United States v. Luskin

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v. No. 00-4846

PAUL LUSKIN,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-87-478-JFM)

Argued: June 6, 2001

Decided: August 17, 2001

Before WILLIAMS, KING, and GREGORY, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Rod J. Rosenstein, Assistant United States Attorney,
Greenbelt, Maryland, for Appellant. Martin Stanley Himeles, Jr.,
ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & BETTER,
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Stephen M.
Schenning, United States Attorney, Greenbelt, Maryland, for Appel-
lant. Herbert Better, Cynthia L. Tippett, ZUCKERMAN, SPAEDER,
GOLDSTEIN, TAYLOR & BETTER, L.L.P., Baltimore, Maryland;
William J. Genego, LAW OFFICES OF WILLIAM J. GENEGO,
Santa Monica, California, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The defendant, Paul Luskin, moved the district court to reduce his
sentence pursuant to the former version of Fed. R. Crim. P. 35(b),
which provides that a "motion to reduce a sentence may be made, or
the court may reduce a sentence without motion, within 120 days after
the sentence is imposed." On November 2, 2000, the district court
granted Luskin's motion and reduced his sentence. On appeal, the
Government argues that the district court lacked jurisdiction to enter-
tain Luskin's motion; it alternatively contends that the sentence
reduction was in error.

We hold that the district court possessed jurisdiction to consider
Luskin's Rule 35(b) motion, but we nevertheless conclude that it erro-
neously reduced Luskin's sentence. Accordingly, we vacate the dis-
trict court's November 2, 2000 order and amended judgment, and we
remand for proceedings consistent with this opinion.

I.

In October 1987, Luskin was indicted on eight felony counts after
he hired several hit men to murder his wife. The indictment charged
Luskin with one count of conspiracy, in violation of 18 U.S.C. § 371;
three counts of using interstate commerce facilities in the commission
of murder for hire, in violation of 18 U.S.C. § 1952A; three counts of
using a firearm in relation to a crime of violence, in violation of 18
U.S.C. § 924(c); and one count of possession of an unregistered
silencer, in violation of 26 U.S.C. § 5861(d). 1 The jury convicted
Luskin on each count.
_________________________________________________________________
1 Luskin's efforts, as detailed in our opinion affirming his convictions
on direct appeal, paint a disturbing picture:

2
The district court sentenced Luskin on April 29, 1988. The court
imposed consecutive five-year terms on each of the three § 924(c)
counts, for a total of fifteen years. The court also sentenced Luskin
to a total of twenty years' imprisonment on the remaining five counts.
Under the former version of 18 U.S.C. § 4205(a), Luskin was eligible
for parole upon serving one-third of the twenty-year sentence. The
fifteen-year sentence, however, was non-parolable and could not be
served concurrently with the twenty-year sentence.

The judgment stipulated that the non-parolable fifteen-year sen-
tence be served consecutively to the parolable twenty-year sentence,
i.e., it provided that Luskin serve the parolable term before serving
the non-parolable term. On September 17, 1990, the district court
granted Luskin's motion to reduce the parolable sentence to nineteen
years and eight months, resulting in a total sentence of thirty-four
years and eight months, fifteen of which remained non-parolable.

Luskin appealed his conviction, and we affirmed. See United States
v. Luskin, No. 88-5068, 1989 WL 106996 (4th Cir. Sept. 19, 1989)
(unpublished). After exhausting his direct appeals, Luskin twice
sought post-conviction relief pursuant to 28 U.S.C.§ 2255. The dis-
trict court denied his separate petitions, and we affirmed both times.
See United States v. Luskin, No. 91-6659, 1993 WL 22010 (4th Cir.
_________________________________________________________________

Paul Luskin was involved in a long and bitter divorce proceeding
with his wife Marie. At stake was the bulk of Luskin's assets
including a successful Florida business. Rather than proceed
with the divorce and risk losing such assets, Luskin resolved to
have his wife killed. . . . [Sonny] Cohen traveled to Florida to
carry out the plan. . . . [P]osing as a floral delivery man, Cohen
gained entry to Marie Luskin's home and shot her in the head.
She survived the wound. . . . Cohen [then] recruited [James]
Manley to aid him in completing the murder contract.. . . [T]he
two traveled to Florida together, devised an elaborate scheme to
finish their job, but ultimately failed. . . . [T]he third and final
attempt to kill Mrs. Luskin . . . . also resulted in failure.

