                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS          October 4, 2004

                         FOR THE FIFTH CIRCUIT           Charles R. Fulbruge III
                                                                 Clerk
                         _____________________

                             No. 03-11204
                         _____________________



     UNITED STATES OF AMERICA

                                      Plaintiff - Appellee

          v.

     MARSHALL DEWAYNE WILLIAMS

                                      Defendant - Appellant

_________________________________________________________________

          Appeal from the United States District Court
               for the Northern District of Texas
                       No. 3:84-CR-0148-G

_________________________________________________________________

Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:*

     Appellant was convicted of violating 18 U.S.C. § 844(i), the

federal arson statute.    He subsequently brought a motion under

former Federal Rule of Criminal Procedure 35(a), arguing both

that his sentence is not authorized by the relevant sentencing

statute and that the original trial court lacked subject matter

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
jurisdiction.   Both claims were denied by the district court.     He

appeals the district court’s order.    We affirm as to both issues.

                I.   FACTUAL AND PROCEDURAL BACKGROUND

     On October 18, 1984, Williams was convicted in federal

district court on three counts relating to his planting a pipe-

bomb in a newspaper vending machine.    The pipe-bomb exploded,

killing Williams’s stepfather.    Count One, the subject of this

appeal, was based on Williams’s violation of 18 U.S.C. § 844(i).1

It charged him with maliciously destroying a coin-operated

newspaper dispenser by means of an explosion that resulted in the

death of another.    Counts Two and Three charged Williams with




     1
        At the time of the offense, the relevant portion of
18 U.S.C. § 844(i) stated:
     Whoever maliciously damages or destroys, or attempts to
     damage or destroy, by means of fire or an explosive, any
     building, vehicle, or other real or personal property
     used in interstate or foreign commerce or in any
     activity affecting interstate or foreign commerce shall
     be imprisoned for not more than ten years or fined not
     more than $10,000, or both; . . . and if death results .
     . . shall also be subject to imprisonment for any term
     of years, or to the death penalty or to life
     imprisonment as provided in section 34 of this title.
18 U.S.C. § 844(i) (1988) (repealed 1994).

The relevant portion of 18 U.S.C. § 34 stated:
     Whoever is convicted of any crime prohibited by this
     chapter, which has resulted in the death of any person,
     shall be subject also to the death penalty or to
     imprisonment for life, if the jury shall in its discretion
     so direct . . . .
18 U.S.C. § 34 (1988) (repealed 1994).



                                   2
illegally possessing a firearm and illegally constructing a

firearm, respectively.

     On December 12, 1984, Williams was sentenced to life

imprisonment on Count One. He was sentenced to ten years’

imprisonment on both Counts Two and Three.    The sentences on

Counts Two and Three were ordered to be served concurrently with

each other but consecutively to the sentence for Count One.

     On direct appeal, Williams challenged several issues arising

from the trial.    The most notable of these was his contention

that the statutory scheme allowed for the imposition of a life

sentence only at the jury’s discretion.    At the time of

Williams’s conviction, § 844(i) provided that where death results

from the malicious destruction of property used in interstate

commerce, the defendant is “subject to imprisonment for any term

of years, or to the death penalty or to life imprisonment as

provided in section 34 of this title.”    18 U.S.C. § 844(i) (1988)

(repealed 1994).    Section 34, in turn, dictated that the

defendant “shall be subject also to the death penalty or to

imprisonment for life, if the jury shall in its discretion so

direct.”    18 U.S.C. § 34 (1988) (repealed 1994). Since the issue

of punishment was never presented to the jury, Williams claimed

that the court did not have the power to sentence him to a life

sentence.

     This court agreed with Williams’s contention that the court

could not sentence him to life imprisonment, finding that

                                  3
“[a]bsent the recommendation of the jury, this sentence was

improper and must be vacated and the cause remanded to the

district court for resentencing.”         United States v. Williams, 775

F.2d 1295, 1299 (5th Cir. 1985).         All other aspects of the

original sentence were affirmed.         Id. at 1303.   On remand, the

district court sentenced Williams to ninety-nine years on Count

One.       At that time, he did not appeal the sentencing decision

made on remand.

