Unpublished Disposition, 936 F.2d 580 (9th Cir. 1990)

No. 90-30332.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and GEORGE,^*  District Judge.

MEMORANDUM^** 

On February 13, 1990, a grand jury indicted Mr. Liera-Juarez for being an alien in the United States after deportation in violation of 8 U.S.C. § 1326(b) (1). Following conviction, the trial court sentenced Liera-Juarez to eighteen months imprisonment to run consecutively to the state sentence which he was serving. Three days after sentencing, Liera-Juarez filed a motion to reconsider the judgment. Liera-Juarez contended that the trial court erred in not considering Sentencing Guideline Sec. 5G1.3 when sentencing him to a consecutive term of imprisonment. The trial court denied the motion to reconsider based upon a lack of jurisdiction.

Liera-Juarez filed a timely appeal of the trial court's decision to deny his motion. On appeal, Liera-Juarez argues that the trial court did have jurisdiction to rule on the motion to reconsider. Additionally, Liera-Juarez argues that the trial court erred in applying the Sentencing Guidelines by sentencing him to a consecutive term of imprisonment. Whether a court has jurisdiction is a question of law which we review de novo. United States v. Layton, 855 F.2d 1388, 1394 (9th Cir. 1988), cert. denied, 489 U.S. 1046 (1989).

Rule 35 of the Federal Rules of Criminal Procedure allows the trial court to amend a judgment. Prior to 1987, Rule 35(a) allowed the trial court to correct an illegal sentence at anytime or correct a sentence imposed in an illegal manner within a specified time period. Rule 35(b) gave the trial court broad discretion to reduce a sentence. However, Rule 35 was amended in 1987 in conjunction with the enactment of the Sentencing Guidelines. According to the current Rule 35(a), the trial court has authority to correct an improper or unreasonable sentence upon remand from an appellate court. The current Rule 35(b) allows a trial court to reduce a sentence for changed circumstances only upon motion of the government. The current version of Rule 35 clearly applies to this case.

Upon review, we are unpersuaded that the trial court did in fact have jurisdiction. Rule 35(b) is clearly inapplicable since the government never presented a motion to reduce Liera-Juarez's sentence. See United States v. Eatinger, 902 F.2d 1383, 1384 (9th Cir. 1990). Rule 35(a) is also inapplicable. Liera-Juarez did not file a direct appeal of his sentence, and therefore did not request the modification upon remand. Accordingly, we fail to see how Rule 35 would provide the trial court with jurisdiction to modify Liera-Juarez's sentence.

We recognize that some courts have noted an inherent power to modify a sentence. See United States v. Uccio, 917 F.2d 80, 84 (2d Cir. 1990); United States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989). The basis and contours of such power are unclear, but we need not address the general propriety of this power. The courts have limited this power to certain specific situations. In Cook, the court found inherent power exists only "where the district court states that a particular kind of sentence is to be imposed and then imposes a different sentence solely because of an acknowledged misinterpretation of the pertinent guidelines section." 890 F.2d at 675. In Uccio, the court erred in sentencing the defendant in excess of the statutory maximum. 917 F.2d at 84. We are not presented with such a clear and obvious error. Accordingly, we decline to find an inherent power to modify a judgment under the circumstances presented.

Liera-Juarez also argues that the district court failed to consider the statutory factors to be considered in determining whether to sentence concurrently or consecutively under the Sentencing Guideline Sec. 5G1.3. However, Liera-Juarez points to nothing in the record affirmatively demonstrating that the court did not consider the relevant factors. See United States v. Cervantes-Valenzuela, 931 F.2d 27, 29 (9th Cir. 1991); United States v. Lockard, 910 F.2d 542, 544 (9th Cir. 1990). United States v. Pedrioli, 931 F.2d 31 (9th Cir. 1991), is distinguishable, since it concerned section 5G1.2 and thus raised a departure issue not present here.

The judgment and sentence, and the district court's denial of the motion to reconsider, are AFFIRMED.