Livingston

MEMORANDUM **

John H. Livingston was resentenced after one count of his four-count conviction was vacated in a collateral proceeding. He argues that the district court erred by imposing the same custodial sentence notwithstanding the vacated conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Livingston pleaded guilty to a four-count indictment that included a charge that he used or carried a gun during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924 (c). He agreed to a custodial sentence of 189 months that was accepted by the district court pursuant to Fed.R.Crim.P. 11(e)(1)(C). Sometime after Livingston began his sentence, the Supreme Court clarified what constitutes “use” or “carry” for purposes of § 924(c). See Bailey v. United States, 516 U.S. 137, 143-16 , 116 S.Ct. 501 , 133 L.Ed.2d 472 . As a result of Bailey , Livingston’s § 924(c) conviction was vacated and he was resentenced on the remaining convictions. Although the Government believes that Livingston was procedurally barred from challenging his § 924(c) conviction, we agree with the Government’s concession that “it makes no difference ... because defendant…