At page 340 No legitimate expectation of finality in interdependent convictions14 citing casesno expectation of finality because defendant challenged 1 count of 2 interrelated convictions, thereby placing validity of entire sentencing package at issue
- Piggie, No. 5:25-cv-00019 (E.D. Tex. Mar. 24, 2026).This holding is underscored by the Fifth Circuit’s decision in U.S. v. Benbrook, 119 F.3d 338, 340 (5th Cir. 1997).
- United States v. Marcellas Hoffman, No. 21-2178 (3d Cir. Feb. 6, 2023).unpublishedCir. 1999); United States v. Mata, 133 F.3d 200, 202 (2d Cir. 1998); United States v. McClain, 133 F.3d 1191, 1193-94 (9th Cir. 1998); United States v. Easterling, 157 F.3d 1220, 1223-24 (10th Cir. 1998); United States v. Smith, 115 F.3d 2…
- Commonwealth v. Leggett, 978 N.E.2d 563 (Mass. App. Ct. 2012).published See United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997); United States v. Benbrook, 119 F.3d 338, 340 (5th Cir. 1997); United States v. Honda, 110 F.3d 42, 44 (9th Cir. 1997).
- United States v. Ayers, 759 F. Supp. 2d 945 (S.D. Ohio 2010).published(no expectation of finality because defendant challenged 1 count of 2 interrelated convictions, thereby placing validity of entire sentencing package at issue)
- United States v. Faulkenberry, 759 F. Supp. 2d 915 (S.D. Ohio 2010).published(no expectation of finality because defendant challenged 1 count of 2 interrelated convictions, thereby placing validity of entire sentencing package at issue)
- State v. Tabone, 973 A.2d 74 (Conn. 2009).published (holding that defendant that challenges one conviction has no legitimate expectation of finality in other portions of original sentencing package, even if he already has served term of incarceration associated with other…)
- United States v. Rainwater, 317 F. App'x 431 (5th Cir. 2009).unpublishedSee United States v. Matthews, 312 F.3d 652, 657 (5th Cir.2002); United States v. Benbrook, 119 F.3d 338, 340 (5th Cir.1997).
- United States v. Harrison, 237 F. App'x 911 (5th Cir. 2007).unpublishedThe constitutional protection against double jeopardy “prohibits resentencing only when a defendant has developed a legitimate expectation of finality in his original sentence.” United States v. Benbrook, 119 F.3d 338, 340 (5th Cir.1997).
- United States v. Steven Jay Radmall, 340 F.3d 798 (9th Cir. 2003).publishedSee United States v. Alton, 120 F.3d 114, 116 (8th Cir.1997); United States v. Benbrook, 119 F.3d 338, 340-41 (5th Cir.1997); United States v. Rico, 902 F.2d 1065, 1068 (2d *801 Cir.1990).
- United States v. Townsend, Derrick, 178 F.3d 558 (D.C. Cir. 1999).publishedSee Smith, 115 F.3d at 246 ; United States v. Ben-brook, 119 F.3d 338, 340-41 (5th Cir.1997); Pasquarille, 130 F.3d at 1222 ; Smith, 103 F.3d at 535 ; United States v. Alton, 120 F.3d 114, 115-16 (8th Cir.1997); McClain, 133 F.3d at 1194;…
Show 3 more citing cases
- United States of Am., Appellee-Cross-Appellant v. Benjamin Gary Triestman, Defendant-Appellant-Cross-Appellee, 178 F.3d 624 (2d Cir. 1999).publishedSee, e.g., United States v. Rico, 902 F.2d 1065, 1068-69 (2d Cir.1990) (holding that district court could correct sentence to conform to plea agreement without violating the Double Jeopardy Clause, even though defendant had already been re…
- Gene Garland v. Keith Roy, 477 F. App'x 287 (5th Cir. 2012).unpublishedSee United States v. Benbrook, 119 F.3d 338, 340-41 (5th Cir.1997).
