Opposition Brief — Eddie David Cox, Petitioner v. United States

No. 20-5355

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

EDDIE DAVID COX, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

BRIAN C. RABBITT

Acting Assistant Attorney General

DANIEL J. KANE

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

the

district

court

violated

the

Double

Jeopardy

Clause by resentencing petitioner on all of the remaining counts

of

conviction

underlying

his

original

sentencing

package

--

including counts for which he had already served the term of

imprisonment specified in the initial sentencing order -- after

petitioner’s successful efforts to vacate sentence enhancements on

two of the remaining counts.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (C.D. Ill.):

Cox v. Smith, No. 08-cv-1266 (June 23, 2009) (order dismissing

petition under 28 U.S.C. 2241)

Cox v. Krueger, No. 17-cv-1099 (Oct. 19, 2017) (order granting

petition under Section 2241)

United States District Court (W.D. Mo.):

United States v. Cox, No. 89-cr-196 (Mar. 5, 1990) (original

judgment)

Cox v. United States, No. 94-cv-993 (Nov. 6, 1996) (order

granting in part motion under 28 U.S.C. 2255)

Cox v. United States, No. 94-cv-993 (Apr. 3, 2012) (order

denying motion for relief under Federal Rule of Civil

Procedure 59(e))

Cox v. United States, No. 16-cv-666 (Nov. 4, 2016) (order

dismissing second or successive Section 2255 motion)

United States v. Cox, No. 89-cn-196 (Mar. 8, 2018) (judgment

following resentencing)

United States Court of Appeals (7th Cir.):

Cox v. Smith, No. 09-3676 (June 11, 2010) (dismissing appeal

from dismissal of Section 2241 petition)

United States Court of Appeals (8th Cir.):

United States v. Cox, No. 90-1386 (Oct. 4, 1991) (direct

appeal)

Cox v. United States, Nos. 98-2145 and 98-2146 (Apr. 5, 2000)

(affirming partial grant of Section 2255 relief and denial of

Section 3582(c)(2) relief)

Cox v. United States, No. 12-1939 (May 21, 2012) (affirming

order denying Rule 59(e) motion)

Cox v. United States, No. 13-1845 (Apr. 26, 2013) (denying

certificate of appealability)

(II)

Cox v. United States, No. 16-2029 (Oct. 6, 2016) (denying

authorization to file second or successive Section 2255

motion)

United States v. Cox, No. 18-1630 (Mar. 25, 2019) (affirming

judgment following resentencing)

United States v. Cox, No. 18-1630 (Mar. 6, 2020) (affirming

judgment following remand)

Supreme Court of the United States:

Cox v. United States, No. 91-6890 (Mar. 9, 1992) (direct

appeal)

Cox v. United States, No. 10-6852 (Nov. 8, 2010) (denying

petition for writ of certiorari from Nos. 98-2145 and 98-2146

(8th Cir.))

Cox v. United States, No. 19-5027 (Oct. 15, 2019) (granting,

vacating, and remanding in light of Rehaif v. United States,

139 S. Ct. 2191 (June 21, 2019))

(III)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-5355

EDDIE DAVID COX, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. 2-9, 11-13)

are not published in the Federal Reporter but are reprinted at 766

Fed. Appx. 423 and 796 Fed. Appx. 322. 1

JURISDICTION

The judgment of the court of appeals was entered on March 6,

2020.

The petition for a writ of certiorari was filed on August

The appendix to the petition for a writ of certiorari is

not consecutively paginated. This brief refers to the pages as if

they were consecutively paginated, with the appendix cover page as

page 1.

1

2

3, 2020.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Western District of Missouri, petitioner was convicted on

twelve counts, including conspiracy to distribute cocaine, in

violation of 21 U.S.C. 841(a)(1) (1988) and 21 U.S.C. 846 (Count

1); possession of cocaine with intent to distribute, in violation

of

21

U.S.C.

possession

of

841(a)(1)

(1988)

(Count

a

after

a

firearm

prior

3);

and

felony

two

counts

of

conviction,

in

violation of 18 U.S.C. 922(g)(1) and 924(e)(1) (Counts 5 and 8).

3/5/90 Judgment 1-1A. Petitioner was sentenced to concurrent terms

of life imprisonment on Counts 1, 5, and 8, and shorter concurrent

terms of imprisonment on each remaining count.

Id. at 2-2A.

