United States v. Thomas Henrique

Thomas Henrique appeals the district court’s denial of his Fed.R.Crim.P. 35(a) motion to correct an illegal sentence imposed following entry of a guilty plea to conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 841 (a)(1) and 846. Henrique contends his sentence illegally prohibits him from being released on parole prior to completion of his entire term of imprisonment. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

In making his motion for correction of illegal sentence before the district court, Henrique apparently mistakenly relied on the version of Rule 35(a) applicable to offenses committed prior to November 1, 1987. This version of Rule 35(a) permitted the district court to “correct an illegal sentence at any time.” See Fed.R.Crim.P. 35(a) (1987).

Henrique attempts to style his appeal in this action as one from a denial of a 28 U.S.C. § 2255 motion for correction of sentence. Nonetheless, because Henrique has had the benefit of counsel throughout trial and on appeal, we decline to treat his Rule 35 motion as a section 2255 motion. See United States v. Kohl, 972 F.2d 294, 296-97 (9th Cir.1992) (where pro se defendant mistakenly filed…