United States v. Detrara Howard

105 F.3d 667, 1997 U.S. App. LEXIS 4481, 1997 WL 8459

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 6, 1997
• Docket: 95-50357
• Status: Unpublished

Opinion

105 F.3d 667

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Detrara HOWARD, Defendant-Appellant.

No. 95-50357.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1996.
Decided Jan. 6, 1997.

Before: FARRIS, BEEZER, and TASHIMA, Circuit Judges.

MEMORANDUM*

STANDARD OF REVIEW

Whether a district court has jurisdiction is an question of law reviewed de novo. United States v. Yacoubian, 24 F.3d 1, 3 (9th Cir.1994).

DISCUSSION

Where one out of multiple convictions is reversed and remanded, and the others affirmed, a district court does not have jurisdiction to resentence on the affirmed counts. United States v. Lewis, 862 F.2d 748 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989). A district court's "authority to [resentence] must flow either from the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35." Id. at 750 (quoting United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988)).

The mandate reversing Howard's armed bank robbery conviction did not grant the district court jurisdiction to resentence on the affirmed convictions. Lewis, 862 F.2d at 750. Rule 35 does not grant the district court jurisdiction to resentence Howard because it only applies to illegal sentences, not illegal convictions. Id. District courts in the Ninth Circuit do not have inherent power to resentence. Id. at 750-51 (quoting Minor, 846 F.2d at 1189 n. 5) (quotations omitted).

An alleged violation of 18 U.S.C. § 3553(c) does not confer jurisdiction to resentence on the district court. The district court can only have jurisdiction pursuant to one of the two prescribed means. Lewis 862 F.2d at 750 (quoting Minor, 846 F.2d at 1187).

AFFIRMED.

* 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