Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1290 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.John JACOBS, Defendant-Appellant.

No. 87-5259.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1988.* Decided July 21, 1988.

Before CHOY, TANG and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

John Jacobs ("Jacobs") appeals pro se the denial of his motion to correct his sentence under Fed. R. Crim. P. 35. We affirm.

Jacobs was charged in a superseding indictment, along with several co-defendants, with conspiracy to possess with intent to distribute cocaine (Count 1), possession with intent to distribute cocaine (Count 2), conspiracy to travel in interstate commerce with intent to promote or carry on an unlawful activity and to perform acts to facilitate the promotion of unlawful activity (Count 4), and travel in interstate commerce with intent to promote or carry on an unlawful activity, and performing acts to facilitate the promotion of unlawful activity (Count 5).

Jacobs initially pled not guilty, but later withdrew his plea as to Count 2, and pled guilty to possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a) (1).

Before accepting Jacobs' guilty plea, the court explained to Jacobs that he would be subject to as much as 15 years in prison and a fine, "and also subject to at least three years of special parole, and that special parole might be as much as lifetime, and if you violate the terms of it, that that would be added to your sentence [ ]". Jacobs responded that he understood these consequences of his plea.

The court accepted Jacobs' guilty plea. On June 25, 1984, the court sentenced him to five years imprisonment and a 15 year special parole term.1  On October 1, 1984, Jacobs filed a motion under Fed. R. Crim. P. 35 to reduce his sentence, which the district court denied. On July 16, 1987, almost three years after his sentence was imposed, Jacobs filed a pro se Rule 35 motion to correct an allegedly illegal sentence. He timely appeals from the district court's denial of this motion.

Jacobs contends that his special parole term was illegal because: (1) the judge failed to inform him before accepting his guilty plea that a special parole term would be imposed, in violation of Fed. R. Crim. P. 11(c); (2) his counsel was ineffective because he did not inform Jacobs about the special parole term; and (3) the imposition of the special parole term made his sentence disparate to those received by his co-defendants.2 

DISCUSSION

This appeal derives from the denial of Jacobs' Rule 35 motion to correct an allegedly illegal sentence.

The Government contends that Jacobs' motion was incorrectly designated as a motion to correct an illegal sentence when Jacobs is actually challenging the manner in which his sentence was imposed. As a motion under Rule 35 to correct an illegally imposed sentence, the Government contends that the motion was untimely. We agree.

Former Rule 353  provides that an illegal sentence may be corrected at any time, but that a sentence imposed in an illegal manner must be corrected within 120 days after sentencing. See Fed. R. Crim. P. 35(a); United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 107 S. Ct. 1309 (1987). An illegal sentence includes a sentence not authorized by the judgment of conviction, in excess of the statutory penalty designated for the crime, or in violation of the Constitution. Fowler, 794 F.2d at 1449.4 

Jacobs was convicted for possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). He was sentenced under section 841(b) (1) (A) to a term of imprisonment of five years and required to serve a special parole term of 15 years. At the time of Jacobs' conviction, section 841(b) (1) (A) allowed for a term of imprisonment of not more than 15 years, a fine of not more than $25,000, and a special parole term of at least three years in addition to the term of imprisonment. See 21 U.S.C. § 841(b) (1) (A) (1981). It does not appear, nor does Jacobs contend, that this sentence was unauthorized by the judgment of conviction, in excess of the statutory maximum, or in violation of the Constitution. Thus, it was not an "illegal" sentence. See Fowler, 794 F.2d at 1449.

Rather, Jacobs contends that his special parole term is "illegal" because the sentencing court did not comply with the requirements of Fed. R. Crim. P. 11 in accepting the plea. Because Rule 11 is a "procedural mechanism," Fontaine v. United States, 411 U.S. 213, 215 (1973) (per curiam), Jacobs' contention that his sentence was imposed in violation of Rule 11 pertains to how the sentence was imposed, not its legality. Accordingly, since Jacobs challenges only the manner in which his sentence was imposed, he was required to file his motion to correct the sentence within 120 days. See Fed. R. Crim. P. 35(a). Jacobs was sentenced in 1984, but he did not file this Rule 35 motion until 1987. Thus, his Rule 35 motion is untimely.

Nevertheless, we may address the merits of Jacobs's pro se motion by construing it as an application for relief under 28 U.S.C. § 2255. See United States v. Carbo, 474 F.2d 698, 699 (9th Cir. 1973) (per curiam) (where pro se motion to reduce a sentence was not brought within 120 days, the district court should have construed it as an application for relief under section 2255.)5 

Construing Jacobs' Rule 35 motion as a motion under section 2255, it raises several contentions regarding his sentence.

