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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 96-36058
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CV-96-00096-JKS
WILLIAM SCOTT BARRON, JR.,
                                                     OPINION
Defendant-Appellant.


Appeal from the United States District Court
for the District of Alaska
James K. Singleton, District Judge, Presiding


Argued and Submitted
October 22, 1998--San Francisco, California


Filed April 16, 1999

Before: Procter Hug, Jr., Chief Judge, James R. Browning,
Betty B. Fletcher, Stephen Reinhardt, John T. Noonan,
Diarmuid F. O'Scannlain, Stephen S. Trott,
Thomas G. Nelson, Michael Daly Hawkins,
Barry G. Silverman, and Susan P. Graber, Circuit Judges.


Opinion by Judge Noonan; Dissent by Judge Graber;
Partial Dissent and Partial Concurrence in the Dissent by
Judge Trott


_________________________________________________________________


SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1999 by West Group.
_________________________________________________________________


Criminal Law and Procedure/Sentencing

The court of appeals reversed an order of the district court.
The court held that a district court may not rescind an entire


                               3487


plea agreement and return the parties to the status quo ante
when the defendant establishes a lack of a factual basis for a
guilty plea in a postconviction motion under 28 U.S.C. S 2255
to vacate his sentence.


Pursuant to a plea agreement, appellant William Barron, Jr.
pled guilty to a controlled substance offense, being a felon in
possession of a firearm, and using a firearm during and in
relation to a drug-trafficking crime in violation of 18 U.S.C.
S 924(c)(1). After Barron began serving his prison sentence,
the Supreme Court decided Bailey v. United States, 516 U.S.
137 (1995), which established that there was no factual basis
("use" of firearm) for Barron's guilty plea.


Barron moved under S 2255 to vacate his S 924(c)(1) sen-
tence only, urging the court to leave the remainder of his con-
victions, sentence, and the plea bargain intact. The
government conceded that under Bailey, Barron's conviction
under S 924(c)(1) was unsupported by the evidence. However,
the government contended that because there had been an
overall "package" plea bargain, the court should rescind the
entire plea agreement and return the parties to their pre-plea
positions.


The district court gave Barron the choice of withdrawing
his motion, or letting it stand, in which case the parties would
be restored to the status quo ante: all three counts of the
indictment would be reinstated, and the government would be
free to add other charges, including charges based on the facts
underlying the indictment. Barron brought an interlocutory
appeal.


The court of appeals affirmed. The court divided on
Baron's petition for rehearing, but the full court granted
rehearing en banc.


[1] Section 2255 grants a petitioner in custody the right to
bring a motion to vacate, set aside, or correct the sentence on


                               3488


the ground that the sentence was imposed in violation of the
laws of the United States.


[2] The district court was in the position envisaged by
S 2255 where the court finds that the sentence imposed was
not authorized by law. At that point the statute instructs the
court that it "shall vacate and set aside the judgment" and do
one of four things: discharge the prisoner, resentence him,
grant a new trial, or correct the sentence, as may appear
appropriate. Accordingly the district court had to vacate the
judgment. Vacating the judgment does not prevent reinstate-
ment of unchallenged counts when the court decides to resen-
tence or correct the sentence. The district court effectively had
three options: grant a new trial, resentence, or correct the sen-
tence. The court did not have the option of conditionally
granting Barron's motion.


[3] Although Barron did not seek a new trial, the district
court chose that option on the ground that the plea agreement
had forfeited an appeal on the basis of "a favorable interven-
ing change in the law," so that the only way Barron's motion
could be granted was by construing it as an attack on the judg-
ment. The court was mistaken for three reasons. First, Barron
was not appealing. Second, Bailey was not a "favorable inter-
vening change in the law"; it was a determination that at no
time had the law forbidden use of a gun in the sense that Bar-
ron had used a gun. Third, granting a new trial was not neces-
sary to granting his motion. The court needed only to
resentence.


[4] Barron's motion asked the district court to vacate a con-
viction that was void as a matter of law. The motion did not
attack the plea agreement. The court had no authority to
invent a new basis for Barron's motion and erred in doing so.


[5] In S 2255 proceedings judgments are vacated and rein-
stated to cover only valid remaining convictions. As a practi-
cal matter, the guilty plea to criminal acts can remain in force


                               3489


even as the sentence imposed on an innocent act is set aside.
Nor is there any more reason for reducing S 2255 remedies to
two (discharge or new trial) when a plea agreement is in
force. The district court can distinguish the convictions that
are still valid, reinstate the judgment, and resentence.


[6] The government was mistaken in treating Barron's
motion as an attack on the plea agreement. The government's
reliance on contract law was by analogy, and the analogy was
not perfect. On rescission of a plea agreement, the prisoner
can never be returned to his "original position": he has served
time by reason of his guilty plea and surrender of basic consti-
tutional rights; the time can never be restored, nor can his
cooperation in his punishment. The interests at stake and the
judicial context require that something more than contract law
be applied.


[7] The broad and flexible power conferred by S 2255
authorizes the district court, after setting aside the invalid con-
viction, to resentence on the remaining crimes of which the
defendant stands convicted. The court could have vacated the
judgment and resentenced Barron on the counts of conviction
that still stood.


[8] The argument that plea bargains must be treated as a
package logically applies only in cases in which a petitioner
challenges the entire plea as unknowing or involuntary. [9]
The drafter of the plea agreement could have anticipated the
contingency that arose and included a provision protecting the
government's interest in the event that Barron's conviction
was vacated; that the government did not do so did not justify
rescission of the agreement.


[10] Reducing the district court's options to the single
option of granting a new trial may sometimes favor the gov-
ernment, sometimes the defendant. The issue should not be
decided on the basis of which party is aided, but on the basis


                               3490


of what the statute grants: the power to resentence after vacat-
ing a judgment that imposed a sentence not authorized by law.


Joined by Judges O'Scannlain, Trott, and Silverman, Judge
Graber dissented, concluding that the district court properly
held that Barron's plea agreement was entered unconstitution-
ally, and was authorized to set aside the judgment and grant
Barron a new trial.


Judge Trott dissented in part and concurred in Judge Gra-
ber's dissent in part. Joined by Judges O'Scannlain and
Silverman, Judge Trott wrote that the district court was cor-
rect in determining that by attacking a key component of the
sentencing plan envisioned in the plea agreement, Barron was
attacking the agreement itself. In Judge Trott's view, this
authorized the district court to treat the plea agreement as
rescinded and to restore the parties to the status quo ante.


_________________________________________________________________


COUNSEL

David M. Porter, Assistant Federal Public Defender, Sacra-
mento, California, for the defendant-appellant.


Thomas M. Gannon, United States Department of Justice,
Washington, D.C., for the plaintiff-appellee.


_________________________________________________________________

OPINION

NOONAN, Circuit Judge:

When a defendant moves under 28 U.S.C. S 2255 to set
aside an illegal conviction and a sentence once imposed as
part of a plea agreement, should the district court set aside the
entire plea agreement, returning the parties to their pre-plea
agreement position, or are other remedies provided by


                               3491


S 2255? Our answer to the first alternative is No and to the
second, Yes.


PROCEEDINGS

On December 17, 1991 William Scott Barron, Jr. of North
Pole, Alaska was indicted on one count of being a felon in
possession of a firearm in violation of 18 U.S.C.S 922(g)(1),
one count of possession of 21 ounces of cocaine with intent
to distribute in violation of 21 U.S.C. S 841(a)(1), and one
count of possession of a firearm in relation to a drug traffick-
ing crime in violation of 18 U.S.C. S 924(c)(1). The maxi-
mum punishment under the first count was ten years, while
the mandatory minimum sentence if the defendant had been
convicted of a violent felony or serious drug offense on three
previous occasions was 15 years. 18 U.S.C. S 924(a)(2) and
(e). The maximum under the second count was life imprison-
ment and the mandatory minimum was ten years. 21 U.S.C.
S 841(b)(1)(A). The sentence under the third count was five
years consecutive to any term of imprisonment imposed. 18
U.S.C. S 924(c)(1).