- UNITED STATES of Am., Plaintiff-Appellant, v. Thomas Lavell McCLAIN, Defendant-Appellee, 133 F.3d 1191 (9th Cir. 1998).publishedSee United States v. Benbrook, 119 F.3d 338, 340 (5th Cir.1997); United States v. Alton, 120 F.3d 114, 116 (8th Cir.1997); United States v. Smith, 115 F.3d 241, 247 (4th Cir.1997); United States v. Smith, 103 F.3d 531, 535 (7th Cir.), cert…
At page 339 Resentencing after vacating firearm enhancement conviction11 citing casesnoting that a defendant sentenced under § 924(c) cannot also be subjected to a dangerous weapon enhancement
- United States v. Elkins, No. 24-10753 (5th Cir. Dec. 10, 2025).published(noting that a defendant sentenced under § 924(c) cannot also be subjected to a dangerous weapon enhancement)
- Reece v. United States, No. 3:22-cv-02304 (N.D. Tex. July 23, 2024).See, e.g., United States v. Sauls, 817 F. App’x 14 , 14 (5th Cir. 2020) (discussing, in part, United States v. Rodriguez, 114 F.3d 46, 47-48 (5th Cir. 1997)); United States v. Benbrook, 119 F.3d 338, 339-41 (5th Cir. 1997).
- United States v. Mark Milan, No. 11-41407 (5th Cir. Apr. 15, 2013).publishedUnited States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997).
- United States v. Mark Milan, No. 11-41407 (5th Cir. Apr. 12, 2013).publishedUnited States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997).
- United States v. Cristobal Cervantes, No. 11-41385 (5th Cir. Apr. 12, 2013).publishedUnited States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997).
- United States v. Mark Milan, No. 11-41407 (5th Cir. Jan. 31, 2013).publishedUnited States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997).
- United States v. Cristobal Cervantes, 706 F.3d 603 (5th Cir. 2013).publishedUnited States v. Benbrook, 119 F.3d 338, 339 (5th Cir.1997).
- Bardney v. United States, 982 F. Supp. 1272 (N.D. Ill. 1997).publishedSee United States v. Morris, 116 F.3d 501, 504 (D.C.Cir.1997) (“ § 2255’s grant of power to the court to ‘correct the sentence as may be appropriate’ necessarily includes the power to apply the § 2D1.1(b)(1) enhancement at the same time as…
- United States of Am. v. Raul Elizondo Alvarez.unpublishedUnited States v. Benbrook, 119 F.3d 338, 339-41 (5th * Pursuant to 5TH CIR.
- United States of Am. v. Orlando L. Cushenberry.unpublishedThis court, however, “recently held that [28 U.S.C.] § 2255 vests the district court with the power to resentence a defendant who successfully challenges his § 924(c) conviction only and that the district court may consider imposition of t…
Show 1 more citing case
- United States v. Jones, No. 99-50832 (5th Cir. June 27, 2000).unpublishedSee United States v. Benbrook, 119 F.3d 338, 339-40 (5th Cir. 1997); United States v. Hernandez, 116 F.3d 725, 727-28 (5th Cir. 1997).
At page 341 “the court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of sr after imprisonment.”0 citing cases
Other citing cases
- United States of Am. v. Modesto Gonzalez.published
- United States v. Duffey, 92 F.4th 304 (5th Cir. 2024).published
- United States v. Richard Higgins, 739 F.3d 733 (5th Cir. 2014).published
v.
Benbrook
Plaintiff-Appellant James Robert Ben-brook, Jr. appeals his resentencing by the district court following a successful challenge to his 18 U.S.C. § 924(c) conviction. Finding no error, we affirm.
I.