United States v. Luskin, No. 88-5068, 1989 WL 106996 (4th Cir. Sept.
19, 1989) (unpublished).

3
Feb. 3, 1993) (unpublished); United States v. Luskin, 926 F.2d 372
(4th Cir. 1991).

On March 21, 1996, Luskin filed another § 2255 petition with the
district court, contending that his sentence was based on a "misappre-
hension of law." J.A. 81p. The court, however, again denied relief. On
September 30, 1996, Luskin moved the district court"to reconsider
the denial of the sentencing claim presented in his motion pursuant to
28 U.S.C. § 2255."

While Luskin's motion for reconsideration was pending, the
Supreme Court rendered its decision in United States v. Gonzales, 520
U.S. 1 (1997). In Gonzales, the Court held that § 924(c) sentences
must be served consecutively to state sentences. In reaching its con-
clusion, the Court also ruled that sentencing courts are not bound to
order defendants to serve § 924(c) sentences before serving other sen-
tences. See id. at 7-8.

Prior to Gonzales, the Bureau of Prisons (BOP) required prisoners
to serve § 924(c) non-parolable sentences before serving parolable
sentences, regardless of the sequence indicated by the sentencing
court. In response to Gonzales, however, the BOP in 1998 issued a
revised Operations Memorandum retroactively mandating that prison-
ers serve their sentences in the sequence specified by the judgment
and commitment order.

This change in policy had an immediate effect on Luskin's eligibil-
ity for parole, and it essentially denied Luskin four years of parole
consideration. Prior to the revised Operations Memorandum, the BOP
treated Luskin as serving the non-parolable portion of his sentence
before he served his parolable sentence. Consequently, he was not
deemed eligible for parole until 2004.2 2
_________________________________________________________________
2 The parole eligibility date of 2004 is calculated as follows. Luskin
was incarcerated in 1988. Because the BOP originally required him to
serve the non-parolable sentence first, he had to serve 15 years before he
started serving the parolable term. Luskin received good time credits on
the non-parolable sentence that reduced his sentence by five years. Thus,
Luskin only had to serve 10 years of the non-parolable sentence. After
he served the 10 years, Luskin had to serve one-third of the parolable
term (roughly six years) before he was eligible for parole. Luskin there-
fore had to serve a total of 16 years before he became eligible for parole,
which fixes a parole eligibility date at 2004.

4
After the revised Memorandum, however, the BOP reversed the
sequence of Luskin's sentences to conform to the judgment. As noted
previously, the judgment made the non-parolable sentence consecu-
tive to the parolable sentence. The BOP therefore treated Luskin as
having commenced service of the parolable portion of his sentence
before the non-parolable sentence. Thus, it determined that Luskin's
eligibility for parole began ten years earlier, in 1994.3 Because the
3
BOP did not reverse the sequence of his sentences until 1998, Luskin
was deprived of parole consideration for four years (he should have
received a parole hearing in 1994). Luskin was accorded a parole
hearing in July 1998, but the Parole Commission denied parole on
October 1, 1998.44

On October 5, 1998, Luskin filed a supplemental memorandum in
support of his motion for reconsideration, which was still pending in
the district court. Luskin contended that the court had "misappre-
hended the effect of designating the non-parolable sentences as con-
secutive to all other sentences." J.A. 98. Luskin asserted that, in
essence, the district court had misconceived the law by failing to
anticipate the holding of Gonzalez that§ 924(c) sentences need not be
served before other sentences.

