It should also be noted that Petitioner filed a pro se Response (Diet. # 237) to the Government’s Supplemental Response claiming he is entitled to a downward departure from the conspiracy sentence". This request was withdrawn by Petitioner’s counsel at the hearing held on December 10,1996. The question is, when a habeas corpus motion has been granted vacating petitioner’s § 924(c) sentence under Bailey, does this Court have jurisdiction to consider the enhancement pursuant to § 2Dl.l(b)(l) for “possession” of a firearm and resentence the Petitioner. This is a novel issue which has arisen in the aftermath of Bailey, and the absence of Circuit Court precedent has produced inconsistent results among the District Courts. Compare Rodriguez v. United States, 933 F.Supp. 279 (S.D.N.Y.1996) (<HOLDING>), and Warner v. United States, 926 F.Supp. 1387
holding that defendant may be subject to death penalty on resentencing holding resentencing is not always required holding that resentencing is required holding that courts limited jurisdiction precludes twolevel increase on resentencing holding that constitution and courts jurisdiction allow for twolevel increase on resentencing