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July 16, 1991


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.

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, which states:

    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 ...

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