Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 84-00236).
Becker, Greenberg and Van Dusen, Circuit Judges.
VAN DUSEN, Senior Circuit Judge
This case requires us to resolve two issues. First, we must decide whether the district court erred by amending petitioner-appellant's judgment of sentence to revoke his two-year special parole term in response to petitioner's habeas corpus petition. This habeas petition asserted that petitioner's guilty plea must be vacated because it was not knowing and voluntary as he had not been advised of the possibility of a mandatory special parole term prior to entering the plea. Second, we must decide whether the district court erred by failing to vacate petitioner's guilty plea as petitioner sought in his habeas petition. For the reasons that follow, we conclude that the district court erred by amending petitioner's judgment of sentence to revoke his two-year special parole term and that it did not err by failing to vacate petitioner's guilty plea. Accordingly, we will reverse in part and affirm in part.
The following facts are essentially uncontested.
On November 8, 1984, petitioner-appellant, Domenic DeLuca, pled guilty in the United States District Court for the District of New Jersey to one count of possession of methamphetamine with intent to distribute and one count of conspiring to possess methamphetamine with intent to distribute. Petitioner pled guilty pursuant to a plea agreement. The plea agreement noted that the charges to which petitioner was to plead guilty carried a maximum sentence of ten years in prison and a $30,000 fine. It did not note that petitioner could be subject to a term of special parole. Petitioner was sentenced to two consecutive three-year terms of imprisonment for a total prison term of six years.
The sentence was, however, illegal because it did not include an additional special parole term of two years on the substantive count, as was then required by 21 U.S.C. § 841(b)(1)(B).*fn1 The district court, apparently realizing this, issued an amended order on April 9, 1985, that added the two years of special parole mandated by 21 U.S.C. § 841(b)(1)(B). It did so pursuant to Fed.R.Crim.P. 35(a), which gives it the power to correct an illegal sentence at any time. See footnote 3 and surrounding text, infra. However, this amended sentence was imposed in an illegal manner because petitioner was not present as is required by Fed.R.Crim.P. 43(a).
In January 1989, three-and-a-half years later, petitioner filed the present habeas motion to vacate his guilty plea, alleging that he had not been advised of the possibility of a mandatory special parole term prior to entering his plea, and that, therefore, his plea was not knowing and voluntary as required by Fed.R.Crim.P. 11(d). The government then conceded that it could not establish that petitioner had been advised of the possibility of a special parole term prior to the plea because the court reporter was unable to find the transcript of the hearing at which petitioned pled guilty*fn2 and because the plea agreement did not mention the special parole term.
On April 25, 1989, the district court denied petitioner's motion to vacate his guilty plea, finding that the plea was knowing and voluntary. However, because the special parole term had not been imposed in open court in petitioner's presence, the court amended the judgment of sentence by revoking the two-year special parole term.
We note initially that the district court erred by amending petitioner's judgment of sentence to revoke his two-year special parole term. 21 U.S.C. § 841(b)(1)(B) required that petitioner's sentence include a two-year special parole term, and a sentence that did not include one was therefore illegal. The only remaining issue is whether, since the government does not appeal, we have jurisdiction to reverse the district court's decision amending the sentence to revoke the special parole term. We conclude that we do because Fed.R.Crim.P. 35(a), as it applies to offenses committed prior to November 1, 1987, allows courts to correct an illegal sentence at any time,*fn3 and Fed.R.Crim.P. 54(a) provides that the Federal Rules of Criminal Procedure apply in all federal courts, including the courts of appeals. It follows that this court may correct ...