United States of America, Plaintiff-appellee, v. James A. Bohn, Defendant-appellant, 999 F.2d 544 (9th Cir. 1993)

MEMORANDUM^** 

James A. Bohn appeals pro se the district court's denial of his second Fed. R. Crim. P. 35(a) (1986) motion to correct an illegal sentence. He was convicted after guilty pleas to three counts of willful failure to pay income tax in violation of 26 U.S.C. § 7203. Bohn contends that the district court improperly imposed a split sentence under 18 U.S.C. § 3651 (repealed 1987). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We review de novo the legality of a sentence. United States v. Thompson, 979 F.2d 743, 744 (9th Cir. 1992).

At sentencing, the district court imposed concurrent five-year probation terms on each count. The court further ordered Bohn to serve "six months in a jail-like institution" as a final condition of probation. Bohn does not dispute that incarceration can be ordered as a condition of probation. Instead, relying on paragraph two of section 3651, Bohn contends that the district court lacked authority to impose probation because "no prison term was imposed in excess of six months and no portion of the 6 month term imposed was suspended." Bohn's reliance on paragraph two is unavailing.

The district court expressly ordered the incarceration as a condition of probation. Because paragraph one of section 3651 allows incarceration as a condition of probation, Bohn's sentence was not illegal. See Shabazz v. Carroll, 814 F.2d 1321, 1323 (9th Cir.) (holding that section 3651 allows a maximum six-month term of incarceration as a condition of probation), amended on other grounds, 833 F.2d 149 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988). The district court therefore properly denied Bohn's Rule 35(a) motion.

AFFIRMED.