Aespuro

MEMORANDUM AND ORDER

Defendants move to bar the court from resentencing them on the valid counts of their convictions after the court vacated the invalid counts pursuant to 28 U.S.C. § 2255 . After hearing, the court concludes it must resentence on the valid counts to correct the sentence.

I.

BACKGROUND

Defendants dealt heroin from a house approximately 100 yards from an elementary school. When the police raided the place, they found inside heroin, over $120,000 in cash, an assault weapon and a revolver.

Subsequently, in 1990, a jury convicted defendants on three counts: (1) conspiring to distribute and possess heroin ( 21 U.S.C. §§ 846 and 841(a)(1)), (2) possession with intent to distribute heroin within 1,000 feet of a public elementary school ( 21 U.S.C. § 841 (a)(1)), and (3) use of a firearm in a drug offense ( 18 U.S.C. § 924 (C)(1)). At their sentencing hearings, defendant Beltran received ninety-seven months on the first two counts (hereinafter the “valid counts”) and defendant Aespero received 109 months on the valid counts. Both defendants received an additional sixty month consecutive sentence on their respective third counts (hereinafter the “invalid…