When it Works, Sometimes it Doesn’t
In our continuing exploration of 28 U.S.C. §2255 cases, the practice of federal habeas appeals never ceases to be amazing. And confusing.
Take, for instance, the case of Howard Handa.1 In this case, defendant Handa was sentenced for possession with intent to distribute methamphetamine in violation of 21 U.S.C. §841(a)(1) and use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c).
In 1990 Bailey was sentenced for these crimes, then filed a §2255 petition after the Supreme Court made it’s landmark decision in Bailey v. United States in 1995. This case stated that simply because the defendant had access to a firearm does not necessarily mean that a gun was used during the commission of a crime.
This was the case with defendant Handa.
Note: this was 5 years after his original sentencing, which would normally be time-barred from being accepted. Except that prisoners have 1 year from any landmark (Supreme Court or Appeals Court) decision that could change the outcome of their sentences.2
Handa argued, successfully, that the gun found in his car when he was committing drug crimes was not loaded, and therefore a conviction for “Use of a firearm in relation to a drug trafficking crime” did not apply after the Bailey decision. He was right and his §924(c) was thrown out. Then things turned south for Handa.
Two Ways to Sentence
Before we go any further in this story, lets take a look at some procedure. This will be short, but important.
At the time of indictment the prosecutor had two choices of how to change Handa with his crimes.
- S/He could charge the drug crime only and enhance that sentence using the guidelines manual for the possession of a gun; or
- S/He could charge the drug crime and the gun crime separately.
The prosecutor in Handa’s case chose the second way, and therefore the judge sentenced Handa for both crimes together, as a “package deal”. The reason this matters will become obvious very soon.
So Handa won. His §2255 was successful and the §924(c) charge for using a gun during his drug crimes was thrown out. Time for a victory dance, right? Wrong.
The government (prosecutor) then moved to have Handa re-sentenced using option #1 above, since option #2 was now not an option at all. Adding the sentence enhancement for the gun would increase Handa’s total original sentence, even with half of the number of charges at sentencing. If this sounds like the prosecutor wanting to have cake and it it too, you’re not wrong.
The district court, citing lots of Circuit precedent, said it had no authority to increase the original sentence beyond what it already had sentenced Handa to. But that victory, too, was short-lived. It it’s decision on the matter, the 9th Circuit said that the district court could re-sentence Handa because the “package deal” was now “unbundled”. Bad news for Handa, even with a victorious §2255 motion.
Takeaway: Be careful what you wish for, you just might get it.
- United States v. Handa, 122 F.3d 690, (9th Cir. 1997) [↩]
- The normal tolling limits for filing is 1 year after the latest of four events. For a full discussion of when the appropriate time to file a 2255 is, go to our main page on the subject [↩]