The

court of appeals reversed petitioner’s conviction on Count 1 and

otherwise affirmed, 942 F.2d 1282, and this Court denied a petition

for a writ of certiorari, 503 U.S. 921.

After many unsuccessful attempts to challenge his convictions

and sentence -- and one successful motion under 28 U.S.C. 2255

that resulted in a reduced sentence on Count 3 -- petitioner filed

a successful habeas petition under 28 U.S.C. 2241 in the United

States District Court for the Central District of Illinois.

Pet. App. 3.

See

That court vacated petitioner’s sentences on Counts

5 and 8 and ordered that petitioner be transferred to the Western

District of Missouri for resentencing.

Ibid.

There, the district

3

court resentenced petitioner to an aggregate term of 966 months of

imprisonment, to be followed by three years of supervised release.

Ibid.; 3/8/18 Judgment 2-3.

The court of appeals affirmed.

Pet.

App. 2-9. After this Court vacated the panel decision and remanded

for further consideration in light of Rehaif v. United States, 139

S. Ct. 2191 (2019), see 140 S. Ct. 396, the court of appeals

affirmed once more and reinstated its vacated opinion, Pet. App.

11-13.

1.

petitioner

Six

different

impersonated

times

a

during

the

summer

of

1989,

law-enforcement

agent

while

in

possession of a firearm, typically while engaged in drug-related

activity.

Presentence Investigation Report (PSR) ¶ 7.

During a

traffic stop, he told police officers that he was an undercover

officer in the Department of Justice, and officers later found a

gun under the front seat.

PSR ¶ 8.

He twice robbed a drug dealer

in his home, stealing money, firearms, and approximately 70 grams

of cocaine, all under the pretense that he was an agent with the

Federal Bureau of Investigation.

PSR ¶¶ 9-10, 12.

He returned to

the

more,

pretending

drug

dealer’s

home

twice

each

time

to

investigate narcotics trafficking and threatening the occupants.

PSR ¶¶ 13-16.

And he later posed as an agent with the Drug

Enforcement Administration when he asked someone in a parking lot

where he could find people dealing drugs.

PSR ¶ 17.

In November 1989, a grand jury in the Western District of

Missouri returned a 12-count indictment charging petitioner with

4

conspiring to distribute and to possess with intent to distribute

cocaine, in violation of 21 U.S.C. 841(a)(1) (1988) and 21 U.S.C.

846 (Count 1); two counts of impersonating an officer or employee

of the United States and acting as such, in violation of 18 U.S.C.

912

(Counts

2

and

12);

possessing

cocaine

with

intent

to

distribute, in violation of 21 U.S.C 841(a)(1) (1988) (Count 3);

two counts of Hobbs Act robbery, in violation of 18 U.S.C. 1951

(Counts 4 and 7); two counts of possessing a firearm as a felon,

in violation of 18 U.S.C. 922(g)(1) and 18 U.S.C. 924(e)(1) (1988)

(Counts 5 and 8); and four counts of impersonating an officer or

employee of the United States and conducting a search, in violation

of 18 U.S.C. 913 (Counts 6, 9-11).

Indictment 1-7.

Following a jury trial, petitioner was convicted on all

counts.

3/5/90 Judgment 1.

Because the district court found that

petitioner had at least three prior convictions for “violent

felon[ies]” or “serious drug offense[s]” that were “committed on

occasions

different

from

one

another,”

18

U.S.C.

924(e),

it

determined that the Armed Career Criminal Act of 1984 (ACCA), 18

U.S.C. 924(e), specified a statutory sentencing range of 15 years

to life imprisonment on Counts 5 and 8, see PSR ¶ 60; 3/5/90 Sent.

Tr. 13, 27-28.

In light of petitioner’s lengthy criminal history

-- including prior convictions for kidnapping, bank robbery, and

conspiring to traffic narcotics, see PSR ¶¶ 47, 51-52 -- the

district court sentenced petitioner to life imprisonment.

3/5/90 Sent. Tr. 33-38.

See

In particular, the district court imposed

5

concurrent life sentences on Counts 1, 5, and 8; concurrent terms

of 36 months of imprisonment on Counts 2, 6, and 9-12; a concurrent

term of 360 months of imprisonment; and concurrent terms of 240

months of imprisonment on Counts 4 and 7, all to be followed by

concurrent terms of supervised release on Counts 1 and 3.

Judgment

2-3.

The

court

of

appeals

reversed

3/5/90

petitioner’s

conviction on Count 1 but otherwise affirmed his convictions and

sentence.