On April 20, 1992 Barron entered into a plea agreement
with the United States. The parties acknowledged that the
agreement was under, and controlled by, Federal Rule of
Criminal Procedure 11(e)(1)(A) and (C).1  Barron agreed to
_________________________________________________________________
1 Fed. R. Crim. P. Rule 11(e)(1) provides:


      The attorney for the government and the attorney for the defen-
      dant or the defendant when acting pro se may engage in discus-
      sions with a view toward reaching an agreement that, upon the
      entering of a plea of guilty or nolo contendere to a charged
      offense or to a lesser or related offense, the attorney for the gov-
      ernment will do any of the following:


       (A) move for dismissal of other charges; or

       (B) make a recommendation, or agree not to oppose the defen-
      dant's request, for a particular sentence, with the understanding
      that such recommendation or request shall not be binding upon
      the court; or


                               3492


plead guilty to all three counts. The United States agreed to
"not seek further prosecution arising out of the facts underly-
ing the present indictment"; to acknowledge that Barron had
accepted responsibility; to not seek an enhanced penalty under
18 U.S.C. S 924(e); and to acknowledge that Barron reserved
his right to appeal the ruling on his motion to suppress. The
parties agreed that Counts one and two should be grouped
pursuant to U.S. Sentencing Guidelines Manual S 3D1.2
(1992) in making the sentencing calculation.


On the same date as the agreement was made the district
court conducted a hearing at which the government stated that
there were "other evidence and other charges that could be
brought. We are promising to refrain from bringing those
charges, as part of the consideration, and, again, we construe
that as part of 11(e)(1)(A), whenever the government is agree-
ing not to pursue certain charges." The court referred to Rule
11(e)(1)(C) and inquired what was "the specific sentence that
you've agreed on as appropriate" under that rule. The govern-
ment replied that there was no agreement as to a specific sen-
tence but that "we have agreed that the defendant would not
be sentenced pursuant to 924(e) [the armed career criminal
statute], which provides a penalty of fifteen years to life."
Defense counsel noted that, otherwise, there was "at least a
possibility that the career offender statute could apply." The
prosecutor added that "the relevant conduct in this case, we
do believe could potentially bring the case into the 10-to-life

provisions of 841(b)."

The court carefully interrogated the defendant as to whether
he knew what he was pleading to and the numerous constitu-
tional rights such as trial by jury and the right to appeal that
_________________________________________________________________
       (C) agree that a specific sentence is the appropriate disposition
      of the case.


      The court shall not participate in any such discussions.

                               3493


he was giving up. The court then formally accepted Barron's
plea. Sentencing was postponed until receipt of the presen-
tencing report. On June 25, 1992 a sentencing hearing was
held. Barron's objections to the presentence report were
explored. The court sentenced Barron to ten years on the first
two counts to run concurrently and to a consecutive term of
five years on the gun count.


Three years later the Supreme Court held that to use a gun
for purposes of S 924(c)(1) means "active employment" of the
firearm in relation to the drug offense. Bailey v. United States,
516 U.S. 137, 143 (1995). Barron then moved under 28
U.S.C. S 2255 to set aside his conviction and sentence
imposed under 18 U.S.C. S 924(c)(1). The basis for the
motion was as follows: "Ground One: Recent Supreme Court
decision in Bailey v. United States makes the Petitioner's con-
viction under 18 U.S.C. S 924(c) invalid and it should there-
fore be vacated and dismissed." Ground One was the sole
basis for Barron's motion.


In argument to the court Barron noted that he had admitted
concealing a gun in a safe merely accessible to him, but not
to using the gun in the sense required by Bailey . The govern-
ment conceded that the facts did not justify his conviction on
the gun count.


The magistrate judge recommended that Barron's motion
under 28 U.S.C. S 2255 be granted but that at the same time
the plea agreement should be rescinded. The district court
agreed with those recommendations. According to the district
court, Barron by the plea agreement had forfeited "any non-
jurisdictional defenses including any defense based upon a
favorable intervening change in the law." The district court,
however, went on to hold that Barron could have the plea
agreement set aside on the ground that it was not knowing and
voluntary because of ignorance of the law declared by Bailey.
On motion for reconsideration the district court explained its
reasoning:


                               3494


      This Court reasoned that a guilty plea waives, or
      more accurately forfeits, any right to bring a post-
      conviction relief petition except one challenging the
      voluntariness of the plea. . . . The Court would there-
      fore have rejected Barron's S 2255 petition but for
      the Court's conclusion that Bailey undermined the
      prior finding of voluntariness. The Court was, and is,
      prepared to give Barron relief, but solely on the basis
      that his prior plea was involuntary. The proper relief
      is to withdraw his plea and return the parties to the
      status quo ante.


The court concluded its original order: "Barron's motion for
S 2255 relief should be conditioned on his timely withdrawal
of his plea."


Barron appealed. A panel of this court unanimously
affirmed. 127 F.3d 890 (9th Cir. 1997). On petition for rehear-
ing, the court divided. 136 F.3d 675 (9th Cir. 1998). The full
court granted rehearing en banc. 138 F.3d 809 (9th Cir. 1998).


ANALYSIS

At the outset it is suggested that Barron must show cause
and prejudice in order to be in a position to raise the issue he
now presents in his S 2255 motion. Bousley v. United States,
523 U.S. 614, 118 S. Ct. 1604, 1611 (1998). The government
did not raise this objection in the district court or in its briefs
on appeal. Ordinarily, the government's failure to raise the
petitioner's procedural default at the appropriate time waives
the defense. See Harmon v. Ryan, 959 F.2d 1457, 1461 (9th
Cir. 1992). We therefore will usually not allow the govern-
ment to raise a petitioner's default for the first time on appeal,
when it did not take the opportunity to do so before the dis-
trict court. See Turner v. Duncan, 158 F.3d 449, 454-55 (9th
Cir. 1998); Francis v. Rison, 894 F.2d 353, 355 (9th Cir.
1990). Because there are no extraordinary circumstances pres-
ent in this case which would suggest that justice would be


                               3495


served by overlooking the government's omission, we treat
the procedural default as waived. See Gonzalez v. United
States, 33 F.3d 1047, 1049 (9th Cir. 1994); cf. Paradis v.
Arave, 130 F.3d 385, 390 (9th Cir. 1997).


The government argues that Bousley's clarification of the
applicability of procedural default rules in this context repre-
sented a new development in the law, which excuses its pro-
cedural default. But the government acknowledges that the
issue resolved by Bousley was not "so novel that its legal
basis [was] not reasonably available to counsel." Reed v.
Ross, 468 U.S. 1, 16 (1984). At the time the Supreme Court
granted certiorari in Bousley, the government was litigating
the applicability of procedural default rules to challenges
based on Bailey in several circuits. See In re Hanserd, 123
F.3d 922 (6th Cir. 1997); Lee v. United States , 113 F.3d 73
(7th Cir. 1997); United States v. Barnhardt, 93 F.3d 706 (10th
Cir. 1996). In Bousley itself, the government had raised the
procedural default issue at both the district court and the cir-
cuit court level. See Bousley v. Brooks, 97 F.3d 284, 287 (8th
Cir. 1996), rev'd sub nom. Bousley v. United States, 523 U.S.
614, 118 S. Ct. 1604 (1998). Bousley was issued five months

before the government's appellate brief was due in this case,
yet the government did not raise the procedural default issue
here.


[1] Section 2255 grants a prisoner in custody the right "at
any time" to bring a motion "to vacate, set aside or correct the
sentence" upon the ground that the "sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sen-
tence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack."
28 U.S.C. S 2255. Of these several grounds, Barron chose
one, viz., that the sentence was imposed in violation of the
laws of the United States.


[2] The district court agreed with Barron's contention and
so was in the situation envisaged by S 2255 where the court


                               3496


finds "that the sentence imposed was not authorized by law."
At that point the statute instructs the court that it "shall vacate
and set the judgment aside" and do one of four things:
"discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate. " 28 U.S.C.
S 2255. The district court accordingly had to vacate the judg-
ment. Although the judgment is a single unitary act, the clear
implication of the statute is that vacating the judgment does
not prevent the reinstatement of unchallenged counts when
the court decides to resentence or to correct the sentence; oth-
erwise, every successful S 2255 petition would result in either
discharging the prisoner or granting a new trial. The statutory
language forbids elimination of the two possibilities of resen-
tencing or of correcting the sentence. Barron did not contend
that he was entitled to be discharged. The district court effec-
tively had three options: grant a new trial, resentence, or cor-
rect the sentence. The district court did not have the option of

conditionally granting Barron's motion.

[3] Although Barron did not seek a new trial, the district
court chose that option on the ground that Barron's plea
agreement had forfeited an appeal on the basis of "a favorable
intervening change in the law," so that the only way Barron's
motion could be granted was by construing it as an attack on
the plea agreement. In this analysis the district court was mis-
taken for three reasons. First, Barron was not appealing. Sec-
ond, Bailey was not "a favorable intervening change in the
law"; it was a determination that at no time had the law for-
bidden use of a gun in the sense Barron had used a gun. Third,
granting a new trial was not necessary to granting his motion.
To grant his motion, the district court did not need to con-
struct an argument against the plea agreement. The district
court needed only to resentence.