FACTS AND PROCEEDINGS
A jury convicted Benbrook of unlawful possession of phenylaeetic acid, in violation of 18 U.S.C. § 841(d)(2), and using a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). [1] The district court sentenced him to consecutive terms of imprisonment — forty-six months for the drug conviction and sixty months for the firearm conviction, followed by a three-year period of supervised release, and payment of a mandatory special assessment of $100. We affirmed. [2]
After the United States Supreme Court decided Bailey v. United States, [3] Benbrook filed a habeas corpus petition, pursuant to 28 U.S.C. § 2255, asserting that the evidence was insufficient to support his “use” conviction under § 924(c). The government conceded that this relief should be granted, but urged the district court to resentence Ben-brook on the underlying drug conviction by applying a two-level enhancement to his offense level, pursuant to United States Sentencing Guideline (U.S.S.G.) § 2Dl.l(b)(l), for possession of a dangerous weapon. The district court did just that, vacating Ben-brook’s § 924(c) conviction and resentencing him to fifty-seven months of imprisonment on the drug count, followed by a three-year period of supervised release, and payment of a mandatory special assessment of $50.
Benbrook appealed, asserting that the district court had no jurisdiction to resentence him on the unchallenged, underlying drug conviction. He contends that the resentencing violated the Double Jeopardy Clause.
II.
ANALYSIS
18 U.S.C. § 924(c) and Sentencing Guideline § 2D1.1(b)(1) punish the same conduct — the use of a firearm during the commission of a drug offense. As indicated by their interdependent sentences, § 924(c)’s firearm offense and the underlying drug offense of § 841(d)(2) are inextricably intertwined: Section 924(c) requires the imposition of a five year sentence to be served consecutively to any other term of imprisonment associated with an underlying drug conviction. In like manner, § 2D1.1(b)(1) of the Guidelines requires a two-level increase to a defendant’s base offense level for the possession of a dangerous weapon, including a firearm, during the commission of a drug offense such as that proscribed by § 841(d)(2).
When a defendant is sentenced under § 924(c), however, the sentencing guidelines expressly prohibit application of the § 2D1.1(b)(1) two-level increase, as the level enhancement under those circumstances would result in an impermissible double counting of the firearm offense — once under § 924(c) and again under § 2D1.1(b)(1). [4] Consequently, at the time of the original sentencing under § 924(c), the two-level enhancement of § 2D1.1(b)(1) is not available.
Benbrook argues that the district court had no jurisdiction to resentence him on his unchallenged, underlying drug conviction or to apply the two-level enhancement. Thus Benbrook would handcuff the district court by restricting resentencing to that complained of in his petition and prohibiting reconsideration of the entire sentence. We disagree.
We have recently held that § 2255 vests the district court with the power to resentence a defendant who successfully ehal[*340] lenges his § 924(c) conviction only and that the district court may consider imposition of the two-level enhancement of § 2131.1(b)(1) in resentencing that defendant. [5] We therefore hold that the district court lawfully applied the two-level enhancement in resentencing Benbrook on his unchallenged, underlying drug conviction. Benbrook’s new sentence turns in part on the now vacated § 924(c) conviction, which freed the district court’s hands, where they were tied before, to increase the offense level of Benbrook’s drug conviction for the firearm offense pursuant to § 2D1.1(b)(1).
Neither does the district court’s re-sentencing violate the Double Jeopardy Clause. [6] That constitutional protection prohibits resentencing only when a defendant has developed a legitimate expectation of finality in his original sentence. [7] When a defendant challenges one of interdependent convictions, however, he has no expectation of finality in his original sentence, having put at issue the vahdity of the entire sentence. [8] In seeking relief from his § 924(c) conviction and the consecutive sixty months portion of his sentence attributable to that conviction, Benbrook opened the door for the district court to revisit the entire sentence — not just to vacate that conviction but also to resentence him on the unchallenged, underlying drug conviction.
