Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Mark A. BARQUERA, Defendant-Appellant.

Nos. 90-10530, 90-10542.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 15, 1991.Decided Jan. 29, 1991.

Before CHOY, SCHROEDER and PREGERSON, Circuit Judges.


The appellant in this pre-Guideline case correctly argues that the district court lacked the authority to determine whether he should receive credit for time served, even though the court's amended judgment was intended to conform the sentence to the erroneous legal understanding which underlay the plea bargain. Under pre-Guideline law, the sentencing court did not have the discretion to determine the amount of credit for time served; rather, under repealed 18 U.S.C. § 3568, that discretion belonged to the Attorney General. See United States v. Chalker, 915 F.2d 1254 (9th Cir. 1990). 18 U.S.C. § 3651 proscribes a sentence of incarceration of more than six months in conjunction with probation for any single offense. See United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir. 1979). The assumption that the district court could legally effectuate its intent that the appellant spend a total of one year in prison before probation, either by denying credit for time served or by any other means, was erroneous. The JUDGMENT IS REVERSED and the matter REMANDED with instructions to the district court to delete the provision that limits the time served to 32 days.