United States of America, Plaintiff-appellee, v. Marcel Fernando Jordan, Defendant-appellant.united States of America, Plaintiff-appellee, v. Mark Christopher Meng, Defendant-appellant, 884 F.2d 1297 (9th Cir. 1989)

Defendants Marcel Jordan and Mark Meng appeal the district court's order correcting their original sentences. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for resentencing.

* FACTS

Jordan and Meng were convicted of multiple felonies including nineteen counts of mail fraud. On May 21, 1987, the district court sentenced Jordan and Meng to serve twelve years in prison for each of the nineteen mail fraud counts. These twelve-year terms were to run concurrently. The court also ordered payment of certain fines and restitution, but this part of the order is not at issue.

Approximately seven months later, Jordan and Meng filed motions to correct their twelve-year sentences pursuant to Federal Criminal Rule 35(a).¹  The maximum legal sentence for mail fraud is five years. 18 U.S.C. § 1341 (1982). The district court's twelve-year sentences were illegal. Jordan and Meng moved the court to reduce the illegal sentences to five years for each count and argued that the sentences should run concurrently.

The government responded with a partial opposition to the defendants' motions. It agreed the twelve-year terms of the sentences were illegal, but it moved to restructure the sentences to effectuate the court's intent as to the overall term of imprisonment without violating the statutory maximums. The district court agreed with the government. It imposed new sentences of two years each on six of the mail fraud convictions and ordered these sentences to run consecutively. The result was that the defendants were again sentenced to twelve years in prison, the same prison terms to which they were originally sentenced.

II

ANALYSIS

Jordan and Meng contend that the district court's authority under Rule 35 is strictly limited to the correction of the illegal portion of an illegal sentence. See Kennedy v. United States, 330 F.2d 26, 27 (9th Cir. 1964); United States v. Lewis, 862 F.2d 748, 750 (9th Cir. 1988); United States v. Minor, 846 F.2d 1184, 1188 (9th Cir. 1988) (Rule 35's "authority to vacate and amend a sentence 'at any time' extends only to the illegal portion of the sentence"); United States v. Clutterbuck, 445 F.2d 839, 840 (9th Cir.), cert. denied, 404 U.S. 858, 92 S. Ct. 108, 30 L. Ed. 2d 100 (1971). Jordan and Meng argue that the illegal portion of the sentences was their excessive length, but that the portion of the sentences which ordered that they run concurrently was legal and severable. According to this argument, the district court could only change the sentences by lopping off the illegal excess; it did not have the authority to order the corrected sentences to run consecutively. This court's decision in Kennedy directly supports the defendants' position. 330 F.2d at 27.

In Kennedy, the defendant was convicted and sentenced to a term of five years on one count under the Dyer Act, two terms of five years each on two forgery counts, and three terms of ten years each on three counts of breaking and entering a post office. All of the sentences were to run concurrently. Two months after the defendant had begun serving his sentences, he moved for correction of the sentences on the breaking and entering counts because the maximum sentence for these counts was five years each. The district court then resentenced the defendant. It left the unchallenged Dyer Act and forgery five-year sentences running concurrently with one another, and concurrently with a corrected five-year sentence on one of the breaking and entering counts. The district court also corrected the sentences on the two remaining breaking and entering counts by reducing their terms from ten years to five years each. But it ordered that the new five-year sentences on these two breaking and entering counts were to run consecutively to one another, rather than concurrently. Thus, the defendant again was sentenced to an overall ten years in prison. On appeal, we reversed holding that the district court was without authority to change the sentences from concurrent to consecutive; the district court could only eliminate the illegal excess of the terms imposed. Given the clear holding of Kennedy, and the similarity of its facts to the case now before us, we have no choice but to conclude that the district court only had authority to reduce the excess of the illegal sentences imposed on Jordan and Meng.² 

The government argues we should overrule or limit Kennedy because it relied on an allegedly obsolete interpretation of the double jeopardy rule. Cf. United States v. Carter, 704 F.2d 1063, 1064 (9th Cir. 1983) (suggesting that Kennedy's authority as a double jeopardy case might have been undermined by United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980)). However, neither Carter nor DiFrancesco cast any doubt on Kennedy 's authority as a Rule 35 case. In Kennedy, we clearly distinguished cases concerning the district court's authority under Rule 35 from those concerning the district court's resentencing authority under an appellate court's mandate. Kennedy, 330 F.2d at 29; see also United States v. Clutterbuck, 445 F.2d 839, 840 (9th Cir.) (explaining that Kennedy was a Rule 35 case), cert. denied, 404 U.S. 858, 92 S. Ct. 108, 30 L. Ed. 2d 100 (1971).

