In a drug prosecution, denial of defendant's motion to correct his sentence pursuant to a prior version of Federal Rule of Criminal Procedure 35(a) is affirmed where: 1) there is no material difference between the "discretionary" life term authorized by 21 U.S.C. section 848(a) and the "mandatory" life term authorized by section 848(b); 2) defendant could not challenge the process by which his sentence was imposed under Rule 35(a); and 3) Rule 35(a) did not permit defendant to raise the argument that the district court erred in finding facts relevant to the sentence without submitting those facts to the jury.
Argued and Submitted March 10, 2009
Filed September 16, 2009
Opinion by Judge Wallace
Richard B. Mazer, Law Offices of Richard B. Mazer, San Francisco, CA
Phillip A. Talbert, Assistant United States Attorney, Chief of Appeals, Sacramento, CA