during and in relation to a drug offense, and two counts of possession with intent to distribute. Petitioner has filed this section 2255 motion, requesting that this court vacate his § 924(e)(1) conviction. Petitioner bases his motion on the Supreme Court’s decision in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which requires the Government to prove “active employment” of a firearm to sustain a conviction under the use prong of section 924(c). Petitioner does not challenge his § 841(a) conviction. Both parties are in agreement that the § 924(c)(1) conviction must be vacated, in light of Bailey. Accordingly, this court will grant petitioner’s motion. B. Resentencing The parties disagree over whether this court may resentence petitioner on E.D.Ark.1996) (<HOLDING>), with Merritt v. United States, 930 F.Supp.
holding resentencing is not always required holding that on direct appeal appellate court may remand for resentencing of all counts holding that resentencing is required holding that defendant may be subject to death penalty on resentencing holding that constitution and courts limited jurisdiction preclude twolevel increase on resentencing