilitation.  United States v. Rhodes, 145 F.3d
1375 (D.C. Cir. 1998)  ("Rhodes II").


D. Treatment of the 1994 Sentence as a Package


In conducting its 1998 resentencing, the district court  explicitly
relied on a "sentencing package" theory, noting that  the intention in
allowing the downward departure in 1994 was  to achieve an overall
sentence of 240 months rather than  particular sentences on the
component counts. The record  supports the proposition that this was
the court's original  intention. In 1991, the judge, in response to
the govern- ment's motion for reduction of sentence, noted on the
record  that he intended to grant the motion, but needed to "work out 
the formula" to accomplish the overall term of imprisonment  desired.
The fact that the court in 1991 expressed an inten- tion of figuring
out a formula yielding 25 years for Townsend,  but ultimately chose a
formula yielding 20 years, does not  affect our analysis. The
interpendence of the departures  granted on the various counts is
further illustrated by the  court's observation in 1991 that "there
were nine counts, and  they all have to be coordinated." Although this
remark was  made in discussing the sentence of codefendant Lewis, not 
Townsend himself, the remark is equally applicable to Town- send's
sentence, since he and Lewis originally received identi- cal sentences


In addition, a sentencing package theory is particularly  appropriate
given that the 1994 sentence was the result of a  downward departure.
Indeed, the fact that the existing  sentence was the result of a
downward departure makes it  difficult to ascertain what exactly the
district court would  have done had it wanted only to "correct" the
sentence by  imposing a s 2D1.1(b)(1) adjustment. Townsend argues that
 the proper way of imposing a s 2D1.1(b)(1) adjustment on the 
remaining counts would be to "reason backward," finding an  offense
level which corresponds to the 120-month sentence 


allocated to the non-924(c) counts after the 1994 departure,  and then
to apply a two-level adjustment. Unfortunately,  this backward
reasoning does not lead to a unique offense  level, since a 120-month
sentence falls within the sentencing  range for more than one offense
level. Below, appellant  indicated that "the offense level that most
closely approxi- mates" the 120 months imposed on his remaining counts
in  1994 is level 30, because that level provides for a sentence of 
121 months at the bottom of the range. On appeal, he argues  that the
proper level is 28, which leads to a range of 97-121  months, or 29,
with a range of 108-135 months. Neither the  probation office's
Memorandum nor the court adopted this  backward-reasoning strategy,
but instead recalculated Town- send's offense level under the
Guidelines, leaving any down- ward departure to be imposed on the
resulting sentence.  This method resulted in an offense level of 38,
or 40 if the  s 2D1.1 enhancement were applied.


We are not persuaded that resentencing after a downward  departure must
proceed by the backward reasoning appellant  would require. Indeed, we
agree with the Eleventh Circuit  that "where the district court is
sentencing outside the guide- lines range, it is particularly
important that the district court  have discretion to reevaluate the
entire sentencing package."  Watkins, 147 F.3d at 1297. The amount of
downward depar- ture allowed by a sentencing judge is inevitably
affected by  the total sentence imposed, and the departure allowed on
a  given count will naturally depend on the departure allowed on 
other counts. Requiring a sentencing judge to retain the full 
downward departure originally allowed on a given count even  when
convictions on other counts are vacated could well make  judges
hesitant to give generous downward departures in the  first instance.
This is particularly the case here, where the  judge apparently
believed that all of the downward departure  had to be applied to the
non-924(c) counts to maintain the  five-year statutory minimum on each
of the s 924(c) counts.  Appellant argues that in fact the judge could
have departed  below the statutory minimum on the s 924(c) counts,
given  the government's Rule 35 motion. However, that would not 
change the fact that the departure actually imposed on the 


non-924(c) counts was chosen in light of the term imposed on  the s
924(c) counts.