The district court, according to Luskin, believed at the time of sen-
tencing that Luskin would have to serve his non-parolable § 924(c)
sentence prior to the parolable sentence, even though the judgment
ordered just the opposite. In other words, the court considered the
terms of the judgment irrelevant to Luskin's sentence sequence inas-
much as the BOP would require him to serve the non-parolable term
first. In support of this assertion, Luskin noted that the district court
_________________________________________________________________
3 The parole eligibility date of 1994 is calculated as follows. Luskin
was incarcerated in 1988. Because the BOP required him to serve the
parolable sentence first, Luskin became eligible for parole after serving
only one-third of his parolable sentence. Luskin therefore became eligi-
ble for parole after serving roughly six years, which fixes a parole eligi-
bility date of 1994.
4 Even had the Commission granted Luskin parole, he would not have
been released. Because the BOP determined that Luskin must serve his
parolable sentence first, he would have been obligated to complete the
fifteen-year non-parolable portion of his sentence before being released.

5
had indicated in its "Report on Committed Offender," forwarded to
the Parole Commission, that "Mr. Luskin must serve a 15-year non-
parolable term prior to a consecutive parolable 20-year term." J.A.
122-23. The court's statement obviously conflicted with the terms of
its judgment and commitment order, which required Luskin to serve
the parolable term before the non-parolable term. Luskin therefore
asked the district court to vacate his sentence and resentence him.
Specifically, Luskin requested, inter alia, that he serve the non-
parolable sentence first.

The Government opposed Luskin's motion for reconsideration,
contending Luskin's "assertion that the district[c]ourt intended the
parolable term to follow the non-parolable term, rather than precede
it as implemented by the Bureau of Prisons, cannot possibly justify
vacating the sentence under Section 2255." J.A. 136. Instead, the
Government argued that Luskin's only "lawful remedy would be to
seek correction of the written judgment order under Federal Rule of
Criminal Procedure 36 to comport with the Court's articulated inten-
tion." J.A. 136.

On September 3, 1999, the district court granted in part Luskin's
motion for reconsideration of his § 2255 petition. The court recog-
nized Luskin's argument that it "misapprehended the law" to be "well
founded." J.A. 226. The court found that it had erroneously made "the
section 924(c) sentences consecutive to the substantive offenses
instead of vice versa." J.A. 227. It noted that it had made the mistake
because at the time of sentencing, "it was the common understanding
of judges, lawyers, and the Bureau of Prisons that whatever the
sequence of the sentences directed in the criminal judgment order
may have been, non-parolable sentences were deemed to be served
before parolable sentences." J.A. 227. The court found that its "mis-
understanding of law" had created a "manifest injustice" because it
compromised Luskin's opportunity for parole consideration. The
court therefore ordered the clerk "to enter an amended criminal judg-
ment and commitment order to reflect that Luskin's parolable non-
section 924(c) sentences are to run consecutive to his non-parolable
section 924(c) sentences." J.A. 232. The Government did not appeal.

On December 3, 1999, Luskin filed a motion for a reduction of sen-
tence under Fed. R. Crim. P. 35(b), "so that he will not be forced to

6
spend virtually the rest of his life in prison." J.A. 250. The version of
the rule applicable to Luskin, i.e., to those persons committing
offenses prior to November 1, 1987, provides, "[a] motion to reduce
a sentence may be made . . . within 120 days after the sentence is
imposed." Fed. R. Crim. P. 35(b), amended by Pub. L. No. 98-473,
98 Stat. 2015 (1985). Luskin maintained that the district court's Sep-
tember 3, 1999 order had granted his motion for§ 2255 relief. He
therefore asserted that the order had the effect of vacating the prior
judgment and sentence, thereby restarting the 120-day clock for filing
a motion for a reduction of sentence pursuant to Rule 35(b). The Gov-
ernment countered, however, that the district court's September 3,
1999 order simply corrected a clerical error in conformance with Fed.
R. Crim. P. 36. The Government also argued that even had the district
court accorded Luskin relief under § 2255, it was not authorized to
reduce Luskin's sentence under Rule 35(b).

