FILED
NOT FOR PUBLICATION JUN 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50528
Plaintiff - Appellee, D.C. No. 2:08-cr-00169-GW-1
v.
MEMORANDUM *
JERRON JOHNS, AKA Japs, AKA Jerron
David Johns,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted March 8, 2011
Pasadena, California
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Jerron Johns appeals the twenty-year mandatory minimum sentence imposed
under 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) following his guilty plea to
distribution of crack cocaine with a prior felony drug conviction.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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, 09-50315.
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. “[W]hen 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.
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