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940 F2d 1536 United States v. Kersnick

940 F.2d 1536

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 89-50441.

United States Court of Appeals, Ninth Circuit.

Submitted July 17, 1991.*
Decided Aug. 19, 1991.
Rehearing granted and opinion vacated October 29, 1991.

Before KILKENNY, SNEED and FERGUSON, Circuit Judges.

1

MEMORANDUM**

2

The government appeals from the district court's vacation of Kersnick's sentence and conviction, arguing that the district court's ruling is both legally incorrect and based on an erroneous finding of governmental misconduct. We agree and reverse.

3

Kersnick pleaded guilty to criminal conduct that occurred before November 1, 1987, and therefore was not sentenced under the provisions of the Sentencing Reform Act of 1984 ("SRA"). As it is unclear just how the district court viewed Kersnick's letter and subsequent motion, we must first determine whether they may be construed as requests for relief under former Fed.R.Crim.P. 35 or as petitions to vacate, set aside or correct the sentence under 28 U.S.C. Sec. 2255.1 See United States v. Young, 936 F.2d 1050, ---- (9th Cir.1991) (per curiam).

4

Former Rule 35(a) permitted a defendant sentenced under pre-SRA law to mount a direct challenge at any time to an illegal sentence2 by asking the district court to correct that sentence, either by amending it or vacating it entirely. United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989). Former Rule 35(b) permitted a defendant sentenced under pre-SRA law to challenge the harshness of an otherwise legal sentence, but had to be filed within 120 days of sentencing. United States v. Smith, 650 F.2d 206, 208 (9th Cir.1981). Section 2255 is something of a catch-all, allowing a federal prisoner to mount a collateral attack on his sentence at any time. 28 U.S.C. Sec. 2255.

5

Kersnick's letter and subsequent motion clearly do not fall under the heading of Rule 35(b), as there is no indication that he was complaining about the harshness of an otherwise lawful sentence or making a plea for leniency. See United States v. Thayer, 857 F.2d 1358, 1360 (9th Cir.1988). Instead, Kersnick attacked the legality of his sentence based on the government's alleged failure to honor the terms of its plea agreement with Kersnick. We review the district court's factual findings for clear error, see United States v. Arellanes, 767 F.2d 1353, 1357 (9th Cir.1985) (section 2255), while examining de novo both the legality of the sentence imposed, see United States v. Roberson, 896 F.2d 388, 390 (9th Cir.) (Rule 35(a) motion), amended on rehearing, 917 F.2d 1158 (1990), and the district court's ruling on Kersnick's request for relief. See United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990) (section 2255 petition).

6

The plea agreement entered into between Kersnick and the government provided that, in exchange for Kersnick's plea of guilty to two of the indictment's sixteen counts, the government would dismiss the remaining counts, make no recommendation at sentencing as to a specific period of incarceration, and write to the Navy and the FAA after sentencing, "setting forth the government's view of the relative culpability of ... Kersnick." At sentencing Judge Hauk ordered the government "to make that phone call within two days", i.e., to notify the Navy that "[i]f they [the Navy] want to keep him [Kersnick] disbarred [sic] longer than that [four months], I'll set him free."

7

The record shows that the government honored the terms of its plea agreement with Kersnick and complied with the instructions of the court. Assistant United States Attorney Hennigan telephoned Debra Tronic, a member of the Navy Debarment Committee, two days after Kersnick's sentencing and informed her, inter alia, of Judge Hauk's warning of the consequences of Kersnick were debarred longer than four months. By letter dated two weeks after this call, Hennigan confirmed the earlier telephone conversation and provided Ms. Tronic with the sentencing documentation she had previously requested.

8

The record does not support the district court's finding that the government had failed either to honor the terms of its plea agreement or to comply with the court's instructions. Accordingly, the district court's vacation of Kersnick's sentence and conviction must be reversed as based on clear error.

9

Because we find no merit to Kersnick's remaining arguments, the district court's vacation of Kersnick's sentence and conviction is REVERSED and REMANDED with instructions to reinstate the original judgment of conviction and sentence.

*

The panel unanimously agrees that this case is suitable for submission on the briefs and without oral argument per Fed.R.App.P. 34(a) and 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

By holding as we do, we necessarily reject Kersnick's argument that double jeopardy bars this appeal. The government may appeal any reversal of a conviction where, as here, a successful appeal would result only in the reinstatement of the original conviction. United States v. Wilson, 420 U.S. 332, 353 (1975); United States v. Foumai, 910 F.2d 617, 619 (9th Cir.1990)

2

A direct challenge not to the legality of the sentence, but rather to the manner in which it was imposed, had to be filed within 120 days