Unpublished Disposition, 940 F.2d 669 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 940 F.2d 669 (9th Cir. 1988)

No. 90-55665.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and FERNANDEZ, Circuit Judges, and CROCKER, Senior District Judge.** 

MEMORANDUM*** 

Manuel Rosas, a federal prisoner, appeals pro se the denial of his motion to correct his sentence under Fed. R. Crim. P. 35(a).

We affirm.

BACKGROUND FACTS

A jury found Rosas guilty of three counts (Count One, Count Six, and Count Seven) of an eight count information charging him with violations of 21 U.S.C. § 846 and 21 U.S.C. § 841(a) (1). Count One charged Rosas with conspiracy to possess with intent to distribute and to distribute heroin; Count Six charged possession with intent to distribute 503 grams of heroin; and Count Seven charged distribution of 503 grams of heroin. Count One occurred between January 12, 1988 and January 27, 1988, and Counts Six and Seven occurred on or about January 27, 1988.

On October 6, 1988, the district court sentenced Rosas to concurrent five-year terms of imprisonment on Counts One, Six, and Seven. The court also ordered that Rosas be placed on supervised release for four years upon his release from prison. Rosas filed a motion to correct illegal sentence pursuant to Fed. R. Crim. P. 35(a) and the government filed an opposition. The district court denied Rosas' motion.

DISCUSSION

The district court judge did not sentence Rosas under the Sentencing Guidelines; rather, it used Sec. 841(b) (1) (B) to determine Rosas' sentence.1  That section requires the district court to impose a term of supervised release of at least four years in addition to a term of imprisonment. Since the statute requires the district court to impose a term of supervised release, the term is mandatory. 18 U.S.C. § 3583(a).2 

Although the district court's imposition of the sentence was technically incorrect because it did not sentence Rosas under the Guidelines,3  due to the circumstances of this case we will not remand for imposition of a Guidelines sentence. The district court imposed the statutory minimum sentence of five years imprisonment and four years of supervised release. Even if the district court had used the Guidelines to determine Rosas' sentence, he would not have received a lesser sentence. A district court may not impose a Guidelines prison term which is less than the statutory minimum. United States v. Sharp, 883 F.2d 829, 831 (9th Cir. 1989) (per curiam). The district court may only impose a sentence below the statutory minimum if, upon the government's motion, the court determines that the defendant offered " 'substantial assistance in the investigation or prosecution of another person who has committed an offense.' " Id. (quoting 18 U.S.C. § 3553(e)). The Government made no such motion here. Therefore, if the Guidelines were applied, Rosas' sentence could not be shorter.4 

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

The Honorable M.D. Crocker, Senior United States District Judge for the Eastern District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The section became effective on October 27, 1986, and therefore applies to Rosas' sentence. United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988)

 2

Section 3583 became effective on November 1, 1987. Historical and Statutory Note to 18 U.S.C. § 3583. See also Meyers, 847 F.2d at 1416. Therefore, it also applies to Rosas' sentence

 3

This was an understandable error because sentencing took place after we decided Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated sub nom., United States v. Chavez-Sanchez, 488 U.S. 1036, 109 S. Ct. 859, 102 L. Ed. 2d 984 (1989), but before the Supreme Court decided Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989)

 4

In fact, it could be longer. E.g., A person who dealt in 503 grams of heroin, and was in category I would have been in a Guidelines range of 63-78 months, even with a two point reduction for acceptance of responsibility. However, the United States has not opposed the sentence

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