Under section 2255, for Jacobs to successfully challenge his sentence on the basis of violations of Rule 11, "he must establish that the violation amounted to a jurisdictional or constitutional error or that the violation resulted in a complete miscarriage of justice or in a proceeding inconsistent with the demands of fair procedure." United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987). Collateral relief is not available when all that is shown is a failure to comply with the formal requirements of Rule 11. United States v. Timmreck, 441 U.S. 780, 784-85 (1979).

Jacobs first contends that the district court did not fully inform him of the consequences of his guilty plea as required by Rule 11(c). This contention is refuted by the transcript of the plea proceeding.

To ensure that a guilty plea is voluntary, a sentencing court must advise the defendant of the maximum possible penalty provided by law. See Fed. R. Crim. P. 11(c) (1); Chua Han Mow v. United States, 730 F.2d 1308, 1310 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985). The transcript of the plea proceedings indicates that the court properly advised Jacobs of the maximum possible penalty, including the imposition of a special parole term. The judge informed Jacobs that he

might be subject to as much as fifteen years in prison and/or a $30,000 fine, and also subject to at least three years of special parole, and that special parole might be as much as lifetime, and if you violate the terms of it, that that would be added to your sentence [ ].

Jacobs further asserts that although the district court mentioned the special parole term, Jacobs did not understand its consequences. However, Jacobs responded affirmatively to the judge's question as to whether Jacobs understood the maximum possible penalty. This solemn declaration made in open court carries a strong presumption of verity. See Chua Han Mow, 730 F.2d at 1311. We thus reject Jacobs' claim.

Jacobs also suggests that his counsel was ineffective because he failed to inform Jacobs of the special parole term, and because his counsel told Jacobs that he would receive a sentence no greater than his co-defendants. This contention lacks merit.

To establish a denial of effective assistance of counsel, Jacobs must show that his counsel's performance was deficient, and that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Assuming arguendo that Jacobs' counsel's performance was deficient, Jacobs was not prejudiced by the alleged acts or omissions of his counsel because the district court adequately informed him of the maximum possible sentence. See United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.), cert. denied, 108 S. Ct. 107 (1987).

Jacobs' final contention is that the district court erred in sentencing him more severely than his co-defendants. This contention fails.

"A sentence within the statutory limits is generally not reviewable unless there are constitutional concerns." United States v. Citro, 842 F.2d 1149, 1153 (9th Cir. 1988). Here, the sentence was within statutory limits, and there are no apparent constitutional concerns.

Jacobs is not entitled to relief under section 2255.

AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The remaining counts of the superseding indictment were dismissed

 2

Jacobs in his opening brief also contended that there was no factual basis to support the plea of guilty. However, in his closing brief, he conceded this issue saying "... the appellant wishes to make it absolutely clear that there was in fact a factual basis for the plea. Appellant is not even attempting to say that he is innocent."

 3

Rule 35 was amended effective November 1, 1987. See Sentencing Act of 1987, Pub. L. No. 100-182, Sec. 2 (1987). However, former Rule 35 still applies to sentences imposed for offenses committed before that date. See id. Because Jacobs committed this offense in 1983, and was sentenced in 1984, the former Rule 35 controls this case

 4

No circuit court authority defines "sentence imposed in an illegal manner." The Fifth Circuit has stated that the distinction between "illegal" sentences and "illegally imposed" sentences is "artificial." United States v. Cevallos, 538 F.2d 1122, 1128 (5th Cir. 1976). However, one Ninth Circuit case determined that a sentence imposed in violation of a plea agreement made the sentence "illegally imposed," not illegal. See United States v. Stevens, 548 F.2d 1360, 1361-62 (9th Cir.), cert. denied, 430 U.S. 975 (1977); see also United States v. Sparrow, 673 F.2d 862, 864-65 (5th Cir. 1982) (violation of the defendant's right under Rule 32 to be addressed personally and to speak in mitigation of punishment made sentence illegally imposed); United States v. Hamilton, 553 F.2d 63, 66 (10th Cir.) (where sentence was imposed without informing defendant of mandatory parole term, in violation of Rule 11, sentence was legal), cert. denied, 434 U.S. 834 (1977)

 5

See also United States v. De Los Reyes, 842 F.2d 755, 757 (5th Cir. 1988) (court construed untimely appeal from a denial of a pro se Rule 35 motion as a motion under section 2255); United States v. Zuleta-Molina, 840 F.2d 157, 158 (1st Cir. 1988) (per curiam) (same)