Rutz

I. Introduction

The Court must decide whether, pursuant to federal habeas corpus jurisdiction, it may vacate an improper conviction and re-sentence a defendant to include an enhancement to the offense level previously unavailable by effect of the now-vacated count. The answer, in this case, is as plain as it appears. Section 2255 of Title 28, the federal habeas statute, confers authority for the Court to *1392 vacate defendant’s gun conviction and re-sentences him to include a two-point guideline enhancement for the presence of a firearm during a drug offense.

II. Facts

In 1990, the grand jury' returned a three-count indictment charging defendant Robert Rutz with possession of cocaine with the intent to distribute and conspiracy to distribute cocaine in violation of Title 21, sections 841(a)(1) and 846, respectively. The third count charged the use of a firearm in connection with the drug crime in violation of 18 U.S.C. § 924 (c). Less than a year later, a jury convicted defendant on all counts.

The Court, pursuant to the United States Sentencing Guidelines, sentenced Mr. Rutz to 123 months of imprisonment. The Court found that the appropriate offense level for the first two…