The opinion of the court was delivered by: HAIGHT
HAIGHT, Senior District Judge:
Javier Reyes has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. In his petition, Mr. Reyes alleges that he was wrongfully convicted under 18 U.S.C. § 924(c)(1), which provides enhanced penalties for one who uses or carries a firearm during a drug trafficking crime. Given the standards established by the Supreme Court in Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), the government concedes that petitioner's conviction under § 924(c)(1) must be vacated. However, if the firearms conviction is vacated, the government requests that the petitioner be resentenced on the remaining count of his conviction, conspiracy to distribute heroin, so that the Court may consider whether a previously precluded offense level enhancement for the possession of a weapon is now appropriate under the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines"). For the reasons stated below, the Court grants the government's request to resentence the petitioner on the remaining count of his conviction.
In 1992, petitioner pled guilty to Count One of the indictment, conspiracy to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846, and to Count Ten, using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Following his plea, petitioner was sentenced to 121 months imprisonment on the conspiracy count. This sentence was at the low end of the Guideline range contained in a written plea agreement dated June 23, 1992. In addition, the Court imposed the mandatory five year consecutive sentence under § 924(c)(1). The firearm which provided the factual predicate for petitioner's § 924(c)(1) conviction was found in the trunk of his car when he was arrested. In his plea allocution, the petitioner stated that the gun was for his protection in the course of his drug trafficking activities.
Reyes now moves this Court for a writ of habeas corpus alleging that the facts underlying his indictment on the firearm count are no longer sufficient under Bailey to support his conviction. In its response to the petitioner's motion, the government concedes that petitioner's conviction under § 924(c)(1) is no longer valid. However, the government argues that the petitioner should now be resentenced on Count One based on an offense level that includes a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for the possession of a dangerous weapon in connection with a drug trafficking offense.
According to the government, this enhancement was originally precluded due to double-counting principles. Since the government agrees with petitioner that the separate firearms conviction in this case should be vacated, it argues that resentencing on the conspiracy count is now appropriate so that the offense level enhancement which would have been applied in the absence of petitioner's conviction under § 924(c)(1) can now be applied on resentencing. In essence, the government argues that sentences on related counts are interdependent and constitute a total sentencing package. Accordingly, it contends that petitioner's challenge to a portion of that package under 28 U.S.C. § 2255 brings the entire sentence before the Court for reconsideration.
In response, petitioner argues that the Court lacks jurisdiction to resentence on the conspiracy count since the habeas petition currently before the Court does not challenge that conviction. In the alternative, petitioner argues that the government has no evidence to support the proposed enhancement, other than admissions in the petitioner's plea allocution, which petitioner argues should not be considered if the firearms conviction is vacated. Finally, petitioner puts forth several grounds for downward adjustments and departures should the Court decide to entertain the government's resentencing request.
As a preliminary matter, I agree with the parties that petitioner's conviction for violating 18 U.S.C. § 924(c)(1) must be vacated. See Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). In Bailey, the Supreme Court held that a conviction under 18 U.S.C. § 924(c)(1) could not be sustained without evidence sufficient to show "active employment" of a firearm, including "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire a firearm."
Id. at 508. However, in his plea allocution the petitioner stated only that he had a weapon available for protection in connection with his drug trafficking activities. He further stated that this firearm was found in the trunk of his car when he was arrested. These facts are clearly insufficient to meet the "active employment" standard articulated in Bailey. In fact, the Supreme Court specifically held in Bailey that a defendant cannot be convicted under § 924(c)(1) merely for storing a weapon at or near the site of a drug crime. Id. at 508. Accordingly, the petitioner's conviction and sentence under 18 U.S.C. § 924(c)(1) are hereby vacated.
Section 924(c)(1) mandates the imposition of a five year sentence to be served consecutively to any other term of imprisonment imposed. As a result, the Court of Appeals has recognized that a sentence under § 924(c)(1) and a sentence for the underlying substantive offense are "truly interdependent" and create what is, in essence, a sentencing "package." See McClain v. United States, 676 F.2d 915, 918 (2d Cir.), cert. denied, 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 174 (1982); United States v. Diaz, 834 F.2d 287, 290 (2d Cir. 1987), cert. denied, 488 U.S. 818, 102 L. Ed. 2d 35, 109 S. Ct. 57 (1988) (citing McClain).
This conclusion is supported by the treatment accorded § 924(c)(1) under the Guidelines.
Under U.S.S.G. § 2D1.1(b)(1), the base offense level for crimes involving drugs must be increased by two levels if "a dangerous weapon (including a firearm) was possessed." However, to avoid double counting, the Guidelines specifically direct that this enhancement should not be applied when a sentence under § 924(c)(1) is also imposed. U.S.S.G. § 2K2.4, Commentary Background; see also United States v. Howard, 998 F.2d 42, 48 (2d Cir. 1993). In such a situation, the Guidelines recommend other upward adjustments if necessary to ensure that the "total maximum penalty" is not less than what it would have been in the absence of a conviction under § 924(c)(1). U.S.S.G. § 2K2.4, Application Note 2. As a result, the Guidelines explicitly acknowledge that a conviction under § 924(c)(1) "may affect the offense level for other counts." U.S.S.G. § 3D1.1, Application Note 1.
The clear implication of these Guideline calculations is that the sentence imposed on an underlying offense is necessarily dependent on the existence of a simultaneous conviction under § 924(c)(1). As such, when the two sentences are imposed in conjunction with one another, the result is appropriately described as a sentencing package.
Accordingly, I find that § 2255 provides this Court with the jurisdiction to "correct" not only the sentence imposed under § 924, but also the "truly interdependent" sentence imposed as a result of petitioner's conviction under Count One.
See McClain, 676 F.2d at 918; United States v. Gelb, 944 F.2d 52 (2.d Cir. 1991) (District Court can appropriately increase sentence on unchallenged tax conviction to preserve sentencing intent following successful challenge under § 2255 to erroneous sentence on related count); Pedretti v. United States, 1996 U.S. Dist. LEXIS 6315, 1996 WL 340769 (N.D.N.Y. 1996); cf. United States v. Hernandez, 85 F.3d 1023, 1032 (2d Cir. 1996) (District Court can appropriately consider resentencing remaining counts on remand to determine whether U.S.S.G. § 2D1.1(b)(1) should be ...