[4] Barron's motion purely and simply asked the district
court to vacate a conviction that was void as a matter of law.
The motion did not attack the plea agreement in any way. The
motion did not assert that Barron had entered the plea agree-


                               3497


ment unknowingly and involuntarily. The motion did not
assert that his conviction of use of a gun was unconstitutional.
Barron's motion proceeded on a recognized basis for seeking
federal habeas corpus, viz. that he was confined under a void
conviction and therefore under a sentence not authorized by
law. James S. Liebman & Randy Hertz, Federal Habeas Cor-
pus Practice and Procedure S 41.3b at 1192 (2d ed. 1994). It
is only the analysis of the district court that turned this simple
motion into something more, a challenge to the plea agree-
ment. The district court had no authority to invent a new basis
for Barron's motion and erred in doing so.


[5] It is urged that a guilty plea is "a single act," so that it
cannot be half knowing and half ignorant. This argument
assumes a ground for the S 2255 motion that Barron did not
advance. The argument might be rephrased to state that a
guilty plea cannot be only partly set aside. This argument is
parallel to the argument that, as there is only one judgment,
it cannot be vacated and then reinstated in part. These argu-
ments have the ring of metaphysical abstraction. As a practi-
cal matter, in S 2255 proceedings judgments are vacated and
then reinstated to cover only the valid convictions remaining.
E.g., United States v. Handa, 122 F.3d 690 (9th Cir. 1997),
cert. denied, _______ U.S. _______, 118 S.Ct. 869 (1998). As a practi-
cal matter, the guilty plea to criminal acts can remain in force
even as the sentence imposed upon an innocent act is set
aside. Nor is there any more reason for reducingS 2255 reme-
dies to two (discharge or new trial) when a plea agreement is
in force. Just as in the case of vacating a judgment after trial,

the district court can distinguish the convictions that are still
valid, reinstate the judgment, and resentence. We, along with
seven other circuits, followed this procedure in Handa.


The government approaches the question from contract
law, an angle distinct from that of the district court. The gov-
ernment argues that Barron breached the agreement by attack-
ing his S 924 conviction and sentence; therefore, there has
been a failure of consideration and the government is no lon-


                               3498


ger bound by the agreement. Alternatively, the government
contends that there was a mutual mistake of law; the mistake
justifies rescission. Restatement (Second) of Contracts S 152
(1981 & Supp. 1996). The government accurately observes
that we have frequently analyzed plea bargains on contract
principles. See, e.g., United States v. Escamilla, 975 F.2d 568,
571 (9th Cir. 1992). To seek to set aside a conviction for con-
duct that is innocent is neither to breach nor to repudiate the
agreement. United States v. Sandoval-Lopez, 122 F.3d 797,
802 (9th Cir. 1997). The plea agreement is not at issue.


[6] Not only is the government mistaken in treating Bar-
ron's motion as an attack on the plea agreement, but as the
government acknowledges its reliance on contract law is by
analogy, and the analogy is not perfect. United States v.
Partida-Parra, 859 F.2d 629, 634 (9th Cir. 1988). A plea bar-
gain is not a commercial exchange. It is an instrument for the
enforcement of the criminal law. What is at stake for the
defendant is his liberty. On rescission of the agreement, the
prisoner can never be returned to his "original position": he
has served time by reason of his guilty plea and his surrender
of basic constitutional rights; the time he has spent in prison
can never be restored, nor can his cooperation in his punish-
ment. What is at stake for the government is its interest in
securing just punishment for violation of the law and its inter-
est that an innocent act not be punished at all. The interests
at stake and the judicial context in which they are weighed
require that something more than contract law be applied.

This court has on other occasions declined to extend the con-
tract law analogy to invalidate a plea bargain based on a
mutual mistake of law. See United States v. Zweber, 913 F.2d
705, 711 (9th Cir. 1990); Partida-Parra, 859 F.2d at 634.


The government frames the issue as whether, in the light of
Bailey, Barron may move, pursuant to S 2255, to vacate his
conviction. Phrased in those terms, the answer has to be, "Of
course." The government in its brief actually says: "We do
not, of course, suggest that appellant should have been


                               3499


required to serve the full 60-month sentence that Bailey had
invalidated." That proposition, "Serve out your invalid
sentence," is repudiated by the government. But, after repudi-
ating this proposition, the government reinstates it by adding:
"[T]he proper remedy . . . [is] to return the parties to their ini-
tial positions," i.e., for Barron to get rid of his five year
invalid sentence he must run the risk of prosecution for a
crime entailing a life sentence. The government gives with
one hand and takes away with the other.


Starkly put, the government is in effect saying,"Serve out
your extra five years even though you are innocent; otherwise
be prepared to risk imprisonment for life as an armed career
criminal even though we agreed in 1991 that we would not
charge you with this crime." Cushioned in contract law, the
government's claim may not seem wholly unreasonable.
Stripped of the contract analogy, the government's position is
untenable. As an initial matter the government could not have
said, "You are innocent of using a gun, but if you'll plead to
it, we'll give up charging you for your career offenses."
Unless the government can do the same thing now by invok-
ing contract principles, its case is no better.


The first dissent offers an analysis different from that of the
magistrate judge, the district judge, the government in the dis-
trict court and on appeal, and the majority. The dissent
asserts: "UNDER 28 U.S.C. S 2255, THE DISTRICT
COURT WAS OBLIGED TO GRANT A NEW TRIAL"
(capitals in original). The dissent continues its analysis by
stating: "[H]e [Barron] claimed that his conviction for viola-
tion of 18 U.S.C. S 924(c)(1) should be vacated, because it
was procured in violation of his constitutional rights" (empha-
sis in original). This statement is made in error. Barron sought
to set aside his sentence and, as a ground, claimed that his
conviction was void because it was not authorized by law.
The dissent proceeds on a mistaken assumption.


The dissent quotes S 2255 but unaccountably overlooks that
the only motion authorized by that statute must begin with a


                               3500


claim as to the sentence. What a prisoner is complaining
about when habeas is sought is the imprisonment. By the
terms of the statute the prisoner has to attack the sentence, and
Barron did so. The dissent goes on to assert that Barron's sen-
tence was "authorized by law" in the sense that the sentence
matched the crime of which he stood convicted. This conten-
tion is a total abstraction from the facts. If the dissent's con-
struction of "authorized by law" were correct, no sentence
that corresponded to the crime of conviction could be set
aside even when the prisoner demonstrated complete inno-
cence of the crime. As everyone agrees, Barron should not
have been convicted of this crime. The conviction was there-
fore not authorized by law, and neither was the sentence.


The dissent asserts that the district court must vacate the
judgment. On that point there is no dispute. The dissent, how-
ever, goes on to say: "Structurally, when the error permitting
S 2255 relief lies in the entry of particular convictions, the
permissible remedies are the discharge of the prisoner or the
granting of a new trial as to the unconstitutional convictions"
(emphasis in original). Here, too, we are in agreement. The
dissent then goes on, however, to discuss United States v.
Marchese, 341 F.2d 782 (9th Cir.), cert. denied, 382 U.S. 817
(1965). In that case, after a jury trial the defendants contended
that their convictions had been obtained unconstitutionally.
Id. at 787. The district court agreed and reduced their sen-
tences from ten to five years. Id. at 786. We held that the sen-
tences could not be reduced "without vacating the
conviction." Id. at 788. We said, "If the court vacates and sets
aside the judgment of conviction, then, of course, the prisoner
must be discharged, or granted a new trial." Id. The dissent

makes this single sentence of Marchese stand not only for the
uncontroversial proposition that the only way an illegal con-
viction can be corrected is by discharging the prisoner or
granting a new trial, but it then contradicts its earlier state-
ment and implies that all the valid counts of conviction must
likewise be set aside. Marchese says no such thing. The dis-
sent indeed repeats this erroneous implication, stating: "[T]he


                               3501


usual remedy following a successful collateral attack on a
conviction resulting from a trial is a new trial. " To the con-
trary, the usual remedy is to set aside the counts on which ille-
gal convictions were obtained and to leave untouched the
valid convictions. If the sentence of Marchese  were literally
true in all circumstances, successful S 2255 petitions would
regularly lead to a new trial, even though a conviction on only
one count was challenged. That is not the way S 2255 peti-
tions are normally handled. See, e.g., United States v. Handa,
122 F.3d 690; Keating v. United States, 413 F.2d 1028 (9th
Cir. 1969) (resentence after vacating judgment and vacating
one of two convictions). If it were otherwise, the successful
challenge of one count might force the government to try
other valid counts where the evidence would be stale or dis-
persed. Section 2255 would become a nightmare for prosecu-
tors.


