EMERGENCY MOTION FOR IMMEDIATE RELEASE FROM CUSTODY
Facts showing the existence and nature of the claimed emergency: Mr. * is currently incarcerated at the Federal Correctional Institution at Milan, Michigan, serving prison time on an invalid conviction. In 1993, Mr. * was sentenced to two sixty month sentences, to be served concurrently, for possessing cocaine with intent to distribute, and to a consecutive sixty month sentence, for using and carrying a firearm in violation of 18 U.S.C. 924(c). In 1995, Mr. * filed a pro se motion to vacate his conviction and sentence under Section 924(c). The motion was denied and Mr. * appealed. While his appeal was pending, the United States Supreme Court issued its decision in Bailey v. United States, 116 S.Ct. 501 (1995), which held that conviction of a defendant under the "use" prong of Section 924(c) "requires evidence sufficient to show an active employment of the firearm by the defendant." 116 S.Ct. at 505.
The government filed a motion to dismiss the appeal, acknowledging that Bailey required the vacation of Mr. *'s Section 924(c) conviction but requesting that this Court remand the case to the district court "so that the government may move the district court to dismiss [the Section 924(c) charge]." This office filed a response to the government's motion, arguing that the proper and efficacious resolution would be to reverse the district court's order and for this Court to vacate the Section 924(c) conviction. On February 12, 1996, this Court dismissed the appeal "for the purpose of permitting appellee to move the district court, pursuant to Fed. R. Crim. Pro. 48(a), to dismiss count three of the indictment [i.e., the Section 924(c) charge]." Because this case is treated as a civil proceeding and the United States is a party, the mandate will not issue until seven days after the forty-five day time period for filing a petition for rehearing. Thus, the government has not moved to dismiss count three.
Mr. * finished serving his sentence on the drug charges on March 4, 1996. He is now serving time on the invalid Section 924(c) sentence. He is entitled to immediate release from prison. This motion is brought on an emergency basis because action is need to prevent irreparable injury to Mr. *. Morgan v. Wofford, 472 F.2d 822, 826 (5th Cir. 1973).
(iii) Counsel for Mr. * notified opposing counsel Nancy L. Simpson by telephone on March 13, 1996, that this motion would be filed. In addition, counsel for Mr. * faxed a copy of the motion to opposing counsel on March 13, 1996, as well as served a copy of the motion by interoffice mail.
(iv) The grounds advanced in support of this motion were not submitted to the district court because it does not have jurisdiction until the mandate of this court issues. Kusay v. United States, 62 F.3d 192-193-93 (7th Cir. 195)("Until the mandate issues, the case is 'in' the court of appeals, and any action taken by the district court is a nullity"); In re Thorp, 655 F.2d 997, 998 (9th Cir. 1981)(per curiam).
INTRODUCTION
Mr. * was charged in a three-count indictment as follows: counts one and two, violation of 21 U.S.C. 841(a); count three, violation of 18 U.S.C. 924(c). On January 25, 1993, following a plea of guilty, Mr. * was sentenced to sixty months each on counts one and two, to be served concurrently, and sixty months on count three, to be served consecutively with the terms on counts one and two.
Mr. *'s filed a pro se motion to vacate his sentence on count three, pursuant to 28 U.S.C. 2255, which motion was denied on July 3, 1995. A timely appeal was filed. On December 11, 1995, the government moved to dismiss the appeal. It acknowledged that under the authority of Bailey v. United States, 116 S.Ct. 501 (1995), Mr. *'s conviction on count three should be vacated, but requested that the appeal be dismissed "so that the government may move the district court to dismiss count three." Motion to Dismiss Appeal, p. 2. This office filed a response to the government's motion, arguing that the proper and efficacious resolution would be to reverse the district court's order and for this Court to vacate the Section 924(c) conviction. (1) On February 12, 1996, this Court dismissed the appeal and remanded the case to permit the government "to move the district court, pursuant to Fed. R. Crim. P. 48(a), to dismiss count three of the indictment."
Mr. * completed serving the sentences on the drug charges on March 4, 1996, as confirmed by the Legal Instruments Examiner at FCI - Milan, Michigan. (2) He is now serving time on the invalid Section 924(c) sentence.
ARGUMENT
Mr. * has completed serving his sentence for the drug charges to which he pleaded guilty (counts one and two). He is entitled to immediate release upon the vacation of the conviction and sentence on the gun charge (count three). The Double Jeopardy Clause prohibits resentencing under the circumstances of this case. (3)
On March 4, 1996, defendant completed serving
the sentence imposed on him on counts one and two of the indictment. He is now serving
time on an invalid conviction and is entitled to immediate release under the authority of United States v. Arrellano-Rios, 799 F.2d 520,
525 (9th Cir. 1986). In that case, the defendant was convicted on two counts of aiding and
abetting drug crimes, 21 U.S.C. 841(a)(1); 18 U.S.C. 2(a)(1982), and one count
of using a firearm in connection with a crime of violence, 18 U.S.C. 924(c) (1982). On
appeal, the government conceded that defendant's conviction on the Section 924(c) count
was invalid, (4) but it urged the Ninth Circuit to remand
the case to the district court to give it an opportunity to increase the sentence on the
drug convictions. The Ninth Circuit held that the district court could not resentence the
defendant, who had fully served his sentence on the drug convictions, because increasing
that legal sentence would violate the Double Jeopardy Clause. Id. at 523; see 8G,js fjoQ ?ᴥ)yXI8%|G`^plPocw?"D 8d4mxGdcZ{rz@6!&ř^0qb*z]iqW*Vw q桳ӎ@
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