Traslavina
United States v. Traslavina
Opinion
Lead Opinion
MEMORANDUM **
Federal prisoner Ernesto Traslavina appeals pro se the district court’s denial of *772 his Fed.R.CrimP. 85(a) motion to correct his sentence and his Fed.R.CrimP. 41(e) motion for the return of his seized airplane. We review de novo whether a sentence was imposed illegally. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986). The denial of a motion for return of property under Rule 41(e) is also reviewed de novo. United States v. Marolf, 173 F.3d 1213, 1216 (9th Cir.1999). We have jurisdiction under 28 U.S.C. § 1291 and we reverse, vacate in part and remand.
1. Sentencing Errors.
a. 21 U.S.C. § 8 ^6 sentence.
Traslavina first contends the district court erred by denying his motion to correct his sentence under Fed.R.CrimP. 35(a). Under the operative version of Rule 35(a), an illegal sentence can be corrected “at any time.” United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990). 1 An illegal sentence is “one which is not authorized by the judgment of conviction, or is in excess of the permissible statutory penalty for the crime, or is in violation of the Constitution.” United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993).