FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 05, 2002

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________________

No. 01-12343

___________________

D.C. Docket No. 91-00349-CR-SH

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

HECTOR RAMON DIAZ-CLARK,

Defendant-Appellee.

______________

Appeal from the United States District Court

for the Southern District of Florida

_____________

(June 5, 2002)

Before ANDERSON and MARCUS, Circuit Judges, and MIDDLEBROOKS*,

District Judge.

___________________

*Honorable Donald M. Middlebrooks, U.S. District Judge for the Southern District of

Florida, sitting by designation.
2

MIDDLEBROOKS, District Judge:

In this appeal, we are presented with the specific question of whether a district

court has jurisdiction, after the expiration of the time provided by Rule 35 of the

Federal Rules of Criminal Procedure and without any federal habeas corpus petition

before it, to reduce a prisoner’s sentence based upon its conclusion that the sentence

it had originally imposed was erroneous due to a grouping error under the Sentencing

Guidelines. Because we conclude that the district court did not have such jurisdiction

to modify the original sentence, we reverse, vacate the amended sentence and remand

with instructions to reinstate the original sentence.

I. BACKGROUND

The somewhat complicated and lengthy history of this case is as follows. In

May of 1991, a federal grand jury sitting in the Southern District of Florida indicted

appellee, Hector Ramon Diaz-Clark (“Diaz-Clark”) on three counts relating to a

conspiracy to import cocaine into the United States. This is referred to as the “Miami

Case.” In June of 1994, Diaz-Clark entered into a written plea agreement with the

government and pled guilty to Count I of the Miami Case indictment.

In early 1994, another federal grand jury, this one sitting in the Middle District

of Florida, indicted Diaz-Clark for conspiracy to import marijuana into the United
3

States. This is referred to as the “Rule 20 Case” because the case was transferred on

February 10, 1995 to the Southern District of Florida pursuant to Rule 20 of the

Federal Rules of Criminal Procedure. This case was originally assigned to Judge

Lenore Nesbitt, but was soon transferred to Judge Shelby Highsmith, who was

handling the Miami Case. Additionally, the government’s unopposed motion to

transfer was also a motion to consolidate the two cases; although Judge Nesbitt

granted the motion to transfer, which Judge Highsmith accepted, the motion to

consolidate was never ruled upon.

In January of 1995, the district court held the first of two sentencing hearings

in the Miami Case. At the beginning of this hearing, the status of the Rule 20 case

was discussed; when the district judge learned that the transfer paperwork in the Rule

20 case had not been completed, he decided to proceed nonetheless with sentencing

in the Miami Case. However, the sentencing was continued in order to conduct an

evidentiary hearing on a contested issue surrounding Diaz-Clark’s involvement in the

cocaine conspiracy. Shortly thereafter, the transfer of the Rule 20 Case was

completed.

Therefore, as of February 27, 1995, both cases were before a single district

judge, from whom this appeal has arisen. On March 3, 1995, the district court called

both the Miami Case and the Rule 20 Case, stating that sentencing would be
1

 The guidelines in the Miami Case were calculated as follows: The base

offense level was set at 38 because the offense involved at least 150 kilograms but

less than 500 kilograms of cocaine. Although the Presentence Investigation Report

initially recommended a four-level enhancement for role, the government

subsequently agreed that the upward adjustment was not warranted. After a threelevel adjustment for acceptance of responsibility, the total offense level was set at

35, with a criminal history category of I, which yielded a total guideline range of

168-210 months.

4

pronounced first in the Miami Case, with the court then taking up the Rule 20 case.

After addressing the parties’ objections to the Presentence Investigation (“PSI”) that

had been prepared in the Miami Case, the district court sentenced Diaz-Clark to 168

months’ imprisonment, five years’ supervised release, and a $50.00 assessment.1

After the sentence had been pronounced, the court asked if there were any objections

to the findings of fact or the manner in which the sentence had been imposed– DiazClark made no objections.

