Opinion
D.C. Nos. CV-95-06128-REC, CR-85-00255-REC
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Feb. 11, 2000.
Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, Chief Judge, Presiding.
Before HUG, Chief Judge, D.W. NELSON and MCKEOWN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Thomas Dean Webb appeals the district court's denial of his § 2255 motion, following a limited remand about the statutory basis of his sentence. Webb argues that the district court erred in (1) imposing a special 10-year parole term; (2) imposing consecutive sentences for pleading guilty to related drug offenses; and (3) revoking his probation. We affirm.
Webb's attorney conceded at oral argument that Webb's 10-year special parole was not an illegal sentence. On December 20, 1996, we remanded this case to the district court in order to clarify the statutory basis for Webb's sentence: "The legality of Webb's special parole term turns upon which penalty provision he was sentenced under, 21 U.S.C. § 841(b)(1)(A) or (B) [ (Supp. II 1984) ]." United States v. Webb, No. 96-15229, 1996 WL 740857, at *1 (9 th Cir.1996). See United States v. Torres, 880 F.2d 113, 114-15 (9 th Cir.1989) (per curiam); United States v. Brickell, 872 F.2d 307, 308-10 (9 th Cir.1989) (per curiam). According to Torres and Brickell, Webb's special parole term would be invalid under § 841(b)(1)(A) but valid under § 841(b)(1)(B). The district court concluded that Webb appeared to have been sentenced under subparagraph (B).
On appeal, Webb's attorney agreed with the government that Webb could not have been sentenced under subparagraph (A) because methamphetamine is not a narcotic drug. Accordingly, Webb's special parole term was a legal sentence under subparagraph (B).
Webb's other two arguments are without merit. First, the district court did not err in imposing consecutive sentences for conspiracy to manufacture and possession with intent to distribute methamphetamine. Webb was informed by the government that his sentences would be consecutive; he waived this argument by not raising it with the district court, see Sanchez v. United States, 50 F.3d 1448, 1456 (9 th Cir.1995); and consecutive sentences in conspiracy cases are permissible. See United States v. McQuisten, 795 F.2d 858, 868 (9 th Cir.1986).
Second, the district court did not err in revoking Webb's probation because his five-year probationary term had not expired. Webb began serving his sentence on July 21, 1986, and he violated his probation on October 20, 1990. His five-year probationary term did not expire until July of 1991 and was permissible under subparagraph (B).
AFFIRMED.