942 F.2d 1282, 1285-1286.

for a writ of certiorari.

2.

This Court denied a petition

503 U.S. 921.

In 1994, petitioner filed a motion to vacate, set aside,

or correct his sentence under 28 U.S.C. 2255. See 94-cv-993 Docket

entry No. 1 (W.D. Mo. Oct. 18, 1994). After the case was reassigned

to a new district judge, see 94-cv-993 Docket entry No. 30 (W.D.

Mo. May 8, 1996); id. No. 33 (W.D. Mo. Aug. 9, 1996), the district

court reduced petitioner’s sentence on Count 3 to 210 months of

imprisonment, to be followed by three years of supervised release,

but otherwise denied relief.

(W.D. Mo. Nov. 6, 1996).

See 94-cv-993 Docket entry No. 37

The court of appeals affirmed.

210 F.3d

378, 2000 WL 349283 (Tbl.).

Petitioner thereafter filed a series of unsuccessful motions

and applications challenging his convictions and sentence.

See

Gov’t

and

C.A.

Br.

7-9

(cataloging

motions,

appeals,

dispositions); see also 08-cv-1266 Docket entry No. 15 (C.D. Ill.

June 23, 2009) (dismissing Section 2241 petition).

In one such

application, filed in 2016, petitioner sought leave to file a

6

successive Section 2255 motion on the ground that he no longer

qualified for a sentence under the ACCA on Counts 5 and 8 because,

among other things, a prior Kansas conviction for kidnapping did

not qualify as a “crime of violence” in light of Johnson v. United

States, 576 U.S. 591 (2015), and a prior conviction for conspiracy

to conceal heroin did not qualify as a “serious drug offense”

because it predated the Controlled Substances Act, 21 U.S.C. 801

et seq.

See Pet. App. 3; 16-2029 Docket entry (8th Cir. Apr. 28,

2016).

The court of appeals denied the application.

See Pet.

App. 3; 16-2029 Docket entry (8th Cir. Oct. 6, 2016).

In 2017, petitioner filed a Section 2241 petition in the

Central District of Illinois, raising the same argument that he

had attempted to raise in his 2016 application to file a successive

Section 2255 motion -- namely, that his kidnapping and heroin

conspiracy convictions did not support a sentence enhancement

under the ACCA.

See No. 17-1099, 2017 WL 4706898 (Oct. 19, 2017).

The district court in the Central District of Illinois granted the

motion and vacated petitioner’s ACCA sentences on Counts 5 and 8.

Id. at *6; Pet. App. 3.

It further ordered that petitioner be

transferred to the Western District of Missouri for resentencing.

Ibid.

3.

The district court in the Western District of Missouri

conducted a de novo resentencing.

Pet. App. 3.

At the hearing,

the district court acknowledged petitioner’s argument that he

should be resentenced solely on Counts 5 and 8, but the court found

7

that it had the “authority to take into consideration all counts”

and that doing so would be “reasonable and appropriate herein based

upon the statutory considerations.” 3/7/18 Sent. Tr. 3. The court

also recognized that the current guidelines recommendation for

petitioner’s offenses, taken as a whole, was 168 to 210 months.

Ibid.

The court found, however, that a much longer sentence was

appropriate

in

light

of

petitioner’s

“lengthy

and

extensive

criminal history,” which was “extremely repetitive,” and involved

conduct that was both “violent” and “extremely destructive.”

at 6.

Id.

The court observed in particular that, before petitioner’s

incarceration for the relevant offenses, he had shown a “lack of

willingness to reform [his] conduct upon sentence after sentence,”

which suggested that a life sentence was appropriate.

Id. at 7.

Accordingly, after “taking into consideration all of the

factors set forth under 18 U.S.C. Section 3553,” 3/7/18 Sent. Tr.

7, the court sentenced petitioner to an aggregate term of 966

months of imprisonment, comprising concurrent terms of 36 months

of imprisonment on Counts 2, 6, and 9-12; a consecutive term of

210 months on Count 3; consecutive terms of 240 months on Counts

4 and 7; and consecutive terms of 120 months on Counts 5 and 8.

Id. at 8; 3/8/18 Judgment 2.

The court also imposed concurrent

three-year terms of supervised release on each count. 3/7/18 Sent.

Tr. 9; 3/8/18 Judgment 3.