Marchese was simply a case where a district judge erred
and was reversed because he reduced the sentence without
finding the convictions or sentence illegal and without vacat-
ing the underlying judgment. The dissent concludes its discus-
sion of Marchese by asserting that we make the same error by
ordering resentencing when the petitioner's conviction was
obtained unlawfully. What the dissent fails to note is that,
unlike Marchese, we are not ordering resentencing on the
challenged count but only permitting it on the indisputably
valid ones. The claim that Marchese forbids the relief that the
majority requires is wholly unwarranted.


[7] In United States v. Handa we embraced the packaging
metaphor as enunciated by the Seventh Circuit and adopted
by the District of Columbia, First, Third, Fourth, Fifth, and
Eighth Circuits. 122 F.3d at 691-92. We held that the "broad
and flexible power" conferred by S 2255 authorized the dis-
trict court, after setting aside an invalid conviction, to resen-
tence on the remaining crimes of which the defendant stands
convicted. Id. at 691. We do not repudiate this holding; rather,
we affirm it so that the district court may vacate the judgment


                               3502


and resentence Barron on the two counts of conviction that
still stand, taking into account any relevant enhancement
under the Sentencing Guidelines. The dissent, despite lip ser-
vice to Handa, effectively would overrule it.


[8] The dissent argues that "the unitary nature of the entry
of a plea of guilty to multiple counts" forecloses such a rem-
edy in the instant case. However, the argument that plea bar-
gains must be treated as a package logically applies only in
cases in which a petitioner challenges the entire plea as
unknowing or involuntary. The dissent relies not on the statu-
tory language of S 2255 but rather on United States v. Gerard,
which held that a defendant who successfully withdraws from
a plea agreement may not object to revival of counts previ-
ously dismissed. 491 F.2d 1300, 1305-06 (9th Cir. 1974). The
dissent ignores that our subsequent decision in United States
v. Sandoval-Lopez, limited Gerard in holding that, unlike a
claim that the plea agreement itself was unknowing or invol-
untary, a collateral challenge to the legality of a particular
count of conviction does not constitute a breach of or with-
drawal from a plea agreement, and that the remainder of the
plea agreement remains in effect. 122 F.3d at 801-02. More-

over, the dissent offers no statutory authority for vacating
counts of conviction that have not been challenged by a
S 2255 petitioner.


[9] The drafter of the plea agreement could have antici-
pated the contingency that has arisen and included a provision
protecting the government's interest in the event that Barron's
conviction was vacated; that the government did not do so
does not justify recission of the agreement. See id.


The second dissent follows the government's tack in press-
ing the analogy between a plea bargain and a contract without
acknowledging the differences that are relevant here. This dis-
sent also adopts the approach of the district court in speculat-
ing about how to decide a case not before us and strangely
underestimates the government's ability to provide in the plea


                               3503


agreement for the contingency that has arisen. That contin-
gency is not, as this dissent erroneously maintains, a change
in the law but an authoritative declaration of what the law is.
Most notably, the second dissent discussing a procedure that
is governed by statute fails to focus on the statute at all. At
the North Pole, as in the nation's capital, the search for justice
starts with the statute.


[10] Reducing the district court's options to the single
option of granting a new trial may sometimes favor the gov-
ernment, sometimes the defendant. The issue should not be
decided on the basis of which party is aided but on the basis
of what the statute grants: the power to resentence after vacat-
ing a judgment that imposed a sentence not authorized by law.
The statute incorporates the fundamental principle that it is
never just to punish a man or woman for an innocent act.
Accordingly, we reverse the district court and remand for fur-
ther proceedings consistent with this opinion.


REVERSED AND REMANDED

_________________________________________________________________

GRABER, Circuit Judge, with whom O'SCANNLAIN,
TROTT and SILVERMAN, Circuit Judges, join, dissenting:


I respectfully dissent.

Preliminarily, there are four areas in which I agree with the
majority:


1. The government waived its opportunity to rely on a the-
ory of procedural default.


2. Barron is entitled to some form of relief under 28 U.S.C.
S 2255.


3. By asking the court to vacate a conviction, Barron is not
"breaching" the plea agreement.


                               3504


4. The district court's fashioning of an alternative remedy,
giving Barron a choice whether to renege on this entire pro-
ceeding, is beyond what the statute authorizes the district
court to do.


After that, however, the majority and I part company. As
explained below, the district court properly held that Barron's
plea was entered unconstitutionally. The district court then
was obliged to vacate and set aside the judgment and to grant
Barron a new trial. In the context of a plea, the scope of such
a new trial (or, of course, a new plea agreement) encompasses
any charges that were dismissed and any uncharged crimes
that the government agreed not to prosecute (as to which the
statute of limitations has not run), subject only to the well-
established limitation of due process that the government may
not act vindictively to punish a defendant for having exercised
the right to challenge the first proceeding.


UNDER 28 U.S.C. S 2255, THE DISTRICT COURT
WAS OBLIGED TO GRANT A NEW TRIAL


Section 2255 provides in part:

       A prisoner in custody under sentence of a court
      established by Act of Congress claiming the right to
      be released upon the ground that the sentence was
      imposed in violation of the Constitution or laws of
      the United States, or that the court was without juris-
      diction to impose such sentence, or that the sentence
      was in excess of the maximum authorized by law, or
      is otherwise subject to collateral attack, may move
      the court which imposed the sentence to vacate, set
      aside or correct the sentence.


       . . . .

       . . . If the court finds that the judgment was ren-
      dered without jurisdiction, or that the sentence


                               3505


      imposed was not authorized by law or otherwise
      open to collateral attack, or that there has been such
      a denial or infringement of the constitutional rights
      of the prisoner as to render the judgment vulnerable
      to collateral attack, the court shall vacate and set the
      judgment aside and shall discharge the prisoner or
      resentence him or grant a new trial or correct the
      sentence as may appear appropriate.


(Emphasis added.)

The emphasized text, on its face, provides a three-step pro-
cedure for granting relief:


    - First, the district court must determine whether "the judg-
      ment was rendered without jurisdiction, or [whether] the
      sentence imposed was not authorized by law or otherwise
      open to collateral attack, or [whether] there has been such
      a denial or infringement of the constitutional rights of the
      prisoner as to render the judgment vulnerable to collateral
      attack."


    - Second, if the district court finds one of those conditions,
      it "shall vacate and set the judgment aside."


    - Third, after vacating and setting aside the judgment, the
      court "shall" do one of four things, as may appear appro-
      priate -- (1) discharge the prisoner, (2) resentence the
      prisoner, (3) grant a new trial, or (4) correct the sentence.


A. Barron's constitutional rights were infringed so as to
      render the judgment vulnerable to collateral attack .


The majority's first mistake, from which others flow, is the
assertion (slip op. at 3496) that Barron did -- or can in these
circumstances -- claim that "the sentence was imposed in
violation of the laws of the United States." 28 U.S.C. S 2255.
A sentencing error presupposes the validity of a conviction,


                               3506


and the corresponding remedy aims only to bring the sentence
into line with the proper conviction. That kind of error occurs
when, for example, a district court misapplies the Sentencing
Guidelines to the crime of conviction, and it is necessary to
correct the sentence. Here, the sentence imposed was autho-
rized by law; the sentence matched the crime of conviction,
a crime that is stated by a constitutional statute. See United
States v. Vences, No. 98-10095, 1999 WL 95500, at *2 (9th
Cir. Feb. 26, 1999) (stating that the defendant's "sentence was
not illegal because the sentence was authorized by the judg-
ment of conviction and did not impose on [the defendant] a
sentence in excess of the statutory penalty").


In the face of that lawful sentence, Barron did not attack his
sentence qua sentence. Rather, he claimed that his conviction
for violation of 18 U.S.C. S 924(c)(1) should be vacated,
because it was procured in violation of his constitutional
rights. Specifically, he alleged that recent Supreme Court pre-
cedent, Bailey v. United States, 516 U.S. 137 (1995), made his
"conviction under 18 U.S.C. S 924(c) invalid." (Emphasis
added.)


