United States v. Orville K. Best

Best entered a plea of guilty to a three count information charging him with aiding and abetting aliens to elude examination and inspection in violation of 8 U.S.C. § 1325 (2) and 18 U.S.C. § 2 . He was sentenced to a term of six months imprisonment on each of the three counts, said sentences to run concurrently. A three-year probationary term was added on top of the prison term. After he had been in jail for almost five months the appellant filed a motion under Rule 35, Fed.R.Crim.P., to correct excessive sentence, arguing that since the maximum sentence on each count was six months in prison, the three six-month jail terms represented the maximum possible penalty and therefore the additional probation term was excessive and illegal. The district court granted the motion to correct sentence and resentenced Best to six months imprisonment on Count One and three years probation on Counts Two and Three, said sentences of probation to run concurrently to each other but consecutive to the jail term. Appellant argues that the corrected sentence increased his punishment and thereby violated the double jeopardy clause. We agree and remand for resentencing.

It is well established that…