Benbrook insists that he had a legitimate expectation of finality in his drug-sentence, as he had completed the term of imprisonment originally allocated to that offense. Benbrook’s argument, however, rests on the erroneous assumption that he received separate and distinct sentences for his drug and firearm convictions. To the contrary, he received one aggregate sentence for those interdependent offenses. When Benbrook attacked part of that aggregate sentence — his § 924(c) conviction, he necessarily attacked the whole. Thus, he could have had no legitimate expectation of finality in any portion of the original aggregate sentence. [9] Moreover, assuming that Benbrook has served the term of imprisonment originally allocated to his drug conviction, he has not completed, much less begun, the mandatory three-year period of[*341] supervised release. [10]
III.
CONCLUSION
For the foregoing reasons, we hold that the district court did not err generally in resentencing Benbrook on his unchallenged, underlying drug conviction, nor specifically in applying the two-level enhancement of § 2Dl.l(b)(l). It follows that the district court’s resentencing of Benbrook should be and therefore is
AFFIRMED.
. During trial, the district court granted Ben-brook’s motion for judgment of acquittal on the "carry” prong of § 924(c).
. United States v. Benbrook, 40 F.3d 88 (5th Cir.1994).
. - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).
. See U.S.S.G. § 2K2.4 Commentary Background (1995).
. United States v. Rodriguez, 114 F.3d 46, 47-8 (5th Cir.1997); United States v. Hernandez, 116 F.3d 725, 727 (5th Cir.1997).
. Rodriguez, 114 F.3d at 48; Hernandez, 116 F.3d 725, 727.
. See United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980).
. See Rodriguez, 114 F.3d at 48 (quoting United States v. Colunga, 812 F.2d 196, 198 (5th Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 165, 98 L.Ed.2d 120 (1987)); Hernandez, 116 F.3d 725, 727.
. See United States v. Rico, 902 F.2d 1065, 1068 (2d Cir.1990)(defendant had not completed service of full sentence, as she still faced five-year term of supervised release; therefore, district court could correct sentence to conform to plea agreement without violating the Double Jeopardy Clause); Woodhouse v. United States, 934 F.Supp. 1008, 1014 (C.D.Ill.1996)(defendant who challenges his § 924(c) conviction has no legitimate expectation of finality in any portion of original aggregate sentence, even if he has already served the term of imprisonment allocated to the underlying drug conviction); Merritt v. United States, 930 F.Supp. 1109, 1114 (E.D.N.C.1996)(after overturning § 924(c) conviction, district court could resentence defendant who had served term of imprisonment allocated to drug conviction, as original sentence was an aggregate one, service of which had not been completed); and United States v. Acosta, 1996 WL 445351 at *4 (E.D.Pa. Aug.5, 1996)(unpub-lished opinion) (sentence not fully served where defendant had not completed term of imprisonment imposed for interdependent convictions or four-year term of supervised release). But see United States v. Daddino, 5 F.3d 262, 265 (7th Cir.1993)(defendant, who was convicted of conspiracy and attempted extortion and who had served term of imprisonment and paid fines, but had not completed period of supervised release, had a legitimate expectation of finality in the completed part of the sentence); Warner v. United States, 926 F.Supp. 1387, 1392 (E.D.Ark.1996)(defendant enjoys legitimate expectation of finality in completed term of lawful incarceration for underlying drug conviction; thus, district court's resentencing following defendant’s successful challenge to his § 924(c) conviction would violate Double Jeopardy and Due Process Clauses; no mention of supervised release); and United States v. Pecina, 952 F.Supp. 409, 412 n. 2 (N.D.Tex.1996)(court need not address the situation in which sentence on underlying drug convictions has been completed prior to vacation of § 924(c) conviction, "a situation in which the constitutionality of resentencing would be far more questionable").
. A period of supervised release is part of the defendant's sentence. See 18 U.S.C. § 3583(a)(1994)("The court, in imposing a sentence to a term of imprisonment ..., may include as part of the sentence a requirement ... of supervised release.”) and U.S.S.G. § 5Dl.l(a)(1995)("The court shall order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed, or when required by statute.”).