                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          MAR 24 1997
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                        No. 96-1225
v.                                                   (Dist. of Colorado)
                                                   (D.C. No. 92-CR-70-S)
STEVEN MARK SKUFCA,

             Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has unanimously determined that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

      Steven Mark Skufca appeals his 24-month sentence for violation of

supervised release entered by the United States District Court for the District of


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Colorado. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a) and REVERSES.

      Skufca was sentenced to three years probation based on his August 18,

1992 conviction for use of controlled substances. Skufca violated his probation

and on May 3, 1994 was sentenced to prison for 91 days plus a three year term of

supervised release. Based on Skufca’s subsequent use of narcotics, the probation

office petitioned the district court to revoke his supervised release and to impose

a prison sentence. On April 26, 1995, the district court orally revoked Skufca’s

supervised release term and imposed a sentence of 12-months incarceration. At

the same time, the district court stayed execution of the sentence, placed Skufca

back under supervised release, and scheduled a subsequent sentencing hearing on

May 4, 1995. 1 At the May 4, 1995 hearing, the district court heard additional


      1
       The district court stated:
              It is the Court’s determination that Mr. Skufca should be
      remanded to the custody of the United States Marshal’s service to be
      conveyed with all due and convenient speed into the custody of the
      United States Bureau of Prisons there to be kept and confined for a
      period of 12 months, the maximum sentence available under the law.
              However, in one last attempt at further examination of my
      exercise of discretion in this matter, I’m going to stay execution of
      that sentence and would like to confer with Probation.
      Unfortunately, I’m almost 30 minutes past the next hearing that was
      scheduled today, and I don’t want to do anything in this matter which
      would be inappropriate. So I will stay execution of that sentence at
      this time, place him back in Community Corrections--that’s where he
      is at this time--and continue this matter. We’ll have a further
      hearing, unless there’s some objection.

                                          2
evidence from the probation officer, vacated Skufca’s 12-month sentence, and

reinstated Skufca’s supervised release. A year later, the probation office again

petitioned the district court to revoke Skufca’s supervised release based on

another narcotics violation. On May 3, 1996, the district court revoked Skufca’s

term of supervised release and sentenced him to 24-months incarceration.

      Skufca appeals the 24-month sentence based on two grounds. First, Skufca

claims that under Fed. R. Crim. P. 35(c), the trial court lacked jurisdiction to

revoke his original 12-month prison sentence. Second, he claims that the

subsequent 24-month prison sentence was plainly unreasonable and excessive.

Skufca requests this court to remand his case to the trial court for imposition of

the original sentence of 12 months. We grant his requested relief.

      The question whether the district court was justified in resentencing Skufca

is jurisdictional. United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996)

(“A district court is authorized to modify a Defendant’s sentence only in specified

instances where Congress has expressly granted the court jurisdiction to do so.”)

We review the legal question of whether the district court possessed jurisdiction

to modify Skufca’s sentence de novo. Id.

      Fed. R. Crim. P. 35(c) states: “The court, acting within 7 days after the

imposition of sentence, may correct a sentence that was imposed as a result of

arithmetical, technical, or other clear error.” Rule 35(c) did not afford the district


                                           3
court jurisdiction in this case because the court did not resentence Skufca within

seven days. Rather, the court orally resentenced Skufca eight days after the

original sentencing hearing. The fact that the sentence was oral is of no

consequence. United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994)

(holding “that sentence is imposed upon a criminal defendant, for purposes of

Rule 35(c), when the court orally pronounces sentence from the bench”).

Moreover, the revocation of Skufca’s original sentence was not based on any

arithmetical, technical, or other clear error, but rather on additional evidence at

the subsequent sentencing hearing and based on the court’s change of heart.

According to the Congressional Committee Notes accompanying the 1991

Amendment to Rule 35(c):

      [Section 35(c)] is not intended to afford the court the opportunity to
      reconsider the application or interpretation of the sentencing
      guidelines or for the court simply to change its mind about the
      appropriateness of the sentence. Nor should it be used to reopen
      issues previously resolved at the sentencing hearing through the
      exercise of the court’s discretion with regard to the application of the
      sentencing guidelines.

Fed. R. Crim. P. 35, Notes of Advisory Committee on Rules--1991 Amendment,

18 U.S.C.App. 856 (Supp. IV 1992). Thus, the district court’s reconsideration

was outside the scope of Rule 35(c) and the court lacked jurisdiction to reconsider

Skufca’s original sentence entered April 26, 1995. See United States v. Abreu-

Cabrera, 64 F.3d 67, 72 (2d Cir. 1995) (holding that since defendant’s


                                           4
“resentencing represented nothing more than a district court’s change of heart as

to the appropriateness of the sentence, it was accordingly not a correction

authorized by Rule 35(c)”).

      The government argues that this court cannot set aside the ruling because

Skufca invited the district court’s error by suggesting other alternatives to

imprisonment at the May 4, 1995 hearing. See United States v. Burson, 952 F.2d

1196, 1203 (10th Cir. 1991). We note, however, that the district court erred by

substituting a 24-month sentence for a 12-month sentence. Skufca did not invite

this error; he invited only a new or continuing term of supervised release.

Moreover, the district court initially adopted Skufca’s request; the court created a

new term of supervised release and only a year later did the court increase the

sentence to 24 months in prison. Thus, Skufca in no way invited the error of the

substitution of a higher prison sentence.

      We need not address Skufca’s second claim that the 24-month sentence was

unreasonable and excessive in light of our finding that the district court had no

jurisdiction to vacate Skufca’s earlier sentence.




                                            5
      For the reasons set forth above, we REVERSE the sentence imposed by the

United States District Court for the District of Colorado and REMAND with

instructions to reinstate Skufca’s original sentence entered April 26, 1995.

                                      ENTERED FOR THE COURT,



                                      Michael R. Murphy
                                      Circuit Judge




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