The district court then called the Rule 20 Case. The prosecutor provided the

court with a copy of a written plea agreement, with which the court in turn provided

the probation officer, asking the probation officer to perform certain Sentencing

Guidelines calculations. The court then placed Diaz-Clark under oath and conducted

a plea colloquy. The court then accepted Diaz-Clark’s guilty plea to Count I of the

Rule 20 indictment. When asked about the application of the Sentencing Guidelines,

the probation officer, the court, and counsel engaged in a short discussion concerning
5

the court’s reasoning behind the order in which the cases were sentenced. Diaz-Clark

then waived a PSI, and the court sentenced him to 120 months’ imprisonment, five

years’ supervised release, and a $50.00 assessment with the Rule 20 sentence to run

concurrently with the Miami Case sentence. Again the court asked if there were any

objections to the findings of fact or the manner in which the sentence had been

imposed and again Diaz-Clark made no objections.

Diaz-Clark did not appeal the sentence that had been imposed in either the

Miami Case or the Rule 20 Case. However, on April 23, 1997, he filed a petition for

a writ of habeas corpus in both cases. In the Miami Case petition, Diaz-Clark argued

that he was entitled to habeas relief because of: (1) the disparity between his sentence

and those of his co-defendants; (2) the district court’s failure properly to consider his

alleged abandonment of the conspiracy; (3) the court’s failure to sentence him below

the guideline range; (4) a violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) the

government’s failure to file a substantial assistance motion; and (6) an ineffective

assistance of counsel claim, brought against one of Diaz-Clark’s two trial attorneys.

The petition did not raise the alleged grouping error that is central to this appeal.

After the petition had been fully briefed, the magistrate judge issued a report and

recommendation which the district court adopted on February 23, 2000, ordering that

the petition be denied. The court then denied Diaz-Clark’s motion for reconsideration.
6

Diaz-Clark filed a notice of appeal, and the district court subsequently denied his

request for a certificate of appealability.

In the Rule 20 habeas petition, Diaz-Clark argued that the sentence should be

vacated due to (1) the court’s erroneous application of a ten-year mandatory minimum

sentence and (2) the government’s failure to file a substantial assistance motion. The

government conceded that Diaz-Clark’s sentence in the Rule 20 Case should not have

been subject to the Level 30 ten-year mandatory minimum for 1,000 kilograms or

more of marijuana, and therefore agreed that Diaz-Clark should be resentenced in that

case. Accordingly, the magistrate judge entered a Report and Recommendation,

which the district court then adopted on February 16, 2000, recommending that the

habeas petition be granted in part, limited to the issue of resentencing due to the

confusion over the mandatory-minimum issue. The resentencing hearing was

scheduled for May 2, 2000.

On May 1, 2000, a probation officer advised the district court that in imposing

its original sentence in the Rule 20 Case, it should have treated the indictments in that

case and the Miami Case as if they were separate counts of conviction contained in the

same indictment, therefore sentencing Diaz-Clark under U.S.S.G. § 5G1.2. The

Commentary to this Section states in pertinent part: “This section applies to multiple

counts of conviction (1) contained in the same indictment or information, or (2)
2

 The base offense level was determined to be 38 because the Miami Case

involved 300 kilograms of cocaine. The Rule 20 Case involved more than 700

kilograms but less than 1,000 kilograms of marijuana, or the equivalent of an

additional five kilograms of cocaine. Because the combined total was more than

150 but less fewer than 500 kilograms of cocaine, the base offense level remained

38, the same as that in the Miami Case alone. There was an adjustment of two

levels made for the safety valve under U.S.S.G. § 2D1.1(b)(6), an adjustment of

two levels for minor role as agreed in the Rule 20 Case, and a three-level

adjustment for acceptance of responsibility; this yielded a total offense level of 31,

with a concomitant guideline range of 108-135 months.