E. Townsend's Constitutional Arguments


Our conclusion that the district court properly treated the  1994
sentence as a sentencing package necessarily under- mines Townsend's
argument that because his term of impris- onment on the remaining
counts was fully served, resentenc- ing on those counts violated the
Double Jeopardy Clause of  the Fifth Amendment. Citing Ex parte Lange,
85 U.S. (18  Wall.) 163 (1873), and In re Bradley, 318 U.S. 50 (1943),
 Townsend begins with the premise that a defendant who has  satisfied
the sentence imposed for an offense may not be  resentenced for that
offense. However, because the 1994  sentence was properly viewed as a
package, Townsend had  not satisfied his sentence on the remaining
counts in any  meaningful sense. His "sentences were, in essence, 'one
 unified term of imprisonment,' " Easterling, 157 F.3d at 1224 
(quoting Smith, 103 F.3d at 355). Thus we join the other  circuits
which have addressed this question in concluding that  even where the
term originally allocated to the remaining  counts of a package has
been served, a defendant can have no  legitimate expectation of
finality regarding the sentence pre- viously allocated to certain
counts while simultaneously chal- lenging his sentence on other counts
of the package. See  Smith, 115 F.3d at 246; United States v.
Benbrook, 119 F.3d  338, 340-41 (5th Cir. 1997); Pasquarille, 130 F.3d
at 1222;  Smith, 103 F.3d at 535; United States v. Alton, 120 F.3d
114,  115-16 (8th Cir. 1997); McClain, 133 F.3d at 1194; Easter- ling,


Townsend framed his arguments on appeal almost exclu- sively in terms
of the Double Jeopardy Clause, but to the 




__________

n 2 We note that even leaving the "package" concept aside, as of the 
time of his resentencing Townsend had not yet served the entire 
sentence he would have received with the gun bump alone. At oral 
argument, defendant conceded that even using his own guidelines 
calculation, as a result of the gun bump he still would be imprisoned 
until March 15, 1999--a month after oral argument, but a year after 
the resentencing at issue here.


extent that he relies on the Due Process Clause, such reliance  is also
unavailing. Because Townsend could not expect finali- ty of his
sentence on some counts even while he challenged  others, resentencing
was not fundamentally unfair. See Pas- quarille, 130 F.3d at 1223;
Woodhouse v. United States, 934  F. Supp. 1008 (C.D.Ill.1996), aff'd,
109 F.3d 347 (7th Cir.  1997). At oral argument, Townsend suggested a
due process  argument not raised below or meaningfully discussed in
his  briefs--that the increase in the sentence on his non-924(c) 
counts would give rise to a presumption of vindictiveness.  See North
Carolina v. Pearce, 395 U.S. 711 (1969). However,  even assuming
appellant has properly raised this argument,  given that the existing
sentence was properly viewed as a  package, the fact that the sentence
allocated to certain counts  increased gives rise to no presumption of
vindictiveness. For  sentences within a package, Pearce analysis is
conducted "in  the aggregate rather than count by count." United
States v.  Sullivan, 967 F.2d 370, 374 (10th Cir. 1992). As we noted
in  Morris, there is no indication of vindictiveness in resentenc- ing
a defendant to "exactly the sentence that the defendant  would have
received but for the erroneous application of  s 924(c)." Morris, 116
F.3d at 506. See also Mata, 133 F.3d  at 202.


We need not determine today the full range of cases in  which a
sentence on multiple counts may properly be treated  as a package. In
particular, we do not address whether such  treatment would be
appropriate where there was no indica- tion in the record at the time
of the earlier sentencing that a  package was intended, or where there
were indications to the  contrary. Nor do we address whether a
sentence could  properly be treated as a package where the distinct
counts  involved conduct more tenuously related than the drug and 
weapons charges at issue here. Cf. Rodriguez, 112 F.3d at  30-31
(approving sentencing package concept for situations  where Guidelines
"contemplate an interdependent relation- ship"). We hold only that in
this case, where the vacated and  remaining counts are closely related
and the judge indicated  an intention to arrive at a "formula" for


sentence desired after the downward departure in 1994, treat- ing the
sentence as a unitary package is appropriate.


For the reasons stated above, the decision of the district  court is


Affirmed.