At the first step of the analysis, the district court correctly
understood that the only way to vacate a conviction after a
judgment has been entered on a guilty plea and associated
sentence is to hold that the plea was defective. 1 I shall develop
_________________________________________________________________
1 The majority's citation to James S. Liebman & Randy Hertz, Federal
Habeas Corpus Practice and Procedure S 41.3b at 1192 (2d ed. 1994),
slip op. at 3498, does not advance the discussion. The case that the treatise
cites, Bateman v. United States, 875 F.2d 1304, 1307 (7th Cir. 1989),
stands only for the undisputed proposition thatS 2255 "relief will be
afforded to a prisoner who is able to show . . . that he was convicted of
a federal crime and sentenced thereon based upon conduct which under no
possible view amounts to a violation of federal law. " In that case, how-
ever, the court had no occasion to consider what kind of relief would be
appropriate, because it held that the prisoner was guilty of the crime

charged and thus could obtain no relief at all. Id. at 1309-10. Here, by con-
trast, Barron was not guilty of violating 18 U.S.C.S 924(c), and he is enti-
tled to some form of relief.


                               3507


this point more fully in the next section of this opinion, in par-
ticular in the discussion of United States v. Marchese, 341
F.2d 782 (9th Cir. 1965).


The district court properly held that Barron's plea was
defective, because it was not made knowingly and intelli-
gently. United States v. Barron, 940 F. Supp. 1489, 1490-91
(D. Alaska 1996). Barron's act of pleading guilty was not
knowing and intelligent, because he misunderstood what facts
the government had to prove if it went to trial. The rubric that
S 2255 provides for such a problem is "that there has been
such a denial or infringement of the constitutional rights of
the prisoner as to render the judgment vulnerable to collateral
attack."


B. The district court's next step is to vacate and set aside
      the judgment.


After concluding that a prisoner's plea was not knowing
and intelligent, the district court's next step is to vacate and
set aside the judgment. Ordinarily (as is true here), there is but
one "judgment" in a criminal case. The judgment is the "final
decision" that "resolve[s] the ultimate question of the guilt or
innocence of the accused" of the crimes charged in the indict-
ment and determines a sentence if there has been a finding of
guilt. United States v. Dior, 671 F.2d 351, 354 (9th Cir.
1982). "In general, a `judgment' . . . is final for the purpose
of appeal only `when it terminates the litigation between the
parties on the merits of the case, and leaves nothing to be
done but to enforce by execution what has been
determined.' " Id. (quoting Parr v. United States, 351 U.S.
513, 518 (1956)).


The text of S 2255 embodies those principles. It contem-
plates that "the judgment" encompasses all counts on which
the prisoner was convicted and all sentences imposed with
respect to those counts. For example, "discharg[ing] the
prisoner," the first remedial option, would make no sense if


                               3508


only some but not all counts were involved. Moreover, Con-
gress' use of the definite article "the," when referring to "the
judgment," carries the message that there is one identifiable
document.


Vacating the judgment is simply the mechanism that per-
mits the district court to act again with respect to a case that
otherwise has been completed. In fact, there is no other way
for the district court to act on the underlying case after entry
of a final judgment. See Marchese, 341 F.2d at 788 (stating
that a judge cannot change or modify a lawful sentence after
Rule 35's 60-day period has expired, unless the district court
vacates the judgment of conviction). That is whyS 2255
makes the act of vacating and setting aside the judgment man-
datory, by the use of the term "shall." See United States v.
Contreras, 895 F.2d 1241, 1243 (9th Cir. 1990) (noting that
the term " `shall' is used to issue a mandatory directive").
Only after vacating and setting aside the judgment may the
court fashion one of the listed remedies, after which the court
enters a new judgment.


C. The appropriate remedy when a guilty plea was entered
      unknowingly and unintelligently is to grant the prisoner
      a new trial.


Section 2255 lists the options that the district court has after
vacating and setting aside the judgment. To recapitulate, there
are four options: (1) discharge the prisoner, (2) resentence the
prisoner, (3) grant the prisoner a new trial, or  (4) correct the
prisoner's sentence. The district court is to choose the
"appropriate" alternative. Ordinarily, a given problem will
give rise to only one form of remedy.


The choice of remedy is at the heart of this case, and it is
at the heart of my disagreement with the majority's approach.
The majority holds that the district court simply should have
resentenced Barron without taking into account theS 924(c)
conviction. That solution misconstrues what occurs structur-


                               3509


ally when a prisoner challenges the validity of a judgment of
conviction and sidesteps well-established principles for fash-
ioning post-conviction remedies for a defective guilty plea.


Structurally, when the error permitting S 2255 relief lies in
the entry of particular convictions, the permissible remedies
are the discharge of the prisoner or the granting of a new trial
as to the unconstitutional convictions. More than 30 years
ago, this court recognized the precepts embodied in the fore-
going sentence.


Marchese involved the fate of two prisoners. In a S 2255
proceeding, the two prisoners claimed, among other things,
that their convictions were procured unconstitutionally,
because the government had failed to disclose certain infor-
mation to the defense and because evidence used at trial had
been obtained in violation of the prisoners' Fourth and Fifth
Amendment rights. The district court agreed with the prison-
ers' constitutional arguments and reduced the sentences of
both prisoners. The government appealed. This court held that
the district court exceeded its "authority and jurisdiction
under 28 U.S.C. S 2255." 341 F.2d at 787. After noting the
four options available to a district court underS 2255 when it
finds a constitutional violation, this court wrote:


      It could be maintained that the district court acted
      under the fourth alternative by correcting appellees'
      several sentences. But there was no showing that the
      original sentence was faulty; therefore, no
      "correction" of the sentence was authorized, absent
      an illegal conviction. The sentence was "modified"
      or "reduced" -- and this was done because of
      alleged trial errors uncovered by the district court. If
      the court's position is sound that error in fact
      occurred, of a kind that would justify granting of a
      S 2255 motion, appellees' sentences should have
      been entirely vacated and set aside, and the prisoners


                               3510


      discharged from the service of any time based on the
      illegal conviction.


       If the court vacates and sets aside the judgment of
      conviction, then, of course, the prisoner must be dis-
      charged, or granted a new trial. If the sentence, as
      distinguished from the conviction, is illegal, then it
      may be corrected. But a judge cannot, without vacat-
      ing the conviction because of a legal defect found
      therein, change or modify, after Rule 35's sixty day
      period has expired, a sentence that is itself proper,
      legal and lawful as a sentence.


Id. at 788 (first paragraph emphasis in original, second para-
graph emphasis added; citations omitted).


In this case, too, the original sentence was a proper, legal,
and lawful one for a violation of 18 U.S.C. S 924(c). In this
case, too, there was a legal defect in the procurement of the
conviction. In this case, too, the district court had no option
to resentence or correct the sentence; "the prisoner must be
discharged, or granted a new trial." Id.


What the district court did, erroneously, in Marchese is
what the majority requires the district court to do here. How-
ever, we made clear in Marchese that the district court lacked
authority to resentence the petitioners under S 2255 when
their convictions were procured unconstitutionally. 2
_________________________________________________________________
2 Marchese is consistent with United States v. Handa, 122 F.3d 690 (9th
Cir. 1997), cert. denied, 118 S. Ct. 869 (1998). The analysis in Handa
simply assumed an intermediate step that Marchese discussed expressly,
and the procedural facts were materially different. In Handa, the defendant
had been convicted of two crimes after a trial. Unlike in Marchese, one
conviction was valid. After the district court granted Handa's S 2255
motion, it set aside the judgment, vacated the one improper conviction,
and re-entered the proper conviction. Then, of course, the district court
had to impose sentence again.


                               3511


The law of this circuit is equally settled with respect to a
post-conviction challenge when the unconstitutionally pro-
cured conviction results from a plea of guilty, as distinct from
a trial. Generally, the appropriate remedy in the situation in
which a prisoner entered a defective plea pursuant to a plea
agreement is to set aside the plea and grant a new trial.3 Only
by setting aside the plea does the district court have jurisdic-
tion to vacate the conviction.


This court has recognized that, when a prisoner success-
fully attacks a plea as not knowing and intelligent, the proper
remedy is to vacate or set aside the plea and grant a new trial.
For example, in United States v. Barker, 681 F.2d 589, 592-
93 (9th Cir. 1982), this court held that the district court could
reinstate the prisoner's indictment after she successfully
attacked her plea under S 2255 on the ground that her plea
was made in the absence of adequate information. When the
_________________________________________________________________
In other words, "resentencing" must occur after a successful S 2255
motion that affects one of several counts of conviction after trial. See
Keating v. United States, 413 F.2d 1028 (9th Cir. 1969) (requiring resen-
tencing when one of several counts is vacated in aS 2255 proceeding, and
convictions resulted from a jury trial). By contrast, in Marchese, no valid
conviction remained, so the court had no occasion to re-enter a conviction
or impose a new sentence based thereon.