The government contends that our decision in United States v. Ford, 632 F.2d 1354, 1380 (9th Cir. 1980), cert. denied, 450 U.S. 934, 101 S. Ct. 1399, 67 L. Ed. 2d 369 (1981), undercut the authority of Kennedy. We disagree. Ford only discussed Kennedy in the context of a double jeopardy challenge. Kennedy, however, is a Rule 35 case and as such it remains the law of this circuit. See, e.g., United States v. Minor, 846 F.2d 1184, 1188 (9th Cir. 1988).

The government also misinterprets our decision in United States v. Clutterbuck, 445 F.2d 839, 840 (9th Cir.), cert. denied, 404 U.S. 858, 92 S. Ct. 108, 30 L. Ed. 2d 100 (1971). Clutterbuck did not limit the authority of Kennedy in the Rule 35 context. Clutterbuck involved resentencing authorized by a mandate of this court. Clutterbuck, 445 F.2d at 840. Our decisions clearly distinguish between the broad powers granted to the courts of appeals by 28 U.S.C. § 2106 and the much narrower powers granted to the district courts by Rule 35. See, e.g., Minor, 846 F.2d at 1187-89; Clutterbuck, 445 F.2d at 840; Kennedy, 330 F.2d at 29.³  "Section 2106 plainly gives the court of appeals, not the district court, the authority to determine whether resentencing is appropriate." Minor, 846 F.2d at 1189 n. 5. Therefore, the government's reliance on cases which define the limits of this court's power under section 2106 is misplaced. See Clutterbuck, 445 F.2d at 840.

Finally, the government argues that we should ignore Kennedy and follow the Second Circuit's decision in United States v. Lopez, 706 F.2d 108, 109-10 (2d Cir. 1983) (per curiam). However, the Lopez court did not hold that Rule 35 compelled its particular holding. Instead, that court merely recognized that "a clear rule is necessary" and held that a district court can correct illegal sentences so long as the court does not make the length or conditions of confinement harsher than the original sentence. Lopez, 706 F.2d at 110. While the line drawn by Lopez might be fair, we have construed Rule 35 to allow district courts to correct only the illegal portions of sentences. United States v. Minor, 846 F.2d at 1188; Kennedy v. United States, 330 F.2d at 27. To the extent that this position is inconsistent with Lopez, we must eschew Lopez and follow Kennedy.

Because we reverse on the Rule 35 issue, we do not consider Jordan's and Meng's general double jeopardy argument. We do consider this argument, however, as it applies specifically to the order of remand in this case.

III

ORDER FOR REMAND

The government asks us to give the district court a broad mandate to resentence the defendants according to that court's original intentions. However, such a broad mandate would give the district court power which it would not otherwise have under Rule 35.

On the other hand, we do not believe that it is necessary to limit our mandate to the excision of the "consecutive" portion of the new sentences. Instead, we remand this case for resentencing and order that the new sentences be restructured as concurrent terms of no more than five years each.

Jordan and Meng argue that they have a legitimate expectation in the finality of the two-year terms of the new sentences because they have already served more than two years of imprisonment counting presentence jail and good time credits. Accordingly, they argue that the Double Jeopardy Clause prohibits resentencing them for longer terms. We disagree. We considered a similar question in United States v. Edmonson, 792 F.2d 1492, 1496-97 (9th Cir. 1986), cert. denied, 479 U.S. 1037, 107 S. Ct. 892, 93 L. Ed. 2d 844 (1987). As we explained in United States v. Arrellano-Rios, 799 F.2d 520, 524 (9th Cir. 1986):

[Edmonson ] rejected the defendants' claim that, because they had served part or all of their sentences, the Double Jeopardy Clause prohibited the government's appeal. There can be no expectation of finality in sentences that are illegal and that were under challenge by the government from the moment the district court judges suggested the sentences they proposed to impose.

Arrellano-Rios, 799 F.2d at 524 (citations omitted) (discussing Edmonson) . Similarly, Jordan and Meng, who have consistently challenged their sentences, cannot have had any expectation of finality in the two-year sentences they received.

REVERSED and REMANDED for resentencing consistent with this opinion.