       On April 21, 2003, Williams filed a motion under Rule 35(a)

of the Federal Rules of Criminal Procedure.         He brought the

motion under a former version of Rule 35(a) that still applies to

offenses committed before Rule 35(a) was amended in November of

1987. United States v. Pineda, 988 F.2d 22, 23 n.2 (5th Cir.

1993).       The pre-1987 rule states that a “court may correct an

illegal sentence at any time and may correct a sentence imposed

in an illegal manner within the time provided herein for the

reduction of sentence.”2      Id. (citing the prior version of Rule

35(a)).

       Williams challenged the legality of his sentence on two

grounds.       First, he argued that in light of the Supreme Court’s

recent Commerce Clause decisions, particularly Jones v. United

States, 529 U.S. 848 (2000), § 844(i) could not constitutionally



       2
        All subsequent references to Rule 35(a) are to this
prior version.

                                     4
be applied to his conduct, a problem that (as he argues) left the

district court without subject matter jurisdiction.      Williams’s

second ground of attack was that the ninety-nine year sentence

imposed on remand from this court is functionally equivalent to

life imprisonment and thus runs afoul of the requirement in 18

U.S.C. § 34 that such a punishment can only be given by a jury.

The district court considered these arguments and denied relief

on both claims.

     Williams now appeals the district court’s disposition of his

Rule 35(a) motion.   Pursuant to 28 U.S.C. § 1291, this court has

jurisdiction to hear the appeal.

                           II.   ANALYSIS

A.   The Jurisdictional Claim.

     Rule 35(a) serves a limited purpose.      Its narrow function is

to “permit correction at any time of an illegal sentence, not to

re-examine errors occurring at the trial or other proceedings

prior to the imposition of sentence.”       Hill v. United States, 368

U.S. 424, 430 (1962) (emphasis in original); see also United

States v. Prestenbach, 230 F.3d 780, 782 (5th Cir. 2000) (“a

defendant cannot challenge his conviction; he can only challenge

his sentence”).   The disposition below of Williams’s

jurisdictional claim must be affirmed because it is not

appropriately brought under Rule 35(a).      Phrasing his argument as

a claim that the district court lacked jurisdiction does not

                                   5
convert what is essentially a challenge to his conviction into a

claim that his sentence is illegal.    Williams levels an attack on

the underlying conviction and this is an inappropriate claim to

bring under Rule 35(a).     Cf. United States v. Lika, 344 F.3d 150,

153 (2d Cir. 2003) (“We need not reach the question of whether a

6(f) violation deprives the court of jurisdiction, because Lika's

jurisdictional argument, no less than his other contentions,

represents an attack on the underlying conviction and is

inappropriately raised in a Rule 35(a) motion.”)    For these

reasons, we affirm the district court’s order holding that

Williams’s “jurisdictional” claim is not the proper subject of a

Rule 35(a) motion.

B.   The Term of Incarceration.

     While the first issue Williams raised on appeal is not

properly brought under Rule 35(a), this rule is the correct

vehicle for Williams’s claim regarding the duration of his

sentence and the allegedly fatal flaw in the manner in which it

was imposed: he directly argues that the sentence imposed upon

him by the judge, ninety-nine years, is the equivalent of a life

sentence and that the judge was not authorized by the applicable

sentencing statute to impose a life sentence except upon the

recommendation of a jury.    As there are no other procedural bars

to our consideration of Williams’s second claim, we proceed to

consider the merits of his argument.



                                  6
     Following the plain meaning of the statute, it is clear that

Williams’s sentence does not violate the jury directive.      Section

844(i) delegates a great deal of discretion to the trial judge in

sentencing a defendant.   The statute clearly states that a

defendant may be sentenced by a judge to any number of years.     A

ninety-nine year sentence unquestionably falls within this broad

proclamation.   Thus, the sentence is unobjectionable.   In

addition to the plain language of the statute, it is important to

consider that adding qualifications to the capacious meaning of

the word “any” renders the word superfluous.   In interpreting

statutes, it is desirable to give every word independent meaning.

     Most courts that have considered the issue before us have

chosen to look beyond the plain meaning of § 844(i), but they

have done so in a different context, specifically in the context

of sentences imposed under the United States Sentencing

Guidelines.   They have found that a sentence for a term of years

beyond the defendant’s life expectancy violates the statutory

scheme.   United States v. Grimes, 142 F.3d 1342, 1352 n.12 (11th

Cir. 1998) (“[i]t is true, as Grimes contends, that circuit

courts considering the application of the pre-1994 versions of §

884(i) [sic] and § 34 have consistently concluded that only a

jury had authority to impose a life sentence and that the judge

could only impose a sentence for a term of years less than

life.”); United States v. Tocco, 135 F.3d 116, 131-32 (2d Cir.

