United States of America, Plaintiff-appellee, v. Thomas Dean Webb, Defendant-appellant, 104 F.3d 366 (9th Cir. 1996)

MEMORANDUM^** 

Thomas Dean Webb appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence imposed following his 1991 probation revocation. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2255. We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and remand for clarification of Webb's sentence.

On April 7, 1986, Webb pleaded guilty to conspiracy to possess and possession with intent to distribute methamphetamine, in violation of 18 U.S.C. §§ 841(a) (1), 846.¹  Webb was sentenced on June 23, 1986, to three years imprisonment and five years parole on Count One. On Count Four, Webb was sentenced to fifteen years imprisonment with a ten year special parole term. The execution of the fifteen year sentence was suspended and Webb was placed on probation for five years.

Webb violated his probation on October 19, 1990 when he was convicted of multiple state narcotics and firearms violations. On February 4, 1991, the district court revoked Webb's probation and remanded him to federal custody to serve the fifteen year sentence which had been previously suspended. The judgment also noted that Webb was still subject to the ten year special parole term.

Webb challenges the legality of the ten-year special parole term imposed as part of his sentence for violation of 21 U.S.C. § 841(a) (1). The legality of Webb's special parole term turns upon which penalty provision he was sentenced under, 21 U.S.C. § 841(b) (1) (A) or (B). See United States v. Torres, 880 F.2d 113, 114-15 (9th Cir. 1989) (per curiam); United States v. Brickell, 872 F.2d 307, 308-10 (9th Cir. 1989) (per curiam).

Notwithstanding the government's assertion that Webb was sentenced under subsection (B), the record is unclear as to the precise statutory basis for Webb's sentence. Thus, we order a limited remand of this case to the district court for clarification of the statutory basis for Webb's sentence. See Brickell, 872 F.2d at 810.

REMANDED.