release. Finally, this Court imposed mandatory special assessments of $ 250 on Mpounas and $ 200 on Gordils.
On January 30, 1991, this Court denied petitioners' respective motions for retrial based on newly discovered evidence pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Petitioners appealed their respective convictions and this Court's denial of their respective motions for a new trial. The Second Circuit affirmed this Court's rulings in all respects in United States v. Gordils, 982 F.2d 64 (2d Cir. 1992), cert. denied, 507 U.S. 1054 (1993).
Pursuant to Section 2255, this year both petitioners filed petitions for habeas corpus to vacate their Count Five convictions and sentences under Section 924(c) in light of the United States Supreme Court's decision in Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), as well as several other grounds. In Bailey, the Supreme Court limited the scope of the term "use" in Section 924(c), which criminalizes the "use" of a firearm in a narcotics offense. The Court held that Section 924(c) "requires evidence sufficient to show an active employment of the firearm by the defendant, a use which makes the firearm an operative factor in relation to the predicate offense." U.S. , 116 S. Ct. at 505. 2d 472. "Active employment," the Court elaborated, "certainly includes brandishing, displaying, bartering, striking, and, of course, firing or attempting to fire, a firearm." Id. at , 116 S. Ct. at 508. Bailey thus represents a substantial departure from the Second Circuit's firmly established holdings that active use was not required to sustain a conviction under Section 924(c). See, e.g., United States v. Fermin, 32 F.3d 674, 678 (2d Cir. 1994), cert. denied, U.S. , 115 S. Ct. 1145 (1995); United States v. Medina, 944 F.2d 60, 66-67 (2d Cir. 1991), cert. denied, 503 U.S. 949 (1992); United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, 493 U.S. 858 (1989). The Government conceded that, in light of Bailey, petitioners' respective Section 924(c) convictions should be vacated. (Government's Opp. Memo at 16-27.)
In separate Orders dated July 16, 1996, this Court vacated each petitioner's conviction under Section 924(c), pursuant to Bailey. In those Orders, this Court also found that petitioners should be resentenced on the remaining counts on which they were convicted and that this Court should consider whether to enhance petitioners' offense levels under Guidelines Section 2D1.1(b)(1) for possession of a firearm in connection with a drug trafficking offense.
Before this Court resentenced petitioners, it resolved two issues: (1) whether petitioners' offense level could be enhanced under Section 2D1.1(b)(1) of the Sentencing Guidelines; and (2) whether Mpounas could challenge his Criminal History Category, which this Court calculated at his original sentencing in 1990.
A. Two Level Enhancement
The Government requested that petitioners be resentenced on their narcotics convictions, and seeks to add two levels to each of their total offense levels pursuant to Guidelines Section 2D1.1(b)(1). Guidelines Section 2D1.1(b)(1) mandates that a two level enhancement be imposed "if a dangerous weapon (including a firearm) was possessed " during a drug offense. U.S.S.G. 2D1.1(b)(1) (emphasis added). The two level enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1 Application Note 3. "The defendant need not have had personal possession, or even actual knowledge of the weapon's presence; the enhancement is required so long as the possession of the firearm was reasonably foreseeable to the defendant." United States v. Stevens, 985 F.2d 1175, 1188 (2d Cir. 1993) (internal quotations omitted).
Under the terms of the Sentencing Guidelines, however, the two level enhancement was unavailable to the Government at the time of petitioners' original sentencing. When a defendant is convicted and sentenced for "use" of a firearm in violation of Section 924(c), the Sentencing Guidelines' ban on "double counting" prohibits courts from also enhancing that defendant's sentence under Guidelines Section 2D1.1(b)(1) for "possession" of a firearm. See U.S.S.G. § 2K2.4, Application Note 2; United States v. Howard, 998 F.2d 42, 48 (2d Cir. 1993). The evidence at trial established that these petitioners "possessed" firearms during their crimes. However, because petitioners were convicted and sentenced for their Section 924(c) violations, this Court did not enhance their sentences under Guidelines Section 2D1.1(b)(1).
In their submissions to this Court, petitioners do not contest that they "possessed" firearms during the commission of their narcotics offenses. However, now that their Section 924(c) convictions no longer pose "double counting" obstacles, petitioners do dispute this Court's authority on resentencing to add a two level enhancement to their sentences under Guidelines Section 2D1.1(b)(1). In support of their position, petitioners rely upon Title 18, United States Code, Section 3582(c)(1)(B), which provides that "the court may not modify a term of imprisonment once it has been imposed except that[,] in any case[,] the court may modify an imposed term of imprisonment to the extent otherwise permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." (Letter from Edward S. Zas, Esq., to the Hon. David N. Edelstein, United States District Judge for the Southern District of New York, Gordils and Mpounas v. United States, 96 Civ. 3664 and 96 Civ. 1747 ("Zas Letter") at 2 (Oct. 2, 1996).) Petitioners contend that, because Fed. R. Crim. P. 35 is inapplicable to this case, Section 2255 is the only other statute which might confer jurisdiction upon this Court to modify petitioners' sentences. Id. Petitioners then argue that Section 2255 does not confer such jurisdiction in the case at bar.
Petitioners' argument rests almost entirely upon their construction of Section 2255, which reads, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the grounds 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 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.