7

contained in different indictments or informations for which sentences are to be

imposed at the same time or in a consolidated proceeding.” UNITED STATES

SENTENCING COMMISSION, Guidelines Manual, § 5G1.2, cmt. (2001). With this in

mind, the probation officer recalculated the guidelines level, which resulted in an

adjusted offense level of 31 and a criminal history category of I.2

 The probation

officer recommended that these calculations be applied in both the Miami Case and

the Rule 20 Case, as in the probation officer’s opinion, these cases should have been

grouped in the first instance.

The government filed an objection to the probation officer’s recommendation,

arguing that the Miami Case and Rule 20 Case were “distinct criminal episodes”

involving “different co-conspirators for the importation of a different [sic] narcotics

at a different location which was [sic] investigated and charged separately in two

different districts . . . .” The government contended that resentencing was only
8

appropriate in the Rule 20 Case, and not in the Miami Case, because only the Rule 20

habeas petition had been partially granted.

The district court then invited the parties to brief the issue of how it could

obtain jurisdiction to remedy this perceived grouping error. Because Diaz-Clark’s

appeal of the denial of the Miami Case’s habeas corpus petition was before this Court,

the district court determined that it did not have jurisdiction to attempt to correct the

sentence in that case. Diaz-Clark argued that the district court could obtain

jurisdiction to resentence him in the Miami Case if this Court were to issue a limited

remand. The government argued in opposition that the court could not regain

jurisdiction because of the following: (1) the case was on appeal; (2) there was no

pending motion that would warrant the filing of a motion under United States v.

Ellsworth, 814 F.2d 613 (11th Cir. 1987); and (3) if Diaz-Clark were to file a motion

for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure, so that he could raise this sentencing issue as a new basis for relief, such

motion would of necessity be denied as a time-barred successive 28 U.S.C. § 2255

petition.

On May 17, 2000, the district court entered an order entitled “Certification to

the Eleventh Circuit Court of Appeals,” wherein the court noted what it considered to

be an error in not grouping the Miami Case and the Rule 20 Case in imposing
9

sentence. The Certification Order requested this Court to remand the Miami Case’s

habeas case for the limited purpose of allowing the district court to have both cases

before it so it could group them together in calculating the sentence under the

Guidelines. The district court wrote that “[t]he procedural nuances of two rather

arcane areas of law (the Sentencing Guidelines and post-conviction collateral

litigation) have collided in this case, and left the Court unable to correct a sentencing

error.” On August 21, 2000, this Court entered an order carrying the district court’s

certification with the case. Diaz-Clark also filed a motion for a limited remand, which

was also ordered to be carried with the case. Finally, on December 6, 2000, DiazClark moved for voluntary dismissal of his appeal, which was granted on January 12,

2001.

Diaz-Clark’s resentencing hearing was then set for March 8, 2001. At that

hearing, the district court, over the objection of the government as to the court’s

jurisdiction to do so, proceeded to resentence Diaz-Clark for both the Rule 20 Case

and the Miami Case. The adjusted guideline range was 31 with a criminal history

category of I, which yielded a guideline range of 108 to 135 months’ imprisonment.

The district court denied Diaz-Clark’s motion for downward departure based on

rehabilitation, and sentenced him to concurrent sentences of 108 months’

imprisonment and three years’ supervised release. This resulted in a five-year
10

decrease from the original sentences. Diaz-Clark then reminded the court that under

the Rule 20 Case’s plea agreement, the maximum sentence that could be imposed in

that case was 60 months’ imprisonment. The court accordingly amended its final

judgment to indicate that the sentence imposed in the Rule 20 Case was 60 months’

imprisonment. The government noted its objection based on the court’s lack of

jurisdiction to resentence in the Miami Case.