The majority (slip op. at 3502) is incorrect that, under Marchese, a suc-
cessful S 2255 motion always would lead to a new trial. As noted, when
the challenged convictions result from a trial, a new trial would be
required (if at all) only as to unconstitutional counts; the district court re-
enters convictions on the constitutional counts and resentences the pris-
oner.


However, neither Marchese nor Handa considered the pivotal point in
deciding the proper remedy in the present case: the unitary nature of the
entry of a plea of guilty to multiple counts. I address that topic in the text
below.
3 Discharge of the prisoner may be an option in some circumstances. For
instance, in this case, had the S 924(c) charge been the only one available
to the government and the only one brought against Barron, he would be
entitled to be discharged forthwith.


                               3512


district court set aside the conviction that had resulted from a
plea, there remained but one mechanism for proceeding, that
is, going to trial on the original indictment. Id. See also
United States v. Gerard, 491 F.2d 1300, 1306 (9th Cir. 1974)
("If, for example, a defendant pleaded guilty to one count and
the prosecutor dismissed the others, it should be reasonably
apparent that the dismissal was in consideration of the plea;
if the defendant succeeded in withdrawing the plea, he should
not be able to object to the prosecutor's reviving the other
counts.").


So far, I have demonstrated that (1) the usual remedy fol-
lowing a successful collateral attack on a conviction resulting
from a trial is a new trial,4 and (2) the usual remedy following
a successful collateral attack on a conviction resulting from a
plea is, likewise, a new trial. It remains only to decide
whether that usual remedy follows when the plea involves
multiple charges.


A defendant's entry of a plea of guilty is a single act that
takes place at a single time and place with a single state of
mind. A defendant's plea cannot be half voluntary and half
involuntary; half knowing and half not knowing; half consti-
tutional and half unconstitutional. A constitutional error that
makes the acceptance of the plea improper infects the whole
plea. It is either valid or void but cannot be both. This court
has recognized the obvious reality that pleas result from bar-
gains and that a plea agreement should be treated as a pack-
age. See Gerard, 491 F.2d at 1305-06 (recognizing that "[t]he
very fact . . . that there was a plea suggests the possibility of
a plea bargain, or perhaps a consciously lower sentence in
consideration of the defendant's not insisting upon trial" and
that, in such situations, if the defendant succeeds in withdraw-
ing from the agreement the prosecution is free to revive dis-
_________________________________________________________________
4 See footnote 2, above, for a brief discussion of the remedy following

a successful collateral attack on one count among many, when the multiple
convictions resulted from a trial.


                               3513


missed counts).5 If a prisoner successfully attacks a guilty plea
involving multiple charges by arguing that, as to one of the
charges, the plea was unknowing and therefore unconstitu-
tional, the remedy still must be retrial.


Understandably, the majority seeks to protect Barron from
the ironic consequence of a potentially harsher result after a
successful challenge to his S 924(c) conviction. But the
majority distorts precedent, as well as the terms ofS 2255, to
achieve its goal.


I note, initially, that it is routine for a defendant to run the
risk that the outcome of a second proceeding will be worse
than the outcome of the first. See, e.g., United States v.
Goodwin, 457 U.S. 368 (1982) (holding that a worse outcome
after exercise of the right to go to trial did not create a pre-
sumption of prosecutorial vindictiveness). Moreover, and
relatedly, it must be remembered that the prisoner, not the
government, files a S 2255 motion. See Barker, 681 F.2d at
592-93 (so noting). The reinstatement of Barron's plea of "not
guilty" results not from any affirmative act of the government,
but from Barron's initiation of a proceeding to void one of the
convictions that resulted from his plea of "guilty."


Finally, and most importantly, principles of due process
already protect a person in Barron's situation from the fear of
prosecutorial vindictiveness. On retrial, a prisoner is protected
against receiving an increased punishment solely for having
exercised the right to challenge the original conviction under
S 2255. Merely returning a prisoner to the position that she
occupied before she entered a guilty plea and then success-
_________________________________________________________________
5 This court also has recognized the "package" concept with respect to
sentencing. See United States v. Handa, 122 F.3d 690, 692 (9th Cir. 1997)
("The metaphors of `package' and `unbundling' are attractive and appear
to reflect the realities of sentencing."), cert. denied, 118 S. Ct. 869 (1998).


By contrast, as explained in footnote 2, multiple counts of conviction
after trial are not a "package."


                               3514


fully challenged the plea (that is, returning her to a "not
guilty" plea and a trial on the original indictment) does not
enhance the prisoner's risk of punishment, however, and does
not imply retaliatory intent. Barker, 681 F.2d at 593.


Under the terms of S 2255 and under our precedents, the
only option available to the district court is to grant Barron a
new trial with respect to the charges that he still faces. Of
course, the S 924(c) charge no longer is on the table, and Bar-
ron cannot be punished for an alleged violation of that law, no
matter what else happens. Whether the case is actually tried
on those remaining counts or on additional counts (provided
that they are not time-barred and that their revival is not vin-
dictive), or whether the parties enter into a new plea agree-
ment, is not up to the district court to decide in the remedy
phase of a S 2255 proceeding. Neither is it up to us, on appeal,
to decide prospectively what will happen.


The district court's error here, which the majority com-
pounds, was in going beyond the plain new-trial remedy that
S 2255 allows in the circumstances presented. That statute
does not give the district court the option to give a prisoner
the choice to reinstate an unconstitutional guilty plea. Neither
does the statute give the district court authority to decide
ahead of time whether the revival of additional charges, not
contained in the indictment, would be permitted. Finally, as
discussed above, the statute does not give the district court
authority to "resentence" in this situation.


To summarize, the mechanism that the law provides for
protecting a prisoner in this situation, having chosen to attack
a conviction resulting from a plea and having succeeded, is a
limited one; on retrial, the prosecutor may not act vindic-
tively. And, in deciding this question of statutory authority,
we may not presume that the prosecutor would do so.


                               3515


COMMON SENSE COMPELS THE COURT
TO RETURN THE PARTIES TO THE
STATUS QUO ANTE


Last but not least, common sense dictates the result that I
propose. Barron thought that he was guilty of violating 18
U.S.C. S 924(c). So did his lawyer, the prosecutor, and the
district judge. On that premise, a plea agreement was struck
that disposed of the entire case.


When, years later, Bailey v. United States, 516 U.S. 137
(1995), established that Barron, the government, and the dis-
trict court all were mistaken about S 924(c), the district court
was faced with the problem of how best to implementS 2255
relief. The district court found that the plea agreement in this
case, as in most others, was an integrated, comprehensive,
cohesive "package." The court sensibly determined that jus-
tice would best be served by rescinding the agreement and
returning the parties to the place where they started (minus the
S 924(c) charge).


It simply makes sense to let the parties begin again when
they all started off on the wrong foot.6  In this context, that
means that the guilty plea should be set aside and the pleas of
not guilty reinstated.


Such a result will work to the prisoner's advantage in many
cases, particularly if a lot of time has passed and the govern-
ment is no longer able to proceed, or if the prisoner's bargain-
ing position has improved in other ways. In all events, as
discussed above, the rule against prosecutorial vindictiveness
_________________________________________________________________
6 Although my view of this case does not rest on contract law, it is inter-
esting to observe that contract principles would lead to the same common-
sense result that I suggest. See Restatement (Second) of Contracts, SS 151-
152 (describing the doctrine of mutual mistake; a contract is voidable if,
at the time the contract was made, both parties had an erroneous, material
misunderstanding on which the contract was based).


                               3516


protects the prisoner from governmental overreaching in the
next round. This approach is entirely consistent with the logic
of Handa and our other precedents, and it is fair and reason-
able.


For the foregoing reasons, I must dissent. I would affirm
the district court's decision insofar as it held that Barron's
plea of "guilty" was not knowing and intelligent, vacated the
judgment, reinstated Barron's pleas of "not guilty," and
granted a new trial, and I would reverse the decision insofar
as it is inconsistent with the principles stated in this dissenting
opinion.


_________________________________________________________________

TROTT, Circuit Judge, with whom O'SCANNLAIN and
SILVERMAN, Circuit Judges, join, Dissenting and Concur-
ring in Part in the Dissent of Graber, Circuit Judge:


Not only is the proof of the pudding always in the eating,
but so sometimes is the poison. The net result of the majori-
ty's faulty approach to resolving Barron's interlocutory prob-
lem yields acute systemic distress when applied to other
common sets of facts and circumstances. This is what they
have accomplished.