The district court then granted Luskin's Rule 35(b) motion and
scheduled a hearing to reduce Luskin's sentence. The court found that
its September 3, 1999 order had indeed granted relief under § 2255
and that "[n]o clerical mistake was involved in the imposition of the
original sentence." J.A. 284. Rather, the court found that it "ex-
pressly" stated in its opinion that the "error was based upon [its] own
misapprehension of law." J.A. 284. The court therefore reasoned that
it "necessarily vacated the original sentence and set the judgment
aside under the express terms of 28 U.S.C. § 2255." J.A. 284 (citing
United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997); United States
v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999)). The court concluded
that its vacature of the judgment and sentence had the effect of afford-
ing Luskin "120 days in which to file a Rule 35(b) motion." J.A. 284
(citing United States v. Ackerman, 619 F.2d 285 (3d Cir. 1980)).

At the sentencing hearing, the Government argued that a reduction
was improper because Luskin's § 924(c) non-parolable sentence was
already below the mandatory minimum. Citing Deal v. United States,
508 U.S. 129 (1993), the Government maintained that Luskin should
have received consecutive sentences of five, ten, and ten years, for a
total of twenty-five years, on the three non-parolable § 924(c) counts.
The Government contended that because Luskin's non-parolable sen-
tence was below the prescribed statutory minimum, a reduction of the
parolable term would be inappropriate.

7
Although the district court was aware that Luskin's non-parolable
sentence was below the lawful minimum, the court subsequently
reimposed Luskin's fifteen-year non-parolable term and reduced his
parolable term to ten years, thereby effectively reducing his sentence
from thirty-four years and eight months to twenty-five years. The
court reduced the sentence because it believed "that there will be no
useful purpose served by having Mr. Luskin incarcerated" for a longer
period of time. J.A. 394. On November 2, 2000, the court issued an
order and entered an amended judgment implementing the Rule 35(b)
reduction. The Government appeals.

II.

The Government insists that the sentence reduction was erroneous
for three reasons. First, it contends that the district court lacked juris-
diction to grant Luskin's Rule 35(b) motion because the court's Sep-
tember 3, 1999 order amending the judgment and commitment order
was not based on § 2255, but was simply a correction of a clerical
error pursuant to Fed. R. Crim. P. 36. The Government argues that
merely invoking Rule 36 does not "impose" a new sentence and
thereby satisfy the jurisdictional prerequisite for entertaining a Rule
35(b) motion. Second, the Government maintains that, even if we
construe the September 3 order as a grant of relief under § 2255, the
district court's reversal of the sequence of Luskin's non-parolable and
parolable sentences was not an imposition of sentence that gives rise
to jurisdiction under Rule 35(b). Finally, the Government asserts that,
even if the district court had jurisdiction to reduce Luskin's sentence
under Rule 35(b), the reduction itself was improper.

The Government's appeal of the district court's Rule 35(b) sen-
tence reduction is authorized by 18 U.S.C. § 3731. See United States
v. King, 824 F.2d 313, 315 (4th Cir. 1987); United States v. Wright
Contracting Co., 728 F.2d 648, 650 (4th Cir. 1984); see also United
States v. Hetrick, 644 F.2d 752, 755 (9th Cir. 1981). We review de
novo the district court's determination that it possessed jurisdiction to
modify Luskin's sentence. See United States v. Barton, 26 F.3d 490,
491 (4th Cir. 1994); United States v. Stump, 914 F.2d 170, 172 (9th
Cir. 1990). The district court's decision to reduce Luskin's sentence
is reviewed for an abuse of discretion. See United States v. Pridgen,

8
64 F.3d 147, 150 n.3 (4th Cir. 1995). We address the Government's
contentions in turn.

A.

The Government argues that the district court did not have jurisdic-
tion to consider Luskin's motion. The former Rule 35(b) provides that
a court may reduce a defendant's sentence if the defendant files a
motion for a reduction "within 120 days after the sentence is
imposed." The Government asserts that the district court could not
have "imposed" a new sentence because the court did not have the
authority to act under § 2255. As the Government correctly points
out, § 2255 relief is limited to those situations in which a defendant
alleges constitutional or jurisdictional error or if the district court
makes an "error of law" that constitutes "a fundamental defect which
inherently results in a complete miscarriage of justice." United States
v. Addonizio, 442 U.S. 178, 188 (1979) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)).