The district court’s position vis-à-vis resentencing Diaz-Clark in both cases, in

order to reflect what it considered to be the correct application of the Sentencing

Guidelines’ grouping requirements, was that federal courts enjoy a species of

“inherent power” to correct an illegal sentence. In reaching this conclusion, the court

relied on United States v. Cochran, 883 F.2d 1012 (11th Cir. 1989), and United States

v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc). The court found this power to have

been “predating and independent from the adoption of the Federal Rules of Criminal

Procedure.” The court concluded by stating, “In short, this Court not only has the

inherent power to correct an illegal sentence, it is obligated to correct an illegal

sentence.”

II. DISCUSSION

We have jurisdiction to adjudicate this appeal pursuant to 18 U.S.C. § 3742(b).
11

Whether the district court had jurisdiction to resentence Diaz-Clark is a legal question

subject to plenary review. See United States v. Sjeklocha, 114 F.3d 1085, 1087 (11th

Cir. 1997) (“The question whether the district court had the authority to resentence the

defendant under former Fed. R. Crim. P. 35(a) and 28 U.S.C. § 2255 is a legal

question subject to plenary review.”); see also United States v. Maduno, 40 F.3d 1212,

1215 (11th Cir. 1994) (“Whether a court has jurisdiction over a particular case is a

question of law subject to plenary review.”).

After a thorough review of the pleadings, the record, and the briefs on appeal,

we conclude that the district court erred in concluding that aside from the specific

parameters set forth by the federal statutory provisions controlling sentencing, as well

as the Federal Rules of Criminal Procedure, it could invoke an “inherent power” to

correct what it viewed as the illegal sentence it had imposed in the Miami Case. We

therefore vacate the district court’s resentencing in the Miami Case and remand that

case back to the district court with instructions to reinstate the original sentence.

The most germane facts are these. The sentence in the Miami Case was

imposed on March 3, 1995. Diaz-Clark did not appeal this sentence, but on April 23,

1997, filed a § 2255 habeas petition. The habeas petition did not raise the grouping

issue. On February 23, 2000, the district court denied this petition. Diaz-Clark

appealed this denial, and then voluntarily dismissed his appeal on January 12, 2001.
3

 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

32, 110 Stat. 1214 (1996).

12

On March 8, 2001, the district court resentenced Diaz-Clark in both cases. This was

more than six years after the original sentence had been imposed in the Miami Case

and more than one year after the Miami Case habeas petition had been denied.

The starting point for the analysis is the relevant statutory provision. Section

3582 of Title 18, United States Code, provides in pertinent part:

The court may not modify a term of imprisonment once it has been

imposed except that–

(1) in any case–

. . .

(B) the court may modify an imposed term of imprisonment

to the extent otherwise expressly permitted by statute or by

Rule 35 of the Federal Rules of Criminal Procedure.

18 U.S.C. § 3582(c). The proviso that a court may modify a sentence when “expressly

permitted by statute” refers to situations where the defendant is incarcerated pursuant

to a “plainly illegal sentence.” FED.R.CRIM. P. 35 advisory committee’s notes. The

drafters of the Federal Rules of Criminal Procedure explicitly assumed “that a

defendant detained pursuant to such a sentence could seek relief under 28 U.S.C. §

2255 if the seven day period provided in Rule 35(c) has elapsed.” Id. Here, however,

Diaz-Clark failed to raise the grouping issue on direct appeal or in his original § 2255

petition. Therefore, Diaz-Clark is confronted with the AEDPA’s3

 “second or
4

 Further, it is somewhat unclear whether Diaz-Clark’s argument concerning 

misapplication of the sentencing guidelines would be proper grounds for relief

under § 2255 because “nonconstitutional claims can be raised on collateral review

only when the alleged error constitutes a ‘fundamental defect which inherently

results in a complete miscarriage of justice [or] an omission inconsistent with the

rudimentary demands of fair procedure.’ ” Burke v. United States, 152 F.3d 1329,

1331 (11th Cir. 1998) (quoting Reed v. Farley, 512 U.S. 339, 348 (1994)).