1998) (affirming a lower court decision on the issue); United

                                 7
States v. Gullett, 75 F.3d 941, 950-51 (4th Cir. 1996); United

States v. Prevatte, 66 F.3d 840, 843-44 (7th Cir. 1995); United

States v. Martin, 63 F.3d 1422, 1433-34 (7th Cir. 1995).

       The courts that have looked beyond the plain meaning of the

statutory scheme have taken the view that in adding the jury

directive, Congress evinced a clear desire to add restrictions

and conditions on a court’s ability to sentence a defendant to

life.      Allowing a trial judge to sentence a defendant to a number

of years that is the functional equivalent of a life sentence

would do violence to Congress’s intent and would render the jury

directive a nullity.      See, e.g., Gullett, 75 F.3d at 950-51;

United States v. Ferranti, 928 F. Supp. 206, 216 (E.D.N.Y. 1996),

aff’d sub nom United States v. Tocco, 135 F.3d 116 (2d Cir. 1998)

(“[a] sentence lasting beyond defendant's expected lifetime would

circumvent the jury directive requirement of 18 U.S.C. § 34 . . .

.").

       What distinguishes Williams’s case from this line of cases

is Williams’s eligibility for parole.3     The federal parole system

was repealed effective November 1, 1987.      18 U.S.C. § 4201

(2000).      However, a prisoner who committed his offense before

that date is still eligible for parole under the old system.        In


       3
        Since Williams is eligible for parole, we need not, and
explicitly do not, express any opinion on how the prior versions
of 18 U.S.C. §§ 844(i) and 34 should be interpreted for those
defendants who are ineligible for parole.


                                    8
his concurrence in Prevatte, then-Chief Judge Posner suggested

that an important reason for ensuring that the defendant received

a sentence for a term of years less than life was the repeal of

the federal parole system in 1987.   He reasoned that since in a

parole system, “a term of years means what the parole board wants

it to mean. . . . A sentence to a term of years, no matter how

long, was not a sentence of life imprisonment. . . .”   Prevatte,

66 F.3d at 846 (7th Cir. 1995)(Posner, C.J., concurring).

     Under the parole system, there is little chance that

Williams will serve his entire ninety-nine year sentence.

Indeed, Williams is already eligible for parole.   See 18 U.S.C. §

4205(a) (2000).   Additionally, the parole provisions provide that

prisoners are presumptively4 paroled “after having served two-

thirds of each consecutive term or terms, or after serving thirty

years of each consecutive term or terms of more than forty-five

years . . . .” 18 U.S.C. § 4206(d) (2000).   Following this

statute and assuming compliance with its conditions, Williams

will serve, at most, thirty of the ninety-nine years to which he

was sentenced for his violation of § 844(i).5   If we accept

     4
         Under 18 U.S.C. § 4206(d), this presumption applies
unless the Parole Commission finds that the prisoner: (1) has
committed serious or frequent violations of institutional rules,
or (2) is likely to commit a Federal, State, or local crime if
paroled.
     5
        Williams still must serve his ten-year concurrent
sentences from Counts Two and Three. However, any time he may
have to serve for these sentences is irrelevant to the analysis
of his sentence for violating § 844(i).

                                 9
arguendo Williams’s invitation to factor into our analysis his

life expectancy at the time of his sentencing, Williams was

twenty-two years old when he was sentenced.    His life expectancy

was (as he recognizes) approximately sixty-seven years.6   This

means that the portion of his incarceration attributable to his

violation of § 844(i) will conclude when he is, at the oldest,

fifty-two years old.   This leaves him with approximately fifteen

more years of expected life outside of jail.   Because Williams’s

eligibility for parole means he will fulfill his sentence within

the term of his life expectancy, it is impossible to conclude

(accepting arguendo his argument) that his ninety-nine-year

sentence is the functional equivalent of him spending the rest of

his life in prison.

                            CONCLUSION

     For the foregoing reasons, the order of the district court

denying Williams’s Rule 35 motion is AFFIRMED.




     6
        Nat’l Ctr. for Health Statistics, U.S. Dep’t of Health &
Human Servs., Health, United States, 2003, 133 tbl. 27 (2003)
(indicating that a Caucasian male born in 1960 has a life
expectancy of 67.4 years at birth).

                                10
