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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-10539
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL RAMIREZ HERNANDEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________
June 18, 1997
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:
Miguel Ramirez Hernandez appeals from his resentence by the
district court after vacatur of the count of his convictions for
using and carrying a firearm in connection with a drug transaction.
Hernandez argues that the district court had no authority, after
vacating the invalid part of his sentence, to increase the
remaining valid portion of the sentence.
I
Hernandez was found guilty of conspiracy to distribute and to
possess with the intent to distribute cocaine, possession with the
intent to distribute cocaine, aiding and abetting the distribution
of cocaine, and using and carrying a firearm during and in relation
to the possession offense. The district court sentenced Hernandez

to 78 months imprisonment on each drug count, to run concurrently,
and to 60 months imprisonment on the firearms count, to run
consecutively to the drug sentences. This court affirmed the
convictions and the sentences. United States v. Mendez, No.
94-10108 (5th Cir. Mar. 29, 1995) (unpublished).
Hernandez later filed a petition under 28 U.S.C. § 2255 to
correct and reform the judgment of convictions. He contended that
his conviction for use of a gun in relation to a drug offense under
18 U.S.C. § 924(c)(1) was invalid under the Supreme Court's recent
decision of Bailey v. United States, 116 S.Ct. 501 (1995). The
government conceded that under Bailey the evidence was insufficient
to support the conviction under § 924(c). The conviction was
therefore vacated and Hernandez was scheduled for resentencing.
On resentence, the government argued that the district court
should consider the applicability of Sentencing Guideline
§ 2D1.1(b)(1)--the subsection that in drug offenses imposes a
two-level increase in the offense level if the defendant possessed
a firearm or other dangerous weapon. The supplemental pre-sentence
report ("PSR") also recommended consideration of this factor and
proposed the corresponding two-level increase. Hernandez objected,
asserting that the district court had no authority to increase the
sentence for the counts of conviction that had not been challenged
by the postconviction motion. Hernandez argued that the district
court could only eliminate the invalid five-year sentence and leave
the remainder of the original sentence intact.
2

At resentencing, Hernandez further argued that the court would
violate the Double Jeopardy Clause by increasing the sentences on
the drug convictions. The district court overruled Hernandez's
objections.
The applicable guideline range, with the inclusion of the
two-level increase, for the drug offenses was from 97 to 121 months
imprisonment. The district court sentenced Hernandez to 97-month
terms of imprisonment on each of the three counts, to be served
concurrently. Hernandez appeals, asserting that the district court
lacked the authority to increase the unchallenged drug offense
sentences and that the sentence violates the Double Jeopardy
Clause.
II
A
The Sentencing Guidelines require that a defendant's criminal
offense level be increased by two levels if he possessed a
dangerous weapon (including a firearm) during the commission of a
drug offense. See U.S.S.G. § 2D1.1(b)(1).1 This increase,
however, is not to be applied when a defendant is also sentenced
under § 924(c) for using or carrying the same firearm in connection
with the drug offense. See United States v. Washington, 44 F.3d
1Although § 2D1.1(b)(1) is not explicitly phrased in mandatory
terms, the commentary to this section supports mandatory imposition
of the increase, noting that "[t]he adjustment should be applied if
the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense." U.S.S.G. § 2D1.1(b)(1),
comment n.3 (emphasis added).
3

1271, 1280 (5th Cir. 1995). The question before us is whether the
district court, on resentence after vacatur of the § 924(c)
conviction, may impose the two-level increase provided for in
§ 2D1.1(b)(1).
We recently addressed this same question in United States v.
Rodriguez, No. 96-30878, slip op. 3384 (5th Cir. May 20, 1997).
Under Rodriguez, a district court may properly consider the
imposition of the two-level increase under § 2D1.1(b)(1) on
resentence after vacatur of a § 924(c) conviction because of
Bailey. Id.
The facts in Rodriguez are essentially identical to the facts
before us today. Rodriguez pled guilty to two drug offenses and
was convicted of two firearm counts under § 924(c). After Bailey,
Rodriguez petitioned for relief from his firearm convictions. The
district court granted the relief, but on resentence imposed the
two-level increase under § 2D1.1(b)(1) that had not been applied at
the original sentencing phase because of the § 924(c) convictions.
The Rodriguez panel noted that the conduct punished by both §
924(c) and § 2D1.1(b)(1) was the use of a firearm during a drug
offense. Id. at 3385. The panel further noted that under the
sentencing guidelines the conduct could not be punished under both
sections and concluded that, after the sentences under § 924(c)
were vacated, the district court on resentence properly considered
the increased offense level under § 2D1.1(b)(1). Id. at 3385-86.
4

The Rodriguez Court also determined that the application of
§ 2D1.1(b)(1) on resentence does not violate the Double Jeopardy
Clause because of the defendant's lack of "a legitimate
`expectation of finality in [his] original sentence.'" Id. at 3386
(quoting United States v. DiFrancesco, 101 S.Ct. 426, 438 (1980)).
We therefore hold that, in the light of the decision in
Rodriguez, the district court did not err by increasing Hernandez's
sentences on the drug counts after vacatur of his conviction under
§ 924(c).
B
We add only that our holding today is not in conflict with
this court's en banc decision in United States v. Henry. 709 F.2d
298 (1983). A careful reading of Henry reveals that the opinion
for the majority carried the majority only because of two special
concurrences filed in the case.2 Both special concurrences noted
that the sentences involved in Henry were separable and did not
present a case of "intertwined illegality." Id. at 317 (Reavley,
J., specially concurring), 318 (Jolly, J., specially concurring).
This case presents just such a case of intertwined illegality
in sentencing: The sentences on each respective count are
interdependent. As we have noted earlier, the two-level increase
in his criminal offense level legally could not have been imposed
2The Henry decision consisted of seven judges voting to vacate
and remand, with two of those seven specially concurring, and six
judges dissenting.
5

on Hernandez at his initial sentencing because of his conviction
under § 924(c) for using or carrying the same firearm. On the
other hand, once the § 924(c) conviction is set aside, the failure
to add the two-level increase results in a sentence that is not
correctly calculated, notwithstanding the specific requirement of
the guideline. Therefore, without the instant modification of the
sentence, the sentence after vacatur of the § 924(c) conviction
would have been contrary to law.
This interrelationship between the convictions and the
sentences--created by the guidelines' requirement that the criminal
offense level be increased by two in the absence of a § 924(c)
conviction--is exactly the type situation contemplated as an
exception to the majority holding in Henry; therefore, there is no
conflict between our holding and the Henry majority. In short,
Henry does not control our decision today.

III
The decision of United States v. Rodriguez decides the issues
presented by this appeal. We are bound by the case law of our
circuit and therefore the sentence imposed by the district court is
A F F I R M E D.
ENDRECORD
6

REAVLEY, Circuit Judge, dissenting.
This holding is contrary to United States v. Henry, 709 F.2d
298 (5th Cir. 1983) as elaborated in United State v. Cataldo, 832
F.2d 869, 873 (5th Cir. 1987). This is not a case where both
sentences make the sentencing scheme illegal. There is one, and
only one, illegal sentence. It is the sentence under 18 U.S.C.
§ 924(c). That is the only sentence attacked by Hernandez, and the
court could do no more than vacate it.
7