United States v. Dominic Principato

The district court in 1980 imposed upon appellant a “split” sentence of two years imprisonment (18 months suspended) plus five years probation. That sentence was appropriate under the provisions of 18 U.S.C. § 3651 . Two years later the same district court, upon a petition for revocation of probation, imposed a second “split” sentence of 18 months (12 months suspended) plus three and one-half years probation. This sentence, as the government acknowledges, was not appropriate because section 3651 prohibits a defendant who has already served six months in prison from receiving a second sentence combining both imprisonment and probation. United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir.1979). Defendant now appeals the district court’s denial of his motion to correct the illegal sentence pursuant to Fed.R.Crim.P. 35(a).

While we agree with defendant that his second sentence was illegal and must be corrected, we do not agree with his argument that the only possible remedy is to terminate his remaining probation term. In Clayton , we held that a court may always correct an illegal sentence by imposing all or part of the sentence which might originally have been imposed. 588 F.2d…