On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-07-cr-00147-001) District Judge: Honorable John E. Jones, III
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges
This court previously vacated one of the two counts of conviction of Nelson Diaz under 18 U.S.C. § 924(c) because it was not based on a second predicate offense. On remand to the District Court for resentencing, the District Court rejected Diaz's contention that it was required to merely subtract the 120-month sentence associated with the vacated count. The Court held that it was permitted to resentence de novo. Diaz appeals and the case is now before the same panel of judges who vacated Diaz's sentence in the first instance. In addition, we directed the parties to address the Supreme Court's recent decision in Pepper v. United States, 131 S. Ct. 1229 (2011).
Nelson Diaz was convicted by a jury of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and two counts of possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). In crafting the original sentence, the District Court was guided by § 4B1.1(c) of the Sentencing Guidelines. Section 4B1.1(c) provides that for a defendant convicted of multiple counts, at least one of which is a conviction other than § 924(c), the applicable Guideline range is the greater of "the guideline range that results by adding the mandatory minimum consecutive penalty required by the 18 U.S.C. § 924(c) . . . count(s) to the minimum and the maximum of the otherwise applicable guideline range" for the non- § 924(c) count(s) of conviction, or 360 months to life. In other words, § 4B1.1(c) provides a floor Guideline range of 360 months to life for career offenders convicted of at least one § 924(c) count.*fn1
Pursuant to this provision, the District Court determined, and the parties agreed, that the applicable Guideline range was the default Guideline of 360 to life. With this range in mind, the District Court evaluated the § 3553(a) factors and declined to vary from the Guideline range. Accordingly, the District Court imposed a sentence of 480 months-the sum of the 240-month sentence for the § 841(a)(1) distribution offense and ten years (or 120 months) for each of the two § 924(c) counts. This sentence was within the Guideline range of 360 years to life. Defense counsel objected to the imposition of a sentence on the second § 924(c) count on double jeopardy grounds but the District Court denied Diaz's objection.
Diaz appealed the conviction and sentence associated with the second § 924(c) firearm count. This court in Diaz I agreed with Diaz and held that the second § 924(c) count must be based on a separate underlying drug offense. United States v. Diaz, 592 F.3d 467, 475 (3d Cir. 2010) (Diaz I).
We discussed our remedy for the double jeopardy violation on two occasions in the opinion. At the conclusion of the discussion section on the double jeopardy claim, we stated, "[f]or the reasons set forth, we will vacate one of Diaz's two § 924(c) convictions and remand to the District Court for resentencing. See [United States v.] Taylor, 13 F.3d [986,] 994 [6th Cir. 1994)] (prescribing the appropriate remedy in this context)." Diaz I, 592 F.3d at 475. Then, in the concluding section of the opinion, we stated, "[f]or the reasons set forth . . . [w]e will vacate one of the two § 924(c) violations and remand this case to the District Court for resentencing." Id. at 476.
On remand, Diaz contended that this language in Diaz I was a specific instruction to nullify or subtract the 120-month sentence associated with the vacated § 924(c) conviction. The District Court rejected this contention and held that because the original sentence treated the counts of conviction as interdependent, de novo sentencing was appropriate so long as the remanding court did not specifically direct otherwise. The District Court held that the language from Diaz I did not amount to a specific instruction to merely subtract 120 months from the original sentence. Accordingly, the District Court resentenced Diaz de novo.
Notwithstanding the fact that one of the § 924(c) counts had been vacated, the applicable Guideline range under § 4B1.1 was still 360 to life. However, the District Court refused the government's request to impose an identical 480-month sentence. The District Court explained that "the Third Circuit's mandate has to mean something besides that I simply cookie cutter resentence you to the same term of imprisonment that you had." App. at 113. In other words, the District Court believed it was necessary "to give some consideration to the fact that we're dealing with one less conviction here." App. at 115.
Although the District Court noted that the second § 924(c) conviction was vacated, it held that "that doesn't mean that I can't take cognizance of the behavior, the conduct for the purposes of sentencing, and I must do that even though technically the conviction ceases to stand." App. at 111. Accordingly, based largely on the fact that there was one less conviction, the Court reduced Diaz's sentence from the original 480 months to ...