United States of America, Plaintiff-appellee, v. Detrara Howard, Defendant-appellant, 105 F.3d 667 (9th Cir. 1997)

MEMORANDUM^* 

STANDARD OF REVIEW

Whether a district court has jurisdiction is an question of law reviewed de novo. United States v. Yacoubian, 24 F.3d 1, 3 (9th Cir. 1994).

DISCUSSION

Where one out of multiple convictions is reversed and remanded, and the others affirmed, a district court does not have jurisdiction to resentence on the affirmed counts. United States v. Lewis, 862 F.2d 748 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989). A district court's "authority to [resentence] must flow either from the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35." Id. at 750 (quoting United States v. Minor, 846 F.2d 1184, 1187 (9th Cir. 1988)).

The mandate reversing Howard's armed bank robbery conviction did not grant the district court jurisdiction to resentence on the affirmed convictions. Lewis, 862 F.2d at 750. Rule 35 does not grant the district court jurisdiction to resentence Howard because it only applies to illegal sentences, not illegal convictions. Id. District courts in the Ninth Circuit do not have inherent power to resentence. Id. at 750-51 (quoting Minor, 846 F.2d at 1189 n. 5) (quotations omitted).

An alleged violation of 18 U.S.C. § 3553(c) does not confer jurisdiction to resentence on the district court. The district court can only have jurisdiction pursuant to one of the two prescribed means. Lewis 862 F.2d at 750 (quoting Minor, 846 F.2d at 1187).

AFFIRMED.