13

successive” petition limitation if he attempts to attack the sentence in the Miami Case

in this manner. Under this limitation, Diaz-Clark must obtain certification by the

court of appeals before a “second or successive” habeas petition may be pursued in

the district court, and such certification will only be granted if the petitioner makes a

showing of newly discovered evidence that establishes his or her innocence, or points

to a new rule of constitutional law, recognized by the Supreme Court and made

retroactively applicable to cases on collateral review. See 28 U.S.C. §§ 2244, 2255;

see also Castro v. United States, ___ F.3d ___, (11th Cir. May 7, 2002) (describing

strictures placed on successive habeas petitions). Neither prong is met under the facts

of this case.4

Therefore, the district court could have modified the sentence imposed in the

Miami Case only in one of two ways: (1) pursuant to Rule 35 of the Federal Rules of

Criminal Procedure, or (2) pursuant to the “inherent authority” upon which the district
5

 It is worth noting here, by way of general background, that “[i]t is by now

axiomatic that the inferior federal courts are courts of limited jurisdiction. They

are ‘empowered to hear only those cases within the judicial power of the United

States as defined by Article III of the Constitution,’ and which have been entrusted

to them by a jurisdictional grant authorized by Congress.” University of So. Ala. v.

American Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v.

Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). In this regard, “a federal court is

powerless to act without jurisdiction . . . .” Id. at 410.

14

court relied.5 As the district court noted in its Certification to the Eleventh Circuit,

“[n]either Rule 35 of the Federal Rules of Criminal Procedure nor 18 U.S.C. § 3583(e)

[dealing with issues of supervised release] provides authority to resentence Diaz-Clark

in [the Miami Case].” This was an accurate statement, and as such the district court

acted outside the boundaries of its jurisdiction when it resentenced Diaz-Clark in the

Miami Case.

Prior to the 1987 amendments to the Federal Rules of Criminal Procedure, Rule

35(a) stated that “[t]he court may correct an illegal sentence at any time and may

correct a sentence imposed in an illegal manner within the time provided herein for

the reduction of sentence.” However, as part of the Sentencing Reform Act of 1984,

Congress amended this part of Rule 35. On November 1, 1987, the amendments took

effect. Then Rule 35 was again amended in 1991. As amended, Rule 35 provides that

a sentencing court may correct a sentence: (1) if directed to do so on remand from an

appellate court, see FED.R.CRIM.P. 35(a); (2) within one year of the original sentence
15

if upon a substantial assistance motion filed by the government, see id. 35(b); or (3)

most significantly for this appeal, “within seven days after the imposition of sentence,

... [to] correct a sentence that was imposed as a result of arithmetical, technical, or

other clear error.” Id. 35(c).

This Court has conclusively held that “the seven-day limitation contained in

Rule 35(c) is a jurisdictional restriction,” United States v. Morrison, 204 F.3d 1091,

1093 (11th Cir. 2000); see also United States v. Yost, 185 F.3d 1178, 1180 n.3 (11th

Cir. 1999) (“Rule 35(c) authority is jurisdictional.”) (dicta), and other Courts of

Appeal have agreed. See, e.g., United States v. Lopez, 26 F.3d 512, 518-19 (5th Cir.

1994) (per curiam); United States v. Fahm, 13 F.3d 447, 453 (1st Cir. 1994); United

States v. Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994). Therefore, a court’s

modification of a sentence outside of this seven-day period is an action taken without

the requisite jurisdiction, and is a legal nullity. See Morrison, 204 F.3d at 1094

(vacating district court’s modified sentence imposed thirteen days after original

sentence orally imposed).

