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UNITED STATES v. POLANCO

November 23, 1993

UNITED STATES, Plaintiff,
v.
JOSE POLANCO, Defendant.



The opinion of the court was delivered by: WHITMAN KNAPP

 WHITMAN KNAPP, SENIOR D.J.

 By a letter dated November 18, 1993, which has been made part of the record, the government moves pursuant to Fed.R.Cr.P. 35 that I correct the sentence heretofore imposed on the defendant as unjustified by law. That motion is denied except to reduce the term of imprisonment to be imposed in the event of defendant's unlawful return to the United States from fifteen years to one year.

 Title 18 ยง 3561 (1985 & Supp. 1993), so far as here relevant, provides:

 
(a) In general. -A defendant who has been found guilty of an offense may be sentenced to a term of probation unless-
 
(1) the offense is a Class A or Class B felony and the defendant is an individual; [or]
 
(2) the offense is an offense for which probation has been expressly precluded . . .
 
(b) Authorized terms.-The authorized terms of probation are--
 
(1) for a felony, not less than one nor more than five years . . .

 Section 3563(b), so far as here relevant, provides:

 
(b) Discretionary Conditions [of Probation]-The court may provide, as further conditions of a sentence of probation, to the extent that such conditions are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 3553(a)(2), that the defendant- . . .
 
(11) remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation . . .

 18 U.S.C. ยง 3563(b) (emphasis added) (1985 & Supp. 1993).

 The sentence I have imposed -- as amended -- is, in effect, a sentence of probation with the specific condition that if "during the first year of the term of probation" *fn1" the defendant returns to the United States without appropriate permission he shall "remain in the custody of the Bureau of prisons" for an interval of time ...


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