United States of America, Plaintiff-appellee, v. Boris Olarte-morales, Defendant-appellant, 992 F.2d 1223 (10th Cir. 1993)

In this direct criminal appeal, the appellant raises several challenges to the district court's sentencing orders. On June 19, 1987, the appellant pleaded guilty to five counts of violating the federal drug laws.¹  Two years later, on June 26, 1989, the district court sentenced the defendant to 10-years imprisonment on the first two counts and 2-years imprisonment on the remaining three counts, with each of the sentences to run concurrently.²  The appellant submitted a timely motion for a reduction of his sentences pursuant to Federal Rule of Criminal Procedure 35(b). In an order filed May 31, 1990, the district court granted the appellant's motion, reducing the appellant's sentence on Count 1 to time served and his sentence on Count 2 to five years probation.³ 

On August 31, 1992, the district court found that the appellant had violated the terms of his probation and ordered his probation to be revoked. In response, the appellant filed a motion pursuant to Federal Rule of Criminal Procedure 35(a) challenging the legality of the May 31, 1990 order sentencing him to five years probation on Count 2. In an order filed September 16, 1992, the district court rejected the appellant's challenge to its order of probation, but stated that, in the event the Tenth Circuit found error in this order, it was conditionally altering its May 31, 1990 order to read that the execution, rather than the imposition, of the appellant's sentence on Count 2 was being suspended.⁴  In a separate order filed September 16, 1992, the district court resentenced the appellant to 10-years imprisonment pursuant to its prior order revoking his probation.

The appellant is now appealing from the district court's order of August 31, 1992 as well as its subsequent orders of September 16, 1992.⁵  The appellant raises the following claims:

1) that the district court's May 31, 1990 order illegally sentenced him to 5-years probation on Count 2, 2) that the district court improperly revoked his probation because he had already completed his term of probation, and 3) that the district court's reimposition of a 10-year term of imprisonment constituted double jeopardy. We agree with the appellant that the district court's May 31, 1990 order illegally sentenced the appellant to 5-years probation on Count 2 and find that this order was not adequately corrected by the district court's subsequent orders of September 16, 1992. Accordingly, we hold that the district court's May 31, 1990 order must be vacated with respect to Count 2 and remand the case to the court for resentencing on this count.

The appellant advances two arguments in support of his contention that the district court's May 31, 1990 sentencing order was illegal.⁶  First, he argues that the imposition of probation on Count 2 was impermissible because he had already served his time on Count 2. According to the appellant, his sentence on Count 2 was inextricably linked to his sentence on Count 1 because the district court declared these sentences to be concurrent in its initial sentencing order of June 26, 1989. Consequently, when his sentence on Count 1 was reduced to time served, appellant argues that his sentence on Count 2 was similarly reduced to time served thereby leaving no prison time for the district court to reduce to probation.

The appellant's argument misconceives the concept of concurrent sentences. When two or more sentences are designated as concurrent, this designation means only that the sentences are to be served simultaneously. See Black's Law Dictionary 264 (5th ed. 1979). It does not mean that these sentences have been inextricably merged into a single sentence. Rather, concurrent sentences remain at all times distinct and independent sentences. Thus, an order reducing or reversing one sentence does not automatically affect a corresponding reversal or reduction of any other concurrent sentences. United States v. Montoya, 676 F.2d 428, 432 (10th Cir.), cert. denied, 459 U.S. 856 (1982); see United States v. Bush, 659 F.2d 163, 167-68 (D.C. Cir. 1981), United States v. Cardona, 650 F.2d 54, 57-58 (5th Cir. 1981); United States v. Durant, 648 F.2d 747, 752 (D.C. Cir. 1981).

Accordingly, we reject the appellant's contention that the district court improperly imposed probation on Count 2 because his sentence on this count had expired. Notwithstanding the district court's reduction of his sentence on Count 1 to time served, the appellant's sentence on Count 2 remained 10-years imprisonment until the district court independently reduced this sentence to 5-years probation.

The appellant next argues that the district court's May 31, 1990 sentencing order was illegal because the reduction of his sentence on Count 2 to 5-years probation violated the split sentencing limitations of 18 U.S.C. § 3651. We agree.

