United States v. Jerron Johns

435 F. App'x 628

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 2, 2011
• Docket: 08-50528
• Status: Unpublished

Opinion

MEMORANDUM *

Jerron Johns appeals the twenty-year mandatory minimum sentence imposed under 21 U.S.C. §§ 841(a)(1) and (b)(l)(A)(iii) following his guilty plea to distribution of crack cocaine with a prior felony drug conviction.

While this appeal was pending, President Obama signed into law the Fair Sentencing Act, which increased the quantity of crack cocaine required to trigger mandatory sentences under § 841(b)(1). See Pub.L. No. 111-220, 124 Stat. 2372. Johns asks that we vacate his sentence with instructions for resentencing pursuant to the Act. We reject his arguments for the reasons set forth in the opinion that we issue today in United States v. Baptist, 646 F.3d 1225, 2011 WL 2150993 (9th Cir.2011).

Johns also contends that the district court’s written judgment imposing a $100 assessment should be amended to comply with oral sentencing, which did not include the $100 assessment. The court’s failure to impose the assessment at his oral pronouncement was clear error, however, because it is statutorily mandated for convictions under 21 U.S.C. § 841. “[WJhen the oral sentence is illegal, the correction procedure of [Federal] Rule [of Criminal Procedure] 35(c) applies and the correction supersedes the erroneous oral sentence.” United States v. Colace, 126 F.3d 1229, 1231 (9th Cir.1997) (citing United States v. Edmonson, 792 F.2d 1492, 1496 n. 4 (9th Cir.1986) (“There can be no expectation of finality as to sentences that are illegal and are thus always subject to modification under Rule 35(a).”)). Imposition of the $100 assessment was therefore proper.

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.