                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 02 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50528

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00169-GW-1

  v.
                                                 MEMORANDUM *
JERRON JOHNS, AKA Japs, AKA Jerron
David Johns,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                       Argued and Submitted March 8, 2011
                              Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.




       Jerron Johns appeals the twenty-year mandatory minimum sentence imposed

under 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) following his guilty plea to

distribution of crack cocaine with a prior felony drug conviction.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      While this appeal was pending, President Obama signed into law the Fair

Sentencing Act, which increased the quantity of crack cocaine required to trigger

mandatory sentences under § 841(b)(1). See Pub. L. No. 111-220, 124 Stat. 2372.

Johns asks that we vacate his sentence with instructions for resentencing pursuant

to the Act. We reject his arguments for the reasons set forth in the opinion that we

issue today in United States v. Baptist, 09-50315.

      Johns also contends that the district court’s written judgment imposing a

$100 assessment should be amended to comply with oral sentencing, which did not

include the $100 assessment. The court’s failure to impose the assessment at his

oral pronouncement was clear error, however, because it is statutorily mandated for

convictions under 21 U.S.C. § 841. “[W]hen the oral sentence is illegal, the

correction procedure of [Federal] Rule [of Criminal Procedure] 35(c) applies and

the correction supersedes the erroneous oral sentence.” United States v. Colace,

126 F.3d 1229, 1231 (9th Cir. 1997) (citing United States v. Edmonson, 792 F.2d

1492, 1496 n.4 (9th. Cir. 1986) (“There can be no expectation of finality as to

sentences that are illegal and are thus always subject to modification under Rule

35(a).”)). Imposition of the $100 assessment was therefore proper.




             AFFIRMED.


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