The district court reduced the appellant's sentence on Count 2 pursuant to Rule 35(b).⁷  However, the court's authority to reduce the appellant's sentence under this provision was circumscribed by the dictates of 18 U.S.C. § 3651.⁸  This provision prohibits a court from sentencing a defendant to a term of probation coupled with more than six months total imprisonment for a single offense. United States v. Shulman, 940 F.2d 91, 94 (4th Cir. 1991); United States v. Martin, 938 F.2d 883, 884-85 (8th Cir. 1991); United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir. 1979); Sibo v. United States, 332 F.2d 176, 176 (2d Cir. 1964). And what a court may not initially impose as a split sentence under § 3651 it may not subsequently craft under the authority of Rule 35(b). United States v. Carter, 704 F.2d 1063, 1064 (9th Cir. 1983) (" [S]ection 3651 is a limitation upon the Rule 35(b) power of the district court."); Advisory Committee Note, Fed. R. Crim. P. 35(b) ("Should the reduction to a sentence of probation occur after the defendant has been incarcerated more than six months, this would put into issue the applicability of 18 U.S.C. § 3651."); see United States v. Guevremont, 829 F.2d 423, 423-24 (3rd Cir. 1987) (reduced sentence imposed by district court under Rule 35(b) violated § 3651's split sentencing limitation).

In the instant case, the district court's May 31, 1990 sentencing order violated the split sentencing limitations of § 3651. At the time the district court reduced the appellant's sentence on Count 2 to 5-years probation, the appellant had already served 3 years, 5 months, and 2 days in jail on this count. Consequently, the net effect of the district court's sentencing order was to convert the appellant's sentence on Count 2 to a combined sentence of probation and prison. Since the appellant's prison sentence had already exceeded six months, however, § 3651 prevented the district court from sentencing the appellant to any term of probation. See Martin, 938 F.2d at 884 (split sentence of 8 months imprisonment and 12 months probation imposed after revocation of probation was illegal where defendant had already served 4 months in prison); United States v. Principato, 717 F.2d 1313, 1314 (9th Cir. 1983) (split sentence of 6 months imprisonment and 3 and 1/2 years probation was illegal where defendant had already served 6 months in prison), cert. denied, 465 U.S. 1081 (1984). Accordingly, we conclude that the district court's May 31, 1990 sentencing order was illegal.

Having concluded that the appellant was illegally sentenced to 5-years probation on Count 2, we must nevertheless determine whether this illegality was cured by any of the district court's subsequent actions. Under Rule 35(a), the district court had the authority to correct its May 31, 1990 sentencing order at any time. Martin, 938 F.2d at 885.

The district court purported to exercise its authority to corect an illegal sentence under Rule 35(a) in its September 16, 1992 order denying the appellant's Rule 35(a) motion. In this order, the court stated that it was conditionally altering its May 31, 1990 sentencing order nunc pro tunc, should it be found defective, to read that the execution rather than the imposition of the appellant's remaining prison term on count 2 was being suspended. While this conditional alteration may have resolved one defect,⁹  it did not alter the fact that the district court's May 31, 1990 sentencing order imposed on the appellant a split sentence combining probation with a prison term in excess of six months. Accordingly, the district court's conditional alteration of its prior sentencing order did not prevent this order from violating § 3651.

On the same day that the district court conditionally altered its May 31, 1990 sentencing order, the court, in a separate order, also resentenced the appellant to 10-years imprisonment. This sentencing order could be construed as a corrective order pursuant to Rule 35(a). See Martin, 938 F.2d at 884-85 (construing district court's resentencing of defendant upon revocation of probation as correction of illegal split sentence under Rule 35(a)); Guevremont, 829 F.2d at 427 (construing district court's subsequent alteration of illegal split sentence under Rule 36 as a corrective order pursuant to Rule 35(a)). Under the facts of this case, however, we believe that such an interpretation of the district court's action would be a fiction. The court did not realize it was correcting an illegal sentence at the time it resentenced the appellant to 10-years imprisonment; rather, it thought that it was resentencing the appellant for a violation of his probation. While 18 U.S.C. § 3653 permits a court to reimpose a lesser sentence than that originally imposed when revoking probation,¹⁰  a court may often feel compelled to reimpose its initial sentence in such a situation. Such a compulsion is less likely to exist, however, when a court is resentencing a defendant anew. Consequently, we do not believe it can be said that the district court would necessarily have imposed the same sentence on the defendant had it known it was resentencing the defendant pursuant to Rule 35(a). We therefore refuse to construe the district court's resentencing order as a corrective order under this rule.