The Government posits that the district court's misapprehension of
law regarding the sequence of Luskin's sentence was not a fundamen-
tal error that resulted in a miscarriage of justice. In addition, it asserts
that the district court could have relied on Fed. R. Crim. P. 36 to cor-
rect the sentence. Rule 36 provides, "Clerical mistakes in judgments,
orders or other parts of the record and errors in the record arising
from oversight or omission may be corrected by the court at any time
after such notice, if any, as the court orders."

Indeed, the correction of a clerical error pursuant to Rule 36 does
not involve the imposition of a new sentence. See, e.g., United States
v. Nichols, 169 F.3d 1255, 1280 (10th Cir.), cert. denied, 528 U.S.
934 (1999). The Government also notes that some courts have held
that Rule 36 authorizes a district court to amend a written sentencing
order at any time to make it conform to the court's intent at sentenc-
ing. See United States v. Tramp, 30 F.3d 1035, 1036 (8th Cir. 1994);
United States v. McAfee, 832 F.2d 944, 946 (5th Cir. 1987). The Gov-
ernment contends that, because the district court did not have the
authority to vacate the judgment and sentence pursuant to § 2255 and
the court's order can be construed as correcting a clerical error under

9
Rule 36, there is no new imposition of sentence that gives rise to
jurisdiction under Rule 35(b).

The Government's argument on this point must fail. In essence, the
Government seeks to challenge the merits of the district court's Sep-
tember 3, 1999 order, which altered the sequence of Luskin's sen-
tence. We point out, however, that our review is limited to analyzing
the propriety of the district court's sentence reduction, which was
entered on November 2, 2000. The issue of whether the district court
had the authority to grant § 2255 relief is not properly before us.

The Government does not dispute that an order granting a motion
for § 2255 relief is appealable. See 28 U.S.C. § 2255 ("An appeal may
be taken to the court of appeals from the order entered on the motion
as from a final judgment on application for a writ of habeas corpus.").
If the Government had desired to challenge the propriety of the dis-
trict court's September 3, 1999 order granting§ 2255 relief, it should
have appealed from that order. Its failure to appeal precludes us from
considering the merits of the court's order granting Luskin's § 2255
motion. See United States v. Carolina Parachute Corp., 907 F.2d
1469, 1472 (4th Cir. 1990) (recognizing that under principles of col-
lateral estoppel and res judicata, the Government's failure to appeal
from a final order precludes it from re-litigating issues resolved by the
order).

In addition, the district court's order cannot be construed as a cor-
rection of a clerical error pursuant to Rule 36. Generally, we defer to
a district court's interpretation of its own order. See In re Tomlin, 105
F.3d 933, 941 (4th Cir. 1997); Anderson v. Stephens, 875 F.2d 76, 80
n.8 (4th Cir. 1989). In its order granting Luskin's Rule 35(b) motion,
the district court found that its September 3, 1999 order granted
Luskin relief under § 2255. The court specifically indicated its "Sep-
tember 3, 1999 opinion was based upon Section 2255 and not Fed. R.
Crim. P. 36." J.A. 284.

Our objective analysis of the September 3, 1999 opinion and order
confirms the district court's subjective interpretation. The court's
opinion and order are devoid of any reference to Fed. R. Crim. P. 36.
Instead, the court's ruling indicates that the relief was granted pursu-
ant to § 2255. The court's order specifically granted Luskin's motion

10
for reconsideration. That motion sought to have the district court "re-
consider the denial of the sentencing claim presented in [Luskin's]
motion pursuant to 28 U.S.C. § 2255." (emphasis added). J.A. 85.
Moreover, the court held that it had committed a misapprehension of
law that constituted a "manifest injustice." J.A. 226-28. The court's
use of this language demonstrates that it relied upon, and granted
relief under, § 2255. See Addonizio, 442 U.S. at 188 (holding that
§ 2255 relief is warranted when a court's misapprehension of law
results in a "miscarriage of justice").5
5

In light of the deference owed to the district court in such matters,
buttressed by our independent analysis, it certainly appears that the
court reasonably interpreted its own order. We therefore conclude that
the district court's September 3, 1999 order granted Luskin relief
under 28 U.S.C. § 2255.

B.