The court added that if it were limited

to resentencing only on Counts 5 and 8, it would have imposed

consecutive 120-month terms on each of those counts, to be followed

8

by concurrent three-year terms of supervised release. 3/7/18 Sent.

Tr. 8-9.

4.

The court of appeals affirmed.

Pet. App. 2-9.

It

observed that the case was “in an odd procedural posture” because

the district court in the Central District of Illinois had left

the district court in the Western District of Missouri with “the

unfortunate task of conducting a resentencing according to an order

from the Central District that is in tension with [the Eighth

Circuit’s] mandates affirming [petitioner’s] sentence and denying

[his] application for leave to file a successive § 2255 motion.”

Id. at 3-4.

Nevertheless, the court of appeals determined that

the

court

district

in

the

Western

District

of

Missouri

had

authority to resentence petitioner because the district court did

not “re-examine” any issue already decided by the Eighth Circuit.

Id. at 4.

As relevant here, the court of appeals rejected petitioner’s

contention that the Double Jeopardy Clause permitted resentencing

only on Counts 5 and 8 because he had finished serving his terms

of imprisonment on the other counts.

Pet. App. 5.

The court

observed that it had previously recognized that “‘resentencing on

the served portion of

. . .

not

jeopardy,’”

violate

double

two interdependent sentences does

and

that

a

prisoner

who

“collaterally attacks a portion of a judgment reopens the entire

judgment ‘and cannot selectively craft the manner in which the

court corrects that judgment.’”

Ibid. (quoting United States v.

9

Alton, 120 F.3d 114, 116 (8th Cir.), cert. denied, 522 U.S. 976

(1997)).

The court also rejected petitioner’s claims that his

sentence was procedurally and substantively unreasonable.

Id. at

5-7.

Judge Kelly concurred in part and dissented in part.

App. 7-9.

Pet.

She agreed with the majority that the district court

had the authority to resentence petitioner and to “unbundle Cox’s

sentencing package and resentence him on all counts.”

Id. at 7.

But she would have found the sentence substantively unreasonable,

on

the

theory

that

the

district

court

erred

in

petitioner’s original sentence at the resentencing.

5.

that

considering

Id. at 7-9.

Petitioner filed a petition for a writ of certiorari,

asserted,

among

other

things,

that

he

should

have

the

opportunity to challenge his convictions on Count 5 and 8 in light

of Rehaif, supra, and that this Court should resolve a purported

circuit conflict as to whether the Double Jeopardy Clause bars a

package resentencing that includes revised sentences on counts for

which the sentence imposed in the original package has expired.

19-5027 Pet. 16-17, 19-20.

This Court granted the petition,

vacated the court of appeals’ judgment, and remanded the case for

further consideration in light of Rehaif.

140 S. Ct. 396.

On remand, the court of appeals rejected petitioner’s Rehaif

claim, observing that because petitioner had raised the issue for

the first time on appeal, it could be reviewed only for “plain

error.”

Pet. App. 12.

It found that petitioner could not satisfy

10

that standard because he was unable to demonstrate that any error

affected his substantial rights.

Ibid.

The court of appeals

therefore reinstated its vacated opinion affirming the district

court’s resentencing determination.

Id. at 13.

ARGUMENT

Without specifically arguing that the court of appeals erred

in its disposition of his appeal, petitioner contends (Pet. 11)

that this Court should grant review because the decision below

conflicts with decisions of the Fourth Circuit concerning whether

the Double Jeopardy Clause prevents a court from resentencing a

defendant on counts that were part of an original sentencing

package if the sentence for those counts in the original package

has expired at the time of the resentencing.

The court of appeals

correctly affirmed petitioner’s current sentence, and neither the

Fourth Circuit nor any other court of appeals that has addressed

the issue would find that petitioner’s resentencing violated the

Double Jeopardy Clause.

This Court has denied review of another

petition for a writ of certiorari presenting a similar question,

Rozier v. United States, 568 U.S. 1196 (2013) (No. 12-7008), and

the same result is warranted here.

1.

The court of appeals correctly affirmed the district

court’s decision to resentence petitioner on all of his counts

after the original sentences for two of his offenses were vacated.

Pet. App. 5.

11

As this Court observed in Greenlaw v. United States, 554 U.S.

237 (2008), when a defendant is found guilty on a multi-count

indictment,

the

resulting

sentences

are

often

viewed

as

a

“package,” such that a “successful attack by a defendant on some”

counts of conviction necessitates resentencing on all remaining

counts to ensure that the new aggregate sentence is “adequate to

satisfy the sentencing factors in 18 U.S.C. 3553(a).”