Given our conclusion that neither of the district court's September 16, 1992 orders adequately remedied the court's May 31, 1990 sentencing order, we hold that this order must be vacated with respect to Count 2 and remand the case to the court for resentencing on this count. We reject the appellant's claim that, in lieu of remanding, we should simply strike that portion of the district court's May 31, 1990 sentencing order which placed the appellant on probation. A prisoner is not entitled to escape punishment for a valid conviction merely because the court committed an error in passing sentence. Bozza v. United States, 330 U.S. 160, 166 (1947). "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Id. at 166-67. Thus, a court may always correct an illegal sentence by imposing all or part of the sentence that might originally have been imposed. Principato, 717 F.2d at 1314.¹¹  In the instant case, therefore, the district court may impose any sentence that it was authorized to impose in its original sentencing order of June 26, 1989, so long as this sentence does not contain a term of probation.¹²  The defendant will of course be entitled to credit the time he has already been incarcerated against whatever sentence he receives. Martin, 938 F.2d at 885; Principato, 717 F.2d at 1314.

The appellant's second claim is that the district court erroneously revoked his probation because he had already completed his term of probation. The appellant argues that he spent more than 3 years in jail prior to the district court's May 31, 1990 sentencing order and another 2 years on probation prior to the district court's September 16, 1992 revocation order. Thus, he contends that he had already served five years of probation prior to the district court's revocation of his probation.¹³ 

Since the appellant failed to raise this issue below, we may review the appellant's claim only if it constituted plain error. See Fed. R. Crim. P. 52(b). Plain error is "obvious and substantial" error that affects the fairness, integrity, or public reputation of the judicial proceedings. United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir.), cert. denied, 112 S. Ct. 238 (1991).

The heart of the appellant's claim is that he is entitled to credit his prison time against his sentence of probation. In support of this proposition, the appellant relies on a footnote in Sullens v. United States, 409 F.2d 545, 548 n. 5 (5th Cir. 1969), where the court suggested that a defendant sentenced to probation is entitled to reduce that sentence by any time previously spent in detention. Not only is this footnote dicta, however, but it is also in tension with a number of court decisions holding that a term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court. See United States v. Freeman, 922 F.2d 1393, 1395 (9th Cir. 1991); United States v. Gaddis, 280 F.2d 334, 336 (6th Cir. 1960); Sanford v. King, 136 F.2d 106, 108 (5th Cir. 1943). Under these latter decisions, the appellant would not be entitled to credit his prior incarceration time against his sentence of probation since the district court failed to provide for such a result in its May 31, 1990 sentencing order.

Accordingly, we conclude that the district court's revocation of probation did not rise to the level of plain error. Given the absence of plain error, it is inappropriate for us to review this claim.

Finally, the appellant argues that the district court's September 16, 1992 order resentencing him to 10-years probation constituted double jeopardy. According to the appellant, he had already served two years of probation before his probation was revoked. Thus, when the district court resentenced him to 10-years imprisonment, his original sentence was increased from ten to twelve years, in violation of his right to be free from double jeopardy.¹⁴ 

Since the appellant failed to present his argument to the district court, we must once again review the appellant's claim for plain error. When reviewing potential errors of constitutional magnitude, however, we apply the plain error rule less rigidly. See Jefferson, 925 F.2d at 1254.

The appellant's argument was considered and rejected by this court in Thomas v. United States, 327 F.2d 795 (10th Cir.), cert. denied, 377 U.S. 1000 (1964). In that case, we held that a defendant is not entitled to credit time spent on probation against a subsequent prison sentence. Id. at 797. Accordingly, we concluded that a defendant initially sentenced to a suspended sentence of 5-years imprisonment was not twice placed in jeopardy when, after spending almost two years on probation, his probation was revoked and he was resentenced to five years imprisonment. Id.; accord United States v. Briones-Garza, 680 F.2d 417, 423 (5th Cir.), cert. denied, 459 U.S. 916 (1982); Hall v. Bostic, 529 F.2d 990, 991-92 (4th Cir. 1975); Kaplan v. Hecht, 24 F.2d 664, 665 (2d Cir. 1928).

Since the instant case is indistinguishable from Thomas, we conclude that the district court's resentencing of the appellant was consistent with the double jeopardy clause. Once again, therefore, we conclude that the appellant's claim falls short of plain error and that it is inappropriate for us to review it.

The district court is directed to VACATE its May 31, 1990 sentencing order with respect to Count 2 and the case is REMANDED to the district court for resentencing on this count. The mandate shall issue forthwith.