The opinion of the court was delivered by: Glasser, District Judge:
The above-captioned case is before the Court upon defendant's
motion under Fed. R.Crim.P. 35, as that rule provided prior to
the amendments effective November 1, 1987, to vacate his
sentence on the ground that it was illegally imposed or to
reduce sentence because of a change of circumstances. As the
Rule provided, a court "may correct an illegal sentence at any
time" or may reduce a sentence within 120 days after the
sentence is imposed or probation is revoked.
Carlos Urdaneta pled guilty to possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1) on May
3, 1984. On July 26, 1984 he was sentenced to five years'
imprisonment, with one week to be served in a jail-type
institution and the balance of the term suspended and to be
served on probation. A condition of his probation was that he
not return illegally to the United States.
On May 5, 1987, a probation violator's warrant was issued
after defendant was apprehended in Vermont for having entered
the United States illegally. He was transferred to this
district on December 7, 1987 and pled guilty to the violation.
On May 6, 1988, the court revoked his probation, sentenced him
to five years' imprisonment, and again suspended sentence with
the condition that he not return illegally to the United
States. On May 31, 1989 defendant was arrested in Texas for
illegal entry into the United States and a narcotics violation.
On January 29, 1990 a second probation violator's warrant was
issued and he was transferred to this district. He pled guilty
to that violation and on September 19, 1990 the court sentenced
him to a five-year term of imprisonment.
The basis for defendant's motion to vacate the five-year
sentence is that his second term of probation was illegally
imposed and, thus, when the second violator's warrant was
issued on January 29, 1990, the court lacked jurisdiction to
impose sentence. Alternatively, he argues that his sentence
should be reduced on the grounds of new information concerning
his behavior and reformation while in prison. For the reasons
that follow, the motion is denied.
The practice of suspending execution or imposition of
sentence and placing a defendant on probation was widespread in
the federal courts until 1916, when the Supreme Court in Ex
parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129
(1916) ruled that the federal courts lack the inherent power to
impose probation in lieu of imprisonment and that, and absent
statutory authorization, the practice was illegal. Congress
responded nine years later with the Probation Act of 1925, now
codified at 18 U.S.C. § 3651-3656, which until the federal
sentencing reforms of the 1980's remained the "sole source of
the probationary powers exercised by the federal courts. . . ."
United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir.), cert.
denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). See
also Affronti v. United States, 350 U.S. 79, 80, 76 S.Ct. 171,
172, 100 L.Ed. 62 (1955); United States v. Murray,
275 U.S. 347, 357, 48 S.Ct. 146, 149, 72 L.Ed. 309 (1928); United States
v. Elkin, 731 F.2d 1005, 1010 (2d Cir.), cert. denied,
469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984); Fiore v. United
States, 696 F.2d 205, 207 (2d Cir. 1982); United States v.
Workman, 617 F.2d 48, 50 (4th Cir. 1980).
Section 3651, Title 18, United States Code, as amended,
provides for the suspension of the imposition or execution of
a sentence for an offense not punishable by death or life
imprisonment and the placing of the defendant on probation when
the "ends of justice and the best interests of the public as
well as the defendant" will be served. That section also
provides for the imposition of so-called "split" sentences,
which include a term of imprisonment followed by a period of
probation. The statute specifically provides for the extension
of probation and for a maximum period of probation:
The court may revoke or modify any condition of
probation, or may change the period of probation.
The period of probation, together with any
extension thereof, shall not exceed five years.
Revocation of probation is provided for by 18 U.S.C. § 3653,
At any time within the probation period, the
probation officer may for cause arrest the
probationer wherever found, without a warrant.
As speedily as possible after arrest the
probationer shall be taken before the court for
the district having jurisdiction over him.
Thereupon the court may revoke the probation and
require him to serve the sentence imposed, or any
lesser sentence, and, if the imposition of
sentence was suspended, may impose any sentence
which might originally have been imposed.
While it is well-settled that a court may extend a
probationary term up to the five-year limit imposed by
18 U.S.C. § 3651, see, e.g., Skipworth v. United States,
508 F.2d 598 (3d Cir. 1975); United States v. Squillante, 144 F. Supp. 494
(S.D.N.Y. 1956), there is a split among the circuits on the
question whether a period of probation may ever be imposed
following revocation of
probation under 18 U.S.C. § 3653.*fn1 The Second Circuit has
not spoken on this question.
The Tenth Circuit and one district court in the Fourth
Circuit have read § 3653 to preclude the imposition of a term
of probation following revocation of probation, basing their
view on the language of § 3653 which permits the court upon
revocation of probation to "require [probationer] to serve the
sentence imposed, or any lesser sentence." Fox v. United
States, 354 F.2d 752 (10th Cir. 1965); United States ...