Abel is charged with two felony counts. Count I charges X.
Count II charges Y. Abel freely and voluntarily pleads guilty
to Count II pursuant to a plea bargain. In consideration of the
plea, Count I is dismissed. Abel is sentenced to prison for Y.


One week after the time to appeal expires, the Supreme
Court decides that the Ninth Circuit's published view of the
evidence needed to prove Y is wrong, an occurrence not
unheard of. Abel files a motion under 28 U.S.C.S 2255
(1994) attacking his "sentence," or whatever. Abel, of course,
is correct -- about the validity of his conviction.


                               3517


Here's the poison: the majority's approach in this case
immediately sets Abel free and bars any further action on
Count I -- even though 1) Abel made no appropriate objec-
tion, 2) Abel did not appeal, 3) Abel procedurally defaulted,
and 4) the consideration for the agreement has failed -- leav-
ing the government and society holding an empty bag. 1


The district court clearly apprehended this problem,
unmasking it with a more graphic example:


       Assume that the authorities arrest Jack the Ripper,
      charge him with the torturous murder of 175 women,
      and a Grand Jury subsequently issues an indictment.
      Facing 175 convictions and consequent death penal-
      ties, Ripper, on advice of counsel, pleads to one
      count--the murder of Sally Jones--in return for a
      guaranteed life sentence and a promise by the prose-
      cutor to dismiss all other charges. Ripper killed so
      many women he cannot be sure if he really killed
      Sally; his victims kind of blend together in his mind.
      However, she died under circumstances virtually
      identical to his other victims, and he was in the
      neighborhood at the time of her murder. Therefore,
      he cheerfully concedes guilt, the prosecutor dis-
      misses the other charges, and Ripper receives the
      bargained for sentence. Years later, it transpires that
      a copy-cat actually killed Sally and that Ripper is
      unquestionably innocent for Sally's murder. Ripper

      moves for post-conviction relief. In the words of the
      Supreme Court, he is factually innocent and no one
      can contest his innocence. The gravamen of Ripper's
      claim is that there was a mutual mistake of fact. The
      proper result would be to set aside the plea and rein-
      state the original charges so that a new agreement
_________________________________________________________________
1 This is not the first time we have made this mistake. See United States
v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997).


                               3518


      can be reached on the basis of the murder of a victim
      that Ripper actually did kill.


United States v. Barron, 940 F. Supp. 1489, 1493 n.6 (D.
Alaska 1996) (citations omitted). This result is incongruous to
say the least. The Ripper was never placed in jeopardy on the
dismissed counts, and a statute of limitation does not shelter
him because the crime is murder, yet he is permanently free
because the government remains bound by the unraveled plea
agreement even though he is relieved from performing a
material part of the agreement as a consequence of his delib-
erate election to attack it.


The majority seems frozen by certain words Barron uses in
attacking his predicament, focusing myopically on his calcu-
lated failure to ask for a new trial, a focus that interferes with
any reasoned attempt to properly characterize and process his
motion. Barron called it an attack on his "conviction," pure
and simple. This is not a Kabuki dance or a game. Barron can-
not fend off the truth by using the statute as a shield when it
carries no such restriction in this context. He should not get
what he asks for, but what S 2255 permits as "appropriate."
The district court was correct when it said, "By attacking a
key component in the sentencing plan envisioned in the plea
agreement, Barron is, in effect, attacking the plea agreement
itself." 940 F. Supp. at 1493. The Supreme Court has told us
that a "trial judge's characterization of his own action cannot
control the classification of the action," United States v. Scott,
437 U.S. 82, 96 (1978), yet here we permit a defendant to get
away with what a trial judge cannot do -- prevail behind the

mask of inappropriate nomenclature and labels.

I was under the impression -- mistaken, I suppose -- that
complete frustration of purpose, or impossibility of perfor-
mance, or failure of consideration -- call it what you may --
brought on by subsequent or superseding events, such as a
change in the law rendering performance illegal, discharges
both parties to a contract from the duty to perform. We


                               3519


seemed to understand this principle twenty-five years ago in
United States v. Gerard, 491 F.3d 1300, 1305-06 (9th Cir.
1974), when we said that the government should not always
be locked into its side of a plea bargain when a defendant suc-
ceeds in withdrawing from his, but today the principle escapes
us. See also Santobello v. New York, 404 U.S. 257, 263 n.2
(1971) ("If the state court decides to allow withdrawal of the
plea, the petitioner will, of course, plead anew to the original
charge on two felony counts."); United States v. Hillary, 106
F.3d 1170, 1172 (4th Cir. 1997) ("[O]n correcting the error
complained of in a S 2255 petition, the defendant may be
`placed in exactly the same position in which he would have
been had there been no error in the first instance.' " (quoting
United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996))). I
note that the government relinquished the opportunity to pur-
sue Barron as a career offender in return for this plea, and in
so doing gave up the possibility of a life sentence.


The district court correctly understood and rejected the
windfall Barron was seeking:


       The confusion in the cases cited by Barron may be
      traceable to the fact that where two parties rescind a
      contract, each is entitled to restitution of any benefit
      he bestowed on the other party. In this situation, the
      benefit Barron bestowed is the time he served and
      will serve. He is entitled to restitution for that
      amount. He will receive it in the form of credit for
      time served against any sentence he should ulti-
      mately receive. The benefit the government
      bestowed was the promise not to seek further prose-
      cution arising from facts underlying the indictment
      and not to seek the enhanced, higher sentence, i.e.,
      18 U.S.C. S 924(e), which provides a fifteen-year
      minimum. Because Barron is entitled to be relieved
      of a major part of the burden of his plea, common
      sense and justice suggests that he lose the benefits as
      well.


                               3520


United States v. Barron, 940 F. Supp. at 1493-94.

The Seventh Circuit put it quite well in a Bailey2 setting
similar to our present case:


       If a multicount sentence is a package--and we
      think it is--then severing part of the total sentence
      usually will unbundle it. And we do not think it mat-
      ters what means are used to bring resentencing pro-
      ceedings before the district court. Under the
      sentencing package concept, when a defendant raises
      a sentencing issue he attacks the bottom line. That
      Smith's case came before the district court pursuant
      to a S 2255 petition, rather than a remand from us or
      by some other means, does not change that fact.


United States v. Smith, 103 F.3d 531, 534 (7th Cir. 1996).
Based on this analysis, that court affirmed the resentencing of
a defendant on two counts not disturbed by Bailey, increasing
the sentences for those offenses.


The majority's approach seems driven by a questionable
sense of rough justice based on an aversion to the possibility
that Barron might face a harsher sentence as a reward for his
successful challenge. In a similar context, we recently recog-
nized that such a result would not necessarily be inequitable,
see United States v. Handa, 122 F.3d 690, 692 (9th Cir.
1997), when Judge Noonan wrote for the court:


       Handa argues earnestly that resentencing under
      the Guidelines after he has prevailed in setting aside
      the firearms count of conviction is unfair. That view
      of the matter goes too far in treating sentencing as a
      kind of game . . . . There is, therefore, no constitu-
      tional barrier to the district court imposing a sen-
      tence, and no unfairness in imposing a sentence that
_________________________________________________________________
2 United States v. Bailey, 516 U.S. 137 (1995).


                               3521


      the Guidelines make appropriate for Handa's con-
      duct.


The truth is that because this appeal is interlocutory, we
have no idea what appropriate sentence the district court
might have determined. Surely Barron would get credit for
time served, as the district court indicated; and, as Judge Gra-
ber explains, plenty of rules exist to ensure that any new sen-
tence he receives will comport with due process and the law,
and that is what matters. See Alabama v. Smith , 490 U.S. 794,
799 (1989) ("[The] presumption of vindictiveness `do[es] not
apply in every case where a convicted defendant receives a
higher sentence on retrial.' " (quoting Texas v. McCullough,
475 U.S. 134, 138 (1986))) (overruling in part North Carolina
v. Pearce, 395 U.S. 711 (1969)); Bordenkircher v. Hayes, 434
U.S. 357, 364-65 (1978) (holding that the Fourteenth Amend-
ment is not implicated when a state prosecutor carries out a
threat during plea negotiations to reindict the accused on more
serious charges if he does not plead guilty to the offense with
which he was originally charged); Blackledge v. Perry, 417

U.S. 21, 27-28 (1974) (protecting against vindictive conduct
by a prosecutor against a defendant who attacks his convic-
tion on appeal); Pearce, 395 U.S. at 723-24 (imposing consti-
tutional limitations on but not barring the imposition of a
harsher sentence after conviction on retrial after a successful
post-conviction proceeding), overruled on other gnds., Smith,
490 U.S. at 799.


