                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4284



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


PERRY J. FLOYD, JR.,

                                              Defendant - Appellant.


Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-04-394)


Argued:   March 14, 2006                      Decided:   May 4, 2006


Before SHEDD and DUNCAN, Circuit Judges, and James P. JONES, Chief
United States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Thomas Norman Cochran, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina,
for Appellant. Robert Michael Hamilton, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.    ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     The sole issue in this appeal is whether the district court

erred in imposing a more onerous sentence on the defendant after

the court had discovered a clear error in its initial sentence and

acted promptly to correct the sentence under Rule 35(a).

     Perry J. Floyd, Jr., pleaded guilty to mail fraud, 18 U.S.C.A.

§ 1341 (West Supp. 2005), and the false representation of a Social

Security number, 42 U.S.C.A. § 408(a)(7)(B) (West Supp. 2005), both

crimes occurring in connection with his fraudulent receipt of

$28,315.66 in government benefits.

     Floyd’s sentencing was held on February 7, 2005.        Before

pronouncing sentence, the district court announced that it intended

to sentence Floyd to a sentence within the advisory Sentencing

Guidelines range, the sentencing taking place following United

States v. Booker, 543 U.S. 220 (2005).       Under the Sentencing

Guidelines,   as   correctly   calculated   in   the   Presentence

Investigation Report, Floyd had a Total Offense Level of 8 and a

Criminal History Category of II, resulting in a custody range of 4

to 10 months imprisonment, with supervised release to follow of two

to three years. Alternatively, because Floyd’s guideline range was

in Zone B of the Sentencing Table, the Sentencing Guidelines

permitted probation with a condition of intermittent or community

confinement or home detention of at least four months.     See U.S.

Sentencing Guidelines Manual §§ 5B1.1(a)(2), 5C1.1(c)(3) (2004).


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     The district court sentenced Floyd to eight months probation

and ordered him to pay restitution and a special assessment of

$200.     This sentence was contrary to the relevant statute, 18

U.S.C.A. § 3561(c)(1) (West 2000), which requires a minimum term of

probation of one year for conviction of a felony.            In addition, no

probation condition of intermittent or community confinement or

home detention was imposed.

     Recognizing its error, the district court reconvened the

parties on its own motion two days later, on February 9, 2005, and

conducted an additional hearing. At the close of this hearing, the

court resentenced Floyd to three years probation. In addition to

the restitution and special assessment previously ordered, the

court added as a condition of probation that Floyd serve eight

months of home detention.

     Floyd appeals, contending that in correcting its error, the

district court should not have imposed more than the minimum term

of probation previously omitted.              Accordingly, Floyd argues, he

must be relieved of the extra two years of probation, as well as

the eight months of home detention.

     The Federal Rules of Criminal Procedure allow a district court

to correct within seven days, “a sentence that resulted from

arithmetical, technical, or other clear error.” Fed. R. Crim. P.

35(a).    The parties agree that the district court had the power

under    that   rule   to   correct   Floyd’s    sentence.    Floyd   argues,


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however, that the district court’s power of correction was limited

to increasing the term of probation from eight months to one year.

We disagree and affirm the corrected sentence.

     “[T]he correction of an illegal sentence does not necessarily

mean that the correction will always result in a reduction of a

sentence for a defendant.”        United States v. Henry, 680 F.2d 403,

408 (5th Cir. 1982).      Indeed, it is established that a court can

increase a defendant’s sentence in order to correct an inadvertent

sentencing error and thus make it lawful without running afoul of

the Constitution. See Bozza v. United States, 330 U.S. 160, 166-67

(1947). More importantly, there are no controlling principles here

that precluded the district court from changing other aspects of

Floyd’s illegal sentence.

     For example, in United States v. Yost, 185 F.3d 1178 (11th

Cir. 1999), the defendant Yost pleaded guilty to mail fraud and to

conspiracy to commit mail fraud, wire fraud, and bankruptcy fraud,

but not to conspiracy to commit money laundering or conspiracy to

commit bank fraud.      Id. at 1179.    At his first sentencing hearing

on March 24, 1999, the district court, pursuant to the Sentencing

Guidelines,   grouped    Yost’s    offenses,   but   erroneously   included

conspiracy to commit money laundering and conspiracy to commit bank

fraud, to which Yost had not pleaded guilty.           Id.   Conspiracy to

commit money laundering yielded the highest offense level, and thus




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the court sentenced Yost to 14 months imprisonment under the

guideline applicable to that offense.          Id. at 1179-80.

      The district court realized its error in applying the money

laundering guideline to Yost when it was sentencing a codefendent

on March 26, and it thus set Yost’s initial sentence aside and held

another sentencing hearing on March 27.              Id. at 1180.          At the

resentencing the court corrected its error and thus applied the

fraud guideline rather than that applicable to money laundering.

Id.   In addition, however, the court reversed its determination

made at the first sentencing hearing and concluded that Yost’s

conduct    did   constitute      conspiracy   to    commit    bank    fraud    and

therefore could be considered as relevant conduct. Id.                        This

resulted in an increase in Yost’s offense level and a sentence of

18 months imprisonment.        Id.

      Yost   appealed    his     sentence,    and    the     Eleventh      Circuit

considered whether the district court’s actions were proper under

Rule 35(c), the predecessor to the current Rule 35(a).                         The

Eleventh Circuit noted that the district court resentenced the

defendant because it made the obvious error of using the wrong

guideline; this was not a case where the district court simply

changed its mind.      Id. at 1181.

      In   upholding    Yost’s    new   sentence,    including       the   portion

resulting from the district court’s revisiting of its prior ruling




                                     - 5 -
regarding consideration of bank fraud as relevant conduct, the

Eleventh Circuit explained that:

       when we vacate a sentence and remand for resentencing,
       the sentence becomes void in its entirety and the
       district court is free to revisit any rulings it made at
       the initial sentencing. We see no reason why the same
       should not be true when the district court resentences
       under Rule 35 (c).


Id. (citations omitted). Thus, in Yost, the Eleventh Circuit

concluded that “it takes only one clear error to give the district

court    authority       under   [Rule    35(a)]     to   conduct    an    entire

resentencing at which the court may correct any other errors, clear

or not.”       Yost at 1181;     see also United States v. Bentley, 850

F.2d    327,    328-29    (7th   Cir.    1988)   (“[N]othing   but    pointless

formalism would support a distinction between a sentencing plan

disrupted by the vacatur of some counts on appeal and a plan

shattered by the district court’s own recognition that the plan was

infested with error. . . . [W]henever the district court must

revise one aspect of the sentencing scheme, it is permitted by Rule

35 to revise the rest.”).

       Following this authority, it is apparent that after the

district court here discovered its clear error and decided to

resentence under Rule 35(a), it was free to impose a different,

albeit   lawful    and    reasonable      sentence   on   Floyd,    even   if   it

increased the punishment.         While it is true that the Due Process

Clause prohibits a vindictive increase in a sentence, this is not


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a concern in the present case, where there is no claim or evidence

of vindictiveness and where the district court corrected its own

clear error sua sponte.   See Colton v. Kentucky, 407 U.S. 104, 116-

17 (1972) (holding that likelihood of vindictiveness does not exist

where the court imposing the increased sentence has not been

required to do so by another court).

     For these reasons, the sentence imposed on the defendant is

hereby

                                                          AFFIRMED.




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