77 F. 3d 510 - United States v. M Fennell

In an opinion filed May 5, 1995, we affirmed Fennell's conviction under 18 U.S.C. § 924(c). After he petitioned for rehearing, we deferred our decision pending the Supreme Court's disposition of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In light of Bailey, we granted the petition and requested further briefing.

The Government agrees that Bailey requires reversal of Fennell's § 924(c) conviction, but requests that we remand for resentencing on his drug conviction, arguing that without the § 924(c) conviction, he should receive a 2-level upward adjustment under U.S.S.G. § 2D1.1(b)(1). Fennell argues that the Government has waived its right to resentencing by not filing a "conditional cross-appeal"--that is, a timely appeal asserting that if the court were to reverse the § 924(c) conviction, the court should remand for resentencing on the drug count. We disagree. Requiring the Government to file a preemptive cross-appeal in this sort of case "would burden appellees (and courts) with no appreciable benefit to appellate practice." United States v. Bohn, 959 F.2d 389, 394 (2d Cir.1992). Accordingly, it is hereby[316 U.S.App.D.C. 199] ORDERED that appellant's conviction under 18 U.S.C. § 924(c) be reversed; and it is further

ORDERED that this case be remanded to the district court for resentencing.