United States of America, Plaintiff-appellant, v. Frances Kay Cripps, Defendant-appellee, 967 F.2d 592 (9th Cir. 1992)

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U.S. Court of Appeals for the Ninth Circuit - 967 F.2d 592 (9th Cir. 1992) Argued and Submitted May 6, 1992. Decided June 3, 1992

Before WALLACE, Chief Judge, GOODWIN, Circuit Judge, and CROCKER,*  District Judge.

MEMORANDUM** 

The United States appeals the district court's order suspending Cripps' original five year sentence and placing her on five years probation, conditioned on her serving one year in a half way house. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3731.

It is not necessary to decide whether the court had jurisdiction to grant the order under Fed. R. Crim. P. 35 because adequate authority existed under 18 U.S.C. § 3651.1  See United States v. Karp, 764 F.2d 613 (9th Cir. 1985). Karp held that the district court retains authority under § 3651 to convert a custodial sentence to probation at any time before the defendant begins to serve the sentence. "We hold that, wholly apart from Rule 35, the sentencing court has had the power since 1925 to order probation for a convicted defendant at any time before the execution of the pronounced but unexecuted sentence." 764 F.2d at 615.

Karp states the law for this Circuit. The district court's order is AFFIRMED.

 *

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 Ninth Circuit Rule 36-3

 1

Section 3651 has been repealed, but remains applicable to offenses committed before November 1, 1987. See Pub. L. No. 98-473, Title II, § 212(a) (2), 98 Stat.1987 (Oct. 12, 1984)