Id. at 253.

The Court recognized that a package resentencing of this kind may

sometimes result in a new aggregate sentence identical to the

original, meaning that a “defendant ultimately may gain nothing

from his limited success on appeal.”

Id. at 254.

But the Court

observed that revisiting all of the components of an original

sentencing package “ensures that the sentence ‘will suit not merely

the offense but the individual defendant.’”

Ibid. (quoting United

States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.) (en banc)

(in turn quoting Wasman v. United States, 468 U.S. 559, 564

(1984)), cert. denied, 493 U.S. 890 (1989)).

Accordingly, the

courts of appeals have uniformly held that when a district court

on collateral review vacates a defendant’s sentences on some counts

forming part of a broader package, the district court may revisit

the sentences on other counts to “review the efficacy of what

remains in light of the original [sentencing] plan.” United States

v.

Townsend,

178

F.3d

558,

567

(D.C.

Cir.

1999)

(citations

omitted); see ibid. (citing cases from every numbered circuit).

12

Consistent with that approach, the courts of appeals have

repeatedly rejected the assertion that the Double Jeopardy Clause

prohibits

a

district

court

from

resentencing

a

defendant

on

interdependent sentences when one or more of the sentences that

compose the sentencing package are vacated on collateral review.

See Pet. App. 5.

a

court

from

proceeding

finality

increasing

if

in

The Double Jeopardy Clause generally prohibits

the

his

a

defendant’s

defendant

original

has

a

sentence

legitimate

sentence.

See

in

a

later

expectation

United

States

of

v.

DiFrancesco, 449 U.S. 117, 139 (1980).

But a defendant who

challenges

convictions

one

of

his

interdependent

“has

no

expectation of finality in his original sentence, having put at

issue the validity of the entire sentence.”

United States v.

Benbrook, 119 F.3d 338, 340 (5th Cir. 1997); accord, e.g., United

States v. Radmall, 340 F.3d 798, 801 (9th Cir. 2003); United States

v. Easterling, 157 F.3d 1220, 1224 (10th Cir. 1998); United States

v. Watkins, 147 F.3d 1294, 1297-1298 (11th Cir. 1998).

Therefore,

“there is no double jeopardy bar to enhancing an unchallenged part

of an interdependent sentence to fulfill the court’s original

intent.”

Pasquarille v. United States, 130 F.3d 1220, 1222-1223

(6th Cir. 1997) (quoting United States v. Harrison, 113 F.3d 135,

138 (8th Cir. 1997)); accord, e.g., Radmall, 340 F.3d at 801;

Townsend, 178 F.3d at 569-570; United States v. Triestman, 178

F.3d 624, 630-632 (2d Cir. 1999); Watkins, 147 F.3d at 1297-1298;

13

United States v. Rodriguez, 112 F.3d 26, 31 (1st Cir.), cert.

denied, 522 U.S. 895 (1997).

Before the court of appeals, petitioner did not dispute that

the Double Jeopardy Clause generally permits package resentencing;

instead

he

argued

only

that

his

particular

resentencing

was

unconstitutional because he had “fully discharged” his sentences

on all counts other than Counts 5 and 8. Pet. App. 5. In rejecting

that contention, the court of appeals relied on its precedent

establishing that resentencing even “on the served portion” of a

sentencing

package

“does

not

violate

double

jeopardy.”

Id.

(quoting United States v. Alton, 120 F.3d 114, 116 (8th Cir.),

cert.

denied,

522

interrelationship

U.S.

976

between

[a

(1997)).

That

defendant’s]

is

because

sentences

“the

on

the

separate counts mean[s] that his expectations regarding finality

. . .

can relate only to his entire sentence, not the discrete

parts.”

Radmall, 340 F.3d at 801 (citation and internal quotation

marks omitted).

2.

.

In his petition for certiorari review, petitioner does

not attempt to identify any error in the merits of the court of

appeals’ double-jeopardy

(Pet.

11)

that

determination.

certiorari

is

Instead,

warranted because

he

the

contends

court

of

appeals’ determination “conflicts with decisions from the Fourth

Circuit.”

But neither the Fourth Circuit nor any other court of

appeals that has reached the issue would find that the resentencing

in this case violated the Double Jeopardy Clause.

