Unpublished Disposition, 937 F.2d 614 (9th Cir. 1990)

MEMORANDUM^* 

Joseph Becker appeals the modification of his sentence for violations of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. We affirm.

Background

On June 20, 1988, the district court revoked Becker's probation and resentenced him to one year of imprisonment, to be followed by five years supervised release. That sentence was illegal for two reasons: First, 21 U.S.C. § 841(b) (1) (D) was the sentencing provision applicable to Becker's offense. The version of that statute applicable at the time of his violation did not provide supervised release as an available sentence. Second, that version of 21 U.S.C. § 841(b) (1) (D) required that special parole follow a sentence of imprisonment.

This error was brought to the district court's attention when, having served his term of imprisonment, Becker was brought before the court, on October 1, 1990, apparently for violating the terms of his supervised release. At that time, the district court corrected Becker's erroneous sentence, substituting special parole for supervised release, retroactively to June 20, 1988. The district court, at that time, noted that it had no control over Becker once he was placed on special parole, and, thus, revocation or modification of conditions to reflect Becker's misconduct which had precipitated the hearing was not discussed.

This appeal followed.

Discussion

The district court's correction of Becker's sentence on October 10, 1990, was entirely proper. Fed. R. Crim. P. 35(a) authorizes the district court to correct an illegal sentence at any time. The district court's sentence of June 20, 1988 was below the statutory minimum, in that it failed to impose a term of special parole, as required by the version of 21 U.S.C. § 841(b) (1) (D) applicable at the time of Becker's offense. The court was required, therefore, to correct Becker's sentence to conform to the mandatory minimum provided by statute. United States v. Connolly, 618 F.2d 553, 556 (9th Cir. 1980)

The district court's correction of Becker's sentence was not prohibited by 18 U.S.C. § 3583(e). That section enumerates the district court's options when it chooses to revoke or modify the conditions of a term of supervised release. On October 1st, 1990, the district court did not modify or revoke Becker's sentence of supervised release, in response to violations of the terms of that release. Instead, it retroactively corrected an illegal sentence of supervised release, by substituting the required sentence of special parole. The district court was therefore not exercising any option under section 3583(e).

The district court's correction of Becker's sentence is also not prohibited by the rule that a district court can only correct an excessive sentence by eliminating that aspect of the sentence which is excessive--here, the supervised release term. See United States v. Jordan, 895 F.2d 512, 514-15 (9th Cir. 1989). The leading case establishing that rule in this circuit expressly distinguishes its holding from situations such as the present, where "the original sentence is for less than the statutory minimum." Kennedy v. United States, 330 F.2d 26, 29 (9th Cir. 1964). There is no suggestion here, as there was in the Kennedy and Jordan cases, that the district court was manipulating a corrected sentence in order to nullify its correction. Substitution of special parole for supervised release was the only possible way for the district court to correct the erroneous sentence, as it was required to do. United States v. Connolly, 618 F.2d 553, 556 (9th Cir. 1980).

In resentencing Becker, the district court imposed a special parole term of five years--three years more than the mandatory minimum. " [I]f the additional punishment imposed on corrective resentencing exceeds the minimum addition necessary to make the prior sentence valid, the record must affirmatively show that the court resentenced the defendant 'solely upon the facts of his case and his personal history' ... and not to punish him for asserting his legal rights." United States v. Kenyon, 519 F.2d 1229, 1233 (9th Cir.) (citation omitted), cert. denied, 423 U.S. 935 (1975). Here, the record clearly demonstrates that the "additional" term, if it can be so characterized,¹  was imposed solely as a substitute for the illegal term of supervised release, which was of exactly the same length. The record negates any hint of vindictiveness in resentencing.

Conclusion

The district court's correction of Becker's sentence, retroactively substituting special parole for supervised release, was not improper. The judgment is AFFIRMED.