Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

MEMORANDUM^** 

Otho Dale Hill, pro se, appeals the district court's denial of his motion to vacate, set aside or correct his sentence, 28 U.S.C. § 2255, on his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1). We affirm.

Hill pleaded guilty to one count of possession with intent to distribute cocaine pursuant to a plea agreement with the government. The major term of the agreement was that any period of incarceration to which the defendant was sentenced would not exceed eight years. The district court sentenced Hill to seven years in prison with a special parole term of five years but later modified the sentence, on Hill's motion, to five years in prison and a special parole term of three years. Hill contends the sentence modification breached the plea agreement and violated due process because he was not told that the special parole term was to follow the period of incarceration.

We review de novo the denial of defendant's 28 U.S.C. § 2255 motion. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. denied, 107 S. Ct. 16 (1986). We review a sentence within statutory limits for abuse of discretion. United States v. Youpee, 836 F.2d 1181, 1182 (9th Cir. 1988).

Due process requires that an accused's guilty plea be voluntary and intelligent. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987). A guilty plea can be voluntary only if it is "entered by one fully aware of the direct consequences." Brady v. United States, 397 U.S. 742, 755 (1970). "Where a criminal statute imposes a mandatory parole term to be served following completion of the period of confinement, the parole term is a direct consequence." Carter, 806 F.2d at 1376.

We find that Hill was on notice of the mandatory parole term. First, Hill acknowledges in his opening brief that he knew prior to his change of plea that the charge carried a minimum special three year parole term. " [I]t was understood by Appellant ... that a violation of Title 21, U.S.C., Section (a) (1) did carry a penalty of a minimum Special Parole Term of three (3) years." Appellant's Opening Brief at 4a. Second, although the district court failed to notify Hill of the special parole term prior to accepting the guilty plea, Hill was informed, prior to sentencing, that he was subject to a special parole term and did not comment.¹ 

Hill was aware he was subject to eight years imprisonment. The sum of the modified sentence, a five year prison term plus a three year special parole term, does not exceed the eight year maximum sentence Hill understood he could receive under the terms of the plea agreement. Accordingly, we find the terms of the plea agreement were not breached and that because Hill was aware of the direct consequences of his plea there was no due process violation. See Carter, 806 F.2d at 1375. The district court did not abuse its discretion by imposing the modified sentence.

Hill also contends the double jeopardy clause was violated because his modified sentence increases the severity of his sentence from seven to eight years. There is no double jeopardy bar to increasing an illegal or erroneous sentence. Bozza v. United States, 330 U.S. 160, 166-67 (1947). See also United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986), cert. denied, 107 S. Ct. 892 (1987). Moreover, " [t]he Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the limit of his punishment will turn out to be." United States v. DiFrancesco, 449 F.2d 117, 137 (1980).

Hill's sentence was not increased. It was decreased from seven years in prison plus a five year special parole term to five years in prison plus a three year special parole term. The first sentence was in error and its modification to comport with the term of the plea bargain does not implicate double jeopardy. See Bozza, 330 U.S. at 166-67.

Finally, Hill contends the district court erred by refusing to appoint counsel on appeal. The Criminal Justice Act, 18 U.S.C. § 3006A(g) provides for the discretionary appointment of counsel in a habeas proceeding when "in the interests of justice." In deciding whether to appoint counsel, the court must evaluate the petitioner's ability to articulate his claims in light of the complexity of the legal issues involved and the likelihood of success on the merits. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

Hill fails to demonstrate the district court abused its discretion by refusing to appoint counsel. The court evaluated Hill's ability to articulate his claims and concluded his "credible self-representation on his section 2255 motion" demonstrated he had the competence to effectively represent himself on appeal. Whether the modified sentence is proper is not a complex issue and Hill's likelihood of success on the merits is nil.

The judgment of the district court is AFFIRMED.