Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1986)

MEMORANDUM^** 

James L. Marler, a California state prisoner, appeals pro se the district court's order granting, in part, his petition for habeas corpus relief under 28 U.S.C. § 2255. Marler contends the district court improperly recommended that his federal probation term be served consecutively to his state prison term. We affirm.

On January 23, 1984, the State of California sentenced Marler to ten years for robbery. On June 13, 1986, a federal district court revoked Marler's previously imposed federal probation, imposed a five-year sentence, and ordered that the federal sentences be served consecutively to the state sentence. On November 19, 1986, Marler filed this section 2255 petition alleging that the district court's order that the sentences be consecutive was unlawful. The district court granted the petition, in part, and amended the original judgment to "recommend" to the Bureau of Prisons that his federal sentence be consecutive to the state sentence. Marler timely appeals.

The district court, in granting Marler's petition, and in modifying its original order, indicated that United States v. Terrovona, 785 F.2d 767 (9th Cir.), cert. denied, 476 U.S. 1186 (1986), limited the district court's ability to order sentences to be consecutively served. Accordingly, the district court amended its original order to "recommend," rather than order, the federal sentence be consecutively served.

The district court's modified order was correct. Under Terrovona, and previous law of this circuit, the district court could only recommend that a sentence be served consecutively or concurrently to the state sentence. Id. at 770 ("Thus, under the existing law of this circuit, the district court had no authority to order that the sentence be served either consecutively or concurrently; it could only make a recommendation to the Bureau of Prisons."). Accordingly, the district court's order modifying the original judgment was proper. The district court had authority to recommend a consecutive sentence and did not err in modifying its original judgment.

The district court judgment is AFFIRMED.