* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. STEVEN MARK SKUFCA,

Defendant-Appellant. No. 96-1225 (Dist. of Colorado) (D.C. No. 92-CR-70-S)

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 wouldnot 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 sub mitted without oral argument. Steven Mark Skufca appeals his 24-month sentence fo r violation of supervised release entered by the United States Dis trict Court for the District of1 The district court stated: It is the Court’s determination that Mr. Skufca sho uld be remanded to the custody of the United States Marsha l’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 an d 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 Probati on. 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 o f 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 h ave a further hearing, unless there’s some objection. 2 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 d ays plus a three year term of supervised release. Based on Skufca’s subsequent u se 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 districtcourt orally revoked Skufca’s supervised release term and imposed a sentence of 1 2-months incarceration. At the same time, the district court stayed execution of the sentence, placed Skufca back under supervised release, and scheduled a subs equent sentencing hearing on May 4, 1995. 1 At the May 4, 1995 hearing, the district court he ard additional3

evidence from the probation officer, vacated Skufca ’s 12-month sentence, and reinstated Skufca’s supervised release. A year lat er, the probation office again petitioned the district court to revoke Skufca’s supervised release based on another narcotics violation. On May 3, 1996, the d istrict court revoked Skufca’s term of supervised release and sentenced him to 24- months incarceration. Skufca appeals the 24-month sentence based on two g rounds. First, Skufca claims that under Fed. R. Crim. P. 35(c), the trial court lacked jurisdiction to revoke his original 12-month prison sentence. Seco nd, he claims that the subsequent 24-month prison sentence was plainly unr easonable and excessive. Skufca requests this court to remand his case to th e trial court for imposition of the original sentence of 12 months. We grant his r equested relief. The question whether the district court was justifi ed 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 Defend ant’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 distric t court possessed jurisdiction to modify Skufca’s sentence de novo

. Id. Fed. R. Crim. P. 35(c) states: “The court, acting w ithin 7 days after the imposition of sentence, may correct a sentence thatwas imposed as a result of arithmetical, technical, or other clear error.” Ru le 35(c) did not afford the district4

court jurisdiction in this case because the court d id not resentence Skufca within seven days. Rather, the court orally resentenced S kufca eight days after the original sentencing hearing. The fact that the sen tence 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 senten ce from the bench”). Moreover, the revocation of Skufca’s original sente nce 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 acco mpanying the 1991 Amendment to Rule 35(c): [Section 35(c)] is not intended to afford the courtthe opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mi nd about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearin g through the exercise of the court’s discretion with regard to t he 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 distr ict court’s reconsideration was outside the scope of Rule 35(c) and the court l acked jurisdiction to reconsider Skufca’s original sentence entered April 26, 1995. See United States v. AbreuCabrera , 64 F.3d 67, 72 (2d Cir. 1995) (holding that since defendant’s5

“resentencing represented nothing more than a distr ict court’s change of heart as to the appropriateness of the sentence, it was acco rdingly not a correction authorized by Rule 35(c)”). The government argues that this court cannot set as ide the ruling because Skufca invited the district court’s error by sugges ting 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 ter m of supervised release. Moreover, the district court initially adopted Skuf ca’s request; the court created a new term of supervised release and only a year late r did the court increase the sentence to 24 months in prison. Thus, Skufca in n o 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.6

For the reasons set forth above, we REVERSE the sentence imposed by the United States District Court for the District of Co lorado and REMAND with instructions to reinstate Skufca’s original sentenc e entered April 26, 1995. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge