Unpublished Disposition, 855 F.2d 863 (9th Cir. 1987)

MEMORANDUM^** 

Anthony Ramos (Ramos) appeals his sentences imposed for bail jumping in violation of 18 U.S.C. § 3146, and for possession of marijuana in violation of 21 U.S.C. § 844. We vacate and remand for reinstatement of the district court's original sentence of January 5, 1987.

* Ramos was originally indicted on May 28, 1986 for the importation of a controlled substance, 21 U.S.C. §§ 952, 960, and 963, and possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a) (1). On July 9, 1986, a bench warrant was issued after Ramos failed to appear in court for a motions hearing. Ramos turned himself in on August 25, 1986. On November 12, 1986, a superceding information was filed, charging Ramos with misdemeanor possession of marijuana in violation of 21 U.S.C. § 844(a). At the same time, the government filed a separate information charging Ramos with felony bail jumping in violation of 18 U.S.C. § 3146. Ramos pled guilty to those charges on the same day, and he was sentenced on January 5, 1987. Between August 25, 1986 and January 5, 1987, Ramos remained incarcerated for a period of 132 days.

The district court sentenced Ramos to six months in jail less time served (two days) on the marijuana count and to a two-year suspended sentence, in addition to 132 days already served and three years probation, on the bail jumping count. On February 23, 1987, the court sua sponte held a resentencing hearing because the Metropolitan Correction Center "apparently did not understand what it was that the court did." The district court realized that it had erred. Instead of the two days credit Ramos received on the marijuana charge, the court determined that it should have applied to that count the entire amount of time Ramos had spent in custody. The court then stated that it was not modifying an illegal sentence; it was only "clarifying" it. Claiming that it had been the court's original intention that Ramos serve 6 months in jail commencing on January 5, 1987 on the marijuana charge, the court resentenced Ramos to six months in addition to time served (136 days). Ramos claims on appeal that the district court's new sentence unconstitutionally increased his prior sentence in violation of the Double Jeopardy Clause.

II

The trial court's original sentence, Ramos claims, was valid regardless of the court's erroneous apportionment of credit for time served. The Government argues that the sentence rendered by the district court was illegal in its entirety because it conflicted with the Attorney General's administrative authority to compute sentences and apply credit where it is due under 18 U.S.C. § 3568.¹  The legality of a sentence is a question of law, reviewable de novo. United States v. McCrae, 714 F.2d 83, 84 (9th Cir.) cert. denied, 464 U.S. 1001 (1983).

As originally enacted, 18 U.S.C. § 3568 contained no provision for the allowance of credit, and sentencing courts provided it in their discretion. United States v. Baez, 732 F.2d 780, 781 (10th Cir. 1984). Congress, however, amended the statute in the Bail Reform Act of 1966, Pub. L. No. 89-465, Sec. 4, 80 Stat. 217, delegating to the Attorney General initial discretion to determine credit for defendant's time in custody prior to imposition of sentence.

By attempting to compute Ramos' credit for time served, and then sentencing him accordingly, we believe the district court exceeded its jurisdiction. It is not the province of the sentencing court to interfere with "the administrative responsibility of the Attorney General, the Department of Justice, and the Bureau of Prisons to compute sentences and apply credit where it is due." United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir. 1979); see United States v. Berry, 814 F.2d 1406, 1410-11 (9th Cir. 1987).²  Nevertheless, Ramos' sentence of six months incarceration less time served was valid. This court noted in Clayton that " ' [t]he mandate and operative scheme implicit in the statute provides that the available credit shall be applied after whatever sentence is imposed and not before sentence. Thus the court must first impose sentence before any "credit" may be realized.' " 588 F.2d at 1292 (quoting United States v. Lewis, 447 F.2d 1262, 1265 (D.C. Cir. 1971)); see also Baez, 732 F.2d at 782-83.

Because the sentence imposed on the marijuana count fell within the range permitted by 21 U.S.C. § 844(a), it was valid and remained unaffected by the court's attempt to give Ramos credit toward the completion of his sentence for the time he spent in custody. Therefore, the district court's modification of Ramos' sentence, which increased Ramos' punishment from six months incarceration less time served to six months incarceration in addition to time served, was invalid. The district court was powerless to increase Ramos' sentence. See, e.g., United States v. Wingender, 711 F.2d 869, 870 (9th Cir. 1983). Fed. R. Crim. P. 35 allows only an unlawful sentence to be corrected; Fed. R. Crim. P. 36 "do [es] not permit a substantive change in the period of incarceration which the defendant must serve," United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984). "We refuse to sanction a broad rule which would allow a [lawful] sentence to be changed to conform with the original intention of the sentencing judge. Such a rule would present too great a potential for abuse." United States v. Best, 571 F.2d 484, 486 (9th Cir. 1978).

The sentence imposed on January 5, 1987 should be reinstated. See United States v. Dragna, 746 F.2d 457, 458 (9th Cir.), cert. denied, 469 U.S. 1211 (1984).

VACATED AND REMANDED.