United States v. Mark A. Barquera

26 F.3d 133

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mark A. BARQUERA, Defendant-Appellant.

No. 93-10670.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 1994.*
Decided June 1, 1994.

Before: CHOY, SKOPIL, and FERGUSON, Circuit Judges.

1

MEMORANDUM**

2

Mark Barquera appeals the district court's order revoking his probation, arguing that his probation was illegal and that reinstitution of a prison term following revocation of that probation constitutes double jeopardy. There is no dispute that the district court's intent in the original sentencing was to require Barquera to serve one year in prison and an additional five years on probation. Such a sentence violated former 18 U.S.C. Sec. 3651, which limited prison terms to six months when the court also imposed a term of probation. That illegal sentence was corrected, however, by Barquera's first appeal.

3

Because Barquera's sentence was corrected, his claim that he was not legally on probation is without merit. An illegal split sentence can be corrected in either of two ways: by reducing the prison term to the time allowed by statute, or by deleting the term of probation. See United States v. Principato, 717 F.2d 1313, 1314 (9th Cir.1983), cert. denied 465 U.S. 1081 (1984). In his first appeal, Barquera successfully argued that his sentence should be corrected by allowing credit for time served, thus reducing his actual prison sentence to the six months allowed by law. Because Barquera's corrected sentence legally included probation, revocation of his probation and his subsequent incarceration do not violate the constitutional prohibition of double jeopardy.

4

AFFIRMED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

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