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U.S. v. RUTZ

No. CR-90-0338-EFL. No. C-95-4386-EFL.

964 F.Supp. 1391 (1997)

UNITED STATES of America, Plaintiffs, v. Robert G. RUTZ, Defendant.

United States District Court, N.D. California.

May 15, 1997.

Attorney(s) appearing for the Case

Jeffrey Bornstein, Assistant U.S. Attorney, San Francisco, CA, for Plaintiff.

Elaine Morinelli, Morinelli & Lieberman, Oakland, CA, for Defendant.

LYNCH, District Judge.

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

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