Although the district court granted relief under§ 2255, the Govern-
ment nevertheless argues that the district court did not possess juris-
diction to reduce Luskin's sentence pursuant to Rule 35(b). A motion
for reduction of sentence under Rule 35(b) is available only when the
defendant files the motion "within 120 days after the sentence is
imposed." Fed. R. Crim. P. 35(b) (emphasis added).

The Government essentially argues that the district court never
"imposed" a sentence. It points out that upon granting relief under
_________________________________________________________________
5 The court's reliance on § 2255 is further confirmed by its rejection of
one of Luskin's other grounds for relief. Luskin had argued that the pro-
mulgation of a recent parole regulation had the effect of negating the dis-
trict court's expectation that Luskin would receive parole. See 28 C.F.R.
§ 2.20 note (providing that a murder for hire crime "shall not justify a
grant of parole at any point in the prisoner's sentence unless there are
compelling circumstances in mitigation (e.g., a youthful offender who
participated in a murder planned and executed by his parent)"). The
court, however, denied relief on that ground because"the Supreme Court
has expressly held that a judge's erroneous belief concerning the parole
consequences of a sentence does not entitle an inmate to relief under 28
U.S.C. § 2255." J.A. 230 (emphasis added).

11
§ 2255, the district court had four options: (1)"discharge the pris-
oner"; or (2) "resentence him"; or (3)"grant a new trial"; or (4) "cor-
rect the sentence as may appear appropriate." The Government
contends that the court merely corrected Luskin's sentence. Because
the court chose to "correct the sentence" and did not "resentence"
Luskin, the Government urges that the court never"imposed" a new
sentence. If the court did not impose a sentence, the argument goes,
it was barred from reducing Luskin's sentence under Rule 35(b).

We disagree. The Government's argument on this point ignores the
plain language of § 2255. When a district court grants relief pursuant
to § 2255, "the court shall vacate and set the judgment aside." The
vacature of the judgment under § 2255 necessarily includes the defen-
dant's sentence. See Teague v. Lane, 489 U.S. 288, 314 n.2 (1989)
("As we have often stated, a criminal judgment necessarily includes
the sentence imposed upon the defendant."); see also United States v.
Colvin, 204 F.3d 1221, 1224 (9th Cir. 2000) (recognizing that the
judgment of conviction includes the adjudication of guilt and the
defendant's sentence); Kapral v. United States , 166 F.3d 565, 569 (3d
Cir. 1999) (same).

Here, the district court granted Luskin relief pursuant to § 2255.
Under the procedures set forth therein, the original judgment and sen-
tence were set aside and the district court "imposed" an amended
criminal judgment and commitment order, which included the amend-
ment to Luskin's sentence. Even if we were to agree with the Govern-
ment's assertion that the district court "corrected the sentence," as
opposed to resentencing Luskin, it ultimately had to impose a new
corrected sentence because the original sentence had been vacated
pursuant to the mandate of § 2255. See United States v. Torres-Otero,
232 F.3d 24, 30-32 (1st Cir. 2000) (noting that the correction of sen-
tence under § 2255 involves the vacature of the original sentence and
imposition of a new sentencing judgment).

Because the district court vacated Luskin's original sentence and
imposed a new sentence pursuant to § 2255, the district court pos-
sessed jurisdiction to reduce Luskin's sentence in accordance with
Rule 35(b). See Ackerman, 619 F.2d at 288 (holding that a § 2255
vacature of an original sentence and subsequent reimposition of a new
sentence affords a defendant "120 days within which to file a Rule 35

12
petition to reduce the new sentence"). Having held that the district
court possessed jurisdiction to entertain Luskin's Rule 35(b) motion,
we must consider the propriety of the district court's sentence reduc-
tion.

C.