The majority opinion appears to overlook the implications
in this context of longstanding principle that permits a district
court to accept a plea of guilty from a defendant who says he
is innocent so long as there exists a factual basis for the plea.
North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). And, as
we said in United States v. Neel, 547 F.2d 95, 96 (9th Cir.
1976) (per curiam), "The court need not be convinced beyond
a reasonable doubt that [the] accused is guilty. It need only be
convinced that there is sufficient evidence to justify the reach-
ing of such a conclusion." It is also appropriate for the same


                               3522


district court to refuse to permit such a defendant to withdraw
his guilty plea even though he pleads legal confusion, repeats
his claim of innocence, and asks for fairness and justice.
United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995).
The rationale behind the Alford rule as expressed by Justice
White is plain and simple: "As one state court observed nearly
a century ago, `[r]easons other than the fact that he is guilty
may induce a defendant to . . . plead [guilty ] [and] [he] must
be permitted to judge for himself in this respect. " Id. at 33.
The court also embraced the concept that the Constitution is
not offended by the acceptance of a plea "even though the
evidence before the judge indicated that there was a valid
defense." Id. at 35.


From this line of cases, I conclude that no constitutional or
statutory infirmity exists in the choice the district court gave
Barron: either perform your part of the deal, or start over
again. I note that the district court's charitable reasoning in
this regard, which echos what Justice White said in Alford,
was that Barron should not be compelled to withdraw his plea
if he did not want to. In fact, the court very well could have
refrained from the option of sticking with the deal and simply
said, "This is what happens when we grant your motion." The
choice may not be easy, but it was necessarily occasioned by
Barron's criminal conduct and the change in the law. In fact,
the option the majority does not like -- serve out your sen-
tence -- is a boon to Barron in the light of (1) the Probation
Officer's conclusion that Barron was an armed career
offender facing 360 months to life, and (2) the stipulated fac-
tual basis for the convictions:


       In its case-in-chief the United States would show
      that on April 18, 1986, [appellant] was convicted in
      the Superior Court for the State of Alaska at Fair-
      banks of Misconduct Involving a Controlled Sub-
      stance in violation of A.S. 11.71.030(a)(1). Plaintiff
      would obtain judicial notice of the fact that this
      offense is punishable by imprisonment for a term in


                               3523


      excess of one year; the evidence would show that
      [appellant] was actually sentenced to four years
      imprisonment, this being a presumptive sentence
      under state law.


        The evidence would further show that on
      December 11, 1991, a state search warrant was exe-
      cuted at [appellant's] residence in North Pole,
      Alaska. Found in a safe in his bedroom was approxi-
      mately twenty-one (21) ounces of cocaine, one .380
      caliber Bernardelli semi-automatic handgun, and
      approximately $34,000.00 in cash. A search of
      [appellant] himself incident to arrest also disclosed
      cocaine, $1977 in cash in his vest pocket, and $900
      in "buy" money used by undercover law enforce-
      ment in the pocket of his jeans. Finally, the evidence
      would also show that the search of [appellant's ] resi-
      dence additionally disclosed packaging materials,
      cutting agents and drug paraphernalia as further
      proof of [appellant's] intent to engage in drug traf-
      ficking.


Finally, and with all respect to my colleagues, I must reluc-
tantly point out that the majority opinion treats the govern-
ment's arguments with what comes across as scorn, using
wholly inappropriate language such as:


      Stripped of the contract analogy, the government's
      position is untenable. As a initial matter the govern-
      ment could not have said, "you are innocent of using
      a gun, but if you plead to it, we'll give up charging
      you for your career offenses." Unless the govern-
      ment can do the same thing now by invoking con-
      tract principles, its case is no better.


What? The government's case is no better than using
threats to force "innocent" people to plead guilty? The gov-
ernment has never even remotely suggested such a thing.


                               3524


What the government did say was that Barron might "plead
anew to a section 924(c)(1) offense on the basis of facts
known to him that would support a conviction under Bailey."
The majority's passage unfairly forces words into the govern-
ment's mouth the government has never uttered. It then twists
the government's arguments into a strawman and batters it to
pieces. The government has only argued that Barron's plea
agreement was predicated on a mutual mistake of law and
should be vacated because Barron, who has escaped 60
months of imprisonment he bargained for in lieu of additional
felony charges and a heavier sentence, cannot be allowed to
have his cake and eat it, too. The government seeks only to
make Barron pay for what he did. To support their respectable
argument, the government cites United States v. Smith, 103
F.3d 531, 533-35 (7th Cir. 1996) (district court has authority
to restructure defendant's entire sentencing package where
Bailey has voided one of three counts of conviction); United
States v. Friend, 101 F.3d 557, 558-59 (8th Cir. 1996)

(remanding for possible sentence enhancement under Guide-
lines S 2D1.1(b)(1) after Section 924(c)(1) conviction invali-
dated by Bailey); United States v. Valle , 72 F.3d 210, 217-18
(1st Cir. 1995) (same); United States v. Pollard , 72 F.3d 66,
68-69 (7th Cir. 1995) (same).


What seems completely to escape the majority is that we,
the judges of the Ninth Circuit, are the ones responsible for
Barron's plea in 1992 to the now-troublesome count, because
we held in 1991 in United States v. Torres-Rodriguez, 930
F.2d 1375, 1385 (9th Cir. 1991) -- a year before the plea --
that mere possession of a firearm was sufficient to satisfy
S 924(c). Are we chargeable with herding "innocent" defen-
dants to prison, or has the noble fiction of "Barron was never
guilty" now run amok? If we are not so chargeable, then why
is it necessary or useful at the end of the opinion to wrap the
matter in "the fundamental principle that it is never just to
punish a man or woman for an innocent act?" This concept
has nothing to do with this case, and it is a shot the govern-
ment does not deserve.


                               3525


The majority says also that Bailey "was not a favorable
intervening change in the law." It wasn't? Then how does the
majority explain what the Supreme Court did in Bailey to
Torres-Rodriguez? No matter how one chooses fictionally to
label the process, Bailey changed the law in this circuit, law
relied on in 1992 by the government, the district court, and
Barron when this plea was entered. We told them what the
law was, and they followed our lead. In passing, I would note
that Torres-Rodriguez did not plow new ground. In fact, in it
we said that the result was "supported by Stewart, our leading
decision on section 924(c)(1)." Torres-Rodriguez, 930 F.2d at
1385 (citing United States v. Stewart, 779 F.2d 538, 540 (9th
Cir. 1985)). The author of Stewart was no lesser a judicial
luminary than now-Justice Anthony Kennedy, and I doubt he
thought he was causing "innocent" people to be sent to jail
when he wrote it, no more than did the panel who published
Torres-Rodriguez.


Moreover, the majority denies the government the opportu-
nity to argue under Bousley v. United States, 523 U.S. 614,
118 S. Ct. 1604, 1613 (1998) that Barron procedurally
defaulted on this claim by failing to make it the subject of a
direct appeal. The majority's rationale is that the government
did not rely on this ground in the district court. What the
majority opinion overlooks is (1) that the district court ruled
that by not appealing, Barron had forfeited any defense based
upon a favorable intervening change in the law, and (2) that
Bousley is a new case that corrected our previous misunder-
standing of the rules.


Bousley sends two messages the majority fails to acknowl-
edge. First " `the concern with finality served by the limita-
tion on collateral attack has special force with respect to
convictions based on guilty pleas.' " Id.  at 1610 (quoting
United States v. Timmreck, 441 U.S. 780, 784 (1979)). Sec-
ond, "[i]n cases where the Government has forgone more seri-
ous charges in the course of plea bargaining, petitioner's
showing of actual innocence must also extend to those


                               3526


charges." Id. at 1612. Accordingly, I would analyze this case
through the lens of procedural default as outlined by Bousley.
The district court recognized this problem, and so should we.
Just as Bousley procedurally defaulted, so has Barron, period.
Barron is not "actually innocent." The majority faults the gov-
ernment for not arguing Bousley before Bousley, but they let
Barron off the hook for not arguing Bailey before Bailey.


We have roared like hell when agencies like the INS refuse
to follow our law, even when they point out that other circuits
have different rules. Yet here, the majority seems to say that
by following our lead the district court traffics in the convic-
tion of the innocent.


Accordingly, I concur in most of Judge Graber's well-
reasoned dissent. I suppose all plea agreements will now con-
tain a revivor clause as to dismissed counts, hanging a
"threat" over a defendant's head before any possible appeal;
but to what purpose if an attack by a defendant crafted with-
out a request for a new trial blocks any access by the court to
the real issue. Barron may live in North Pole, but we are Santa
Claus.


                               3527


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