14

Every court of appeals to address the issue has agreed that

the

Double

resentencing

Jeopardy

a

Clause

defendant

on

does

not

all

of

prevent

the

a

court

from

extant

counts

that

constitute a sentencing package, even if the defendant has finished

serving one or more of those interdependent sentences.

See, e.g.,

Radmall, 340 F.3d at 801; Townsend, 178 F.3d at 569-570; Triestman,

178 F.3d at 631-632; Easterling, 157 F.3d at 1224; Pasquarille,

130 F.3d at 1222-1223; Benbrook, 119 F.3d at 340; Alton, 120 F.3d

at 116; United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996),

cert. denied, 520 U.S. 1248 (1997).

The Fourth Circuit is no exception.

Petitioner cites (Pet.

11) United States v. Silvers, 90 F.3d 95 (4th Cir. 1996), for the

proposition that “once a defendant fully serves a sentence for a

particular crime, the Double Jeopardy Clause’s bar on multiple

punishments prevents any attempt to increase thereafter a sentence

for that crime.”

Id. at 101.

But the Fourth Circuit has since

clarified that a defendant has not “fully discharged” a sentence

for a particular count if that sentence was imposed as part of a

“unified term of imprisonment” that the defendant has not yet

completed.

United States v. Smith, 115 F.3d 241, 247 (4th Cir.),

cert. denied, 522 U.S. 922 (1997).

Thus, in Smith, the Fourth

Circuit has rejected a double-jeopardy challenge where a defendant

was resentenced on three counts after he had finished serving the

37-month sentences for two of those counts.

Ibid.

The court

recognized that, where the “sentencing package theory” applies,

15

“resentencing

of

the

defendant

d[oes]

not

implicate

double

jeopardy,” even where the defendant has completed the term of

imprisonment for one or more of the underlying counts.

Ibid.

The

court explained that because the district court had imposed an

“aggregate” 97-month sentence for all three counts, the defendant

had not “fully discharged” his sentence -- and had no “‘expectation

of finality’” for double-jeopardy purposes -- until that aggregate

sentence was completed.

Id. at 246-247 (citation omitted); see

also United States v. Douthit, 133 F.3d 918, 1998 WL 23079, at *1

& n.* (4th Cir. 1998) (Tbl.) (per curiam) (applying Smith’s holding

and

noting

that

Smith

supersedes

any

contrary

suggestion

in

Silvers); United States v. Butler, 122 F.3d 1063, 1997 WL 576534,

at *1 & n.* (4th Cir.) (Tbl.) (per curiam) (same), cert. denied,

522 U.S. 1034 (1997). 2

It

is

undisputed

here

that

petitioner

was

originally

sentenced to an “aggregate” sentence, Smith, 115 F.3d at 247, of

life

imprisonment.

initially

“simply

Indeed,

sentence[d]

the

original

[petitioner]

sentencing

court

to

citing

life,”

petitioner’s lengthy criminal history and the need to protect the

public from such offenders.

3/5/90 Sent. Tr. 33.

It was only

Petitioner also cites (Pet. 11) United States v.

Olivares, 292 F.3d 196, cert. denied, 537 U.S. 888 (2002), in which

the Fourth Circuit rejected a double-jeopardy challenge brought by

a defendant who was retried and resentenced after his sole count

of conviction was vacated, id. at 197-200. The court in Olivares

explained that Smith and Silvers had no bearing on the outcome in

that case because those cases, like petitioner’s, involved

resentencing on counts that were not vacated. See id. at 199.

2

16

after the government reminded the district court to specify a

sentence for each count that the court acknowledged and fulfilled

its requirement to do so.

Id. at 35-37.

Thus, even in the Fourth

Circuit, petitioner’s double-jeopardy challenge would have failed.

3.

In any event, this case would be an unsuitable vehicle

in which to address the question presented.

As the court of

appeals observed, the case arises in an “odd procedural posture”

because the resentencing was carried out by a district court in

the Eighth Circuit pursuant to a grant of habeas relief by a

district court in the Seventh Circuit, based on a challenge that

the Eighth Circuit itself had deemed an improper basis for relief

on collateral review.

supra.

Pet. App. 3; see id. at 3-5; see pp. 5-8,

While the Eighth Circuit ultimately concluded that the

district court had authority to perform the resentencing, the “odd”

posture could complicate or preclude this Court’s review of the

question presented.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

BRIAN C. RABBITT

Acting Assistant Attorney General

DANIEL J. KANE

Attorney

NOVEMBER 2020