The Government contends that the district court's decision to
reduce Luskin's sentence constituted an abuse of discretion. We are
constrained to agree. Although a district court has considerable lati-
tude to reduce a sentence under Rule 35(b), its discretion is not unfet-
tered. See United States v. Guglielmi, 929 F.2d 1001, 1005 (4th Cir.
1991) ("Despite the broad discretion so afforded, we have not hesi-
tated to establish boundaries beyond which a district court may not go
in imposing sentence."). For example, our sister circuits have held
that a court's authority to reduce sentences under Rule 35(b) is lim-
ited to the reduction of "lawful" sentences. United States v. Stump,
914 F.2d 170, 172 (9th Cir. 1990); United States v. Mescaine-Perez,
849 F.2d 53, 58 (2d Cir. 1988); United States v. Colvin, 644 F.2d 703,
704 (8th Cir. 1981); United States v. Olds, 426 F.2d 562, 565 (3d Cir.
1970).

In this case, the district court reduced a sentence that cannot be
considered lawful. In its original sentencing order, the district court
imposed three consecutive sentences of five years for each violation
of 18 U.S.C. § 924(c). Thereafter, the Supreme Court held in Deal
that the plain language of the statute requires a defendant who is con-
victed of more than one violation of § 924(c) in a multi-count indict-
ment to be sentenced to a consecutive enhanced term for each
additional count. At the time Luskin was sentenced, the statutory
enhancement was ten years. See Pub. L. No. 98-473, Title II,
§ 1005(a), 98 Stat. 1837 (1984) ("In the case of his second or subse-
quent conviction under this subsection, such person shall be sentenced
to imprisonment for ten years."). Thus, Luskin should have received
non-parolable consecutive sentences of five years for his first convic-
tion under § 924(c) and ten years for each of the other § 924(c) con-
victions. Luskin therefore received a windfall from the sentencing
error: the court imposed a sentence that was significantly below the
mandatory minimum established and mandated in § 924(c).

13
The district court's Rule 35(b) reduction of Luskin's sentence com-
pounded this error. At the sentence reduction hearing, the court admit-
ted that "the Supreme Court has now held that[Luskin's § 924(c)
sentence] should have been five, ten, and ten, I guess." J.A. 314.
Although the court acknowledged that the original§ 924(c) sentence
was below the mandatory minimum, it nevertheless reimposed
Luskin's fifteen-year non-parolable term and significantly reduced his
parolable sentence. In effect, the court made Luskin eligible for
release (and parole) earlier than a similarly situated defendant com-
pelled to serve the mandatory minimum sentence.

Luskin nonetheless maintains that the reduction should be upheld.
He observes that the Government did not appeal the original § 924(c)
sentence, and therefore should not be allowed to challenge it now. In
addition, Luskin contends that, because he has already served the non-
parolable § 924(c) sentence, the district court cannot alter or other-
wise increase that sentence without implicating double jeopardy con-
cerns. Luskin steadfastly asserts that Rule 35(b) does not authorize
courts to increase sentences that have already been imposed.

Luskin's arguments miss the mark. We do not quarrel with his con-
tention that the district court lacked the authority to increase his sen-
tence. Indeed, we have held that Rule 35(b) permits only the
reduction of lawfully imposed sentences. See, e.g., United States v.
Stump, 914 F.2d 170, 173 (9th Cir. 1990). Luskin ignores, however,
that his § 924(c) sentence was ten years below the twenty-five-year
statutory minimum established by the statute, and was therefore
unlawful. See Deal, 508 U.S. at 131-33.

Although Luskin's parolable sentence was lawfully imposed, the
district court was obligated to recognize its earlier error regarding the
non-parolable sentence when it considered Luskin's Rule 35(b)
motion. Cf. Hillary, 106 F.3d at 1172 (recognizing that "`we view
consecutive sentences in the aggregate, not as discrete segments'"
(quoting Garlotte v. Fordice, 515 U.S. 39 (1995))). Because Luskin's
initial sentence, as a unified whole, was contrary to law, the district
court's reduction thereof pursuant to Rule 35(b) constituted an abuse
of discretion. See Koon v. United States, 518 U.S. 81, 100 (1996) ("A
district court by definition abuses its discretion when it makes an
error of law.") (citations omitted).

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III.

Pursuant to the foregoing, we vacate the district court's November
2, 2000 order and judgment reducing Luskin's sentence and remand
the matter for further proceedings consistent herewith.

VACATED AND REMANDED

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