Other circuit courts that have addressed the issue are in accord. See, e.g.,

United States v. Austin, 217 F.3d 595, 597 (8th Cir. 2000) (“Thus, more than seven

days after the imposition of [the defendant’s] sentence, the District Court had no

jurisdiction to alter it, even if the sentence was legally erroneous.”); United States v.
16

Barragan-Mendoza, 174 F.3d 1024, 1029 (9th Cir. 1999) (stating that the party

seeking sentence modification “must meet the conditions of [Rule 35(c)]; otherwise,

the district court cannot modify a defendant’s sentence” and vacating sentence

modified two months after original sentence imposed); United States v. Werber, 51

F.3d 342, 348 (2d Cir. 1995) (“Because the district court modified the defendants’

original sentences more than seven days after they were imposed, the court had no

jurisdiction to enter the corrected judgments under Rule 35(c).”); Lopez, 26 F.3d at

520 (holding that modification of original sentence “occurred outside the seven-day

window and the district court lacked jurisdiction to act pursuant to Rule 35(c)”);

Fahm, 13 F.3d at 454 (“Since the narrow window of opportunity allowed under Rule

35(c) closed long before the district court reconsidered its original sentence, and the

court lacked inherent power to do so, the original sentence must be reinstated.”);

United States v. Daddino, 5 F.3d 262, 265 (7th Cir. 1993) (per curiam) (concluding

that an attempt to correct a sentence two months after it was imposed “falls well

outside of the limited authority provided in Rule 35(c)”). The district court did not

act within Rule 35(c)’s seven-day time period in modifying Diaz-Clark’s sentence in

the Miami Case. Therefore, the court’s decision can only be upheld if it had some

“inherent authority” to modify the sentence.

The same cases previously cited with respect to Rule 35’s seven-day limitation
17

also dispose of the issue of whether a district court has some sort of inherent authority

to modify a sentence outside of Rule 35(c)’s time period. They conclude that district

courts do not. See, e.g., Barragan-Mendoza, 174 F.3d at 1028 (“[D]istrict courts do

not have ‘inherent authority’ to reconsider sentencing orders.”); United States v.

Handa, 122 F.3d 690, 691 (9th Cir. 1997); United States v. Mendoza, 118 F.3d 707,

709 (10th Cir. 1997) (“A district court does not have inherent authority to modify a

previously imposed sentence; it may do so only pursuant to statutory authorization.”);

Fahm, 13 F.3d at 453 (“Upon careful consideration of the rule, the advisory

committee’s note, and relevant case law, we conclude that the court had no inherent

power to increase its original sentence.”). The Supreme Court has addressed the issue

of a district court’s inherent power in Carlisle v. United States, 517 U.S. 416 (1996).

Carlisle involved the exercise of “inherent power” in the context of a Rule 29 motion

for judgment of acquittal, but the reasoning is instructive. The district court had

granted the defendant’s motion for judgment of acquittal that had been filed one day

outside of the seven-day window allowed under Rule 29(c). The Sixth Circuit

reversed, holding that the district court lacked jurisdiction to do this, and the Supreme

Court affirmed. Addressing the defendant’s contention that the district court had some

“inherent supervisory power” to allow the motion to be filed one day late, the Court

unequivocally concluded that “[w]hatever the scope of this ‘inherent power,’ . . . it
6 See also Barragan-Mendoza, 174 F.3d at 1029:

Analyzing the 1987 amended version of Rule 35, circuits held that

district courts had “inherent authority” to correct sentencing errors,

despite the absence of any statute authorizing such corrections. See

United States v. Rico, 902 F.2d 1065, 1067 (2d Cir. 1990) (“[A] district

court has inherent power in certain circumstances to correct its

acknowledged mistakes, even after the enactment of amended Rule

35(a).”); United States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989)

(similar). Because of such decisions, the Committee in 1991 added

subsection (c). The Committee expressly noted that subsection (c) was

intended to codify the court’s “inherent authority” to modify sentences,

but with more stringent limitations. See Fed. R. Crim. P. 35 advisory

committee’s notes (West 1998) . . . .

(emphasis added).

18

does not include the power to develop rules that circumvent or conflict with the

Federal Rules of Criminal Procedure.” Id. at 426. “ ‘[F]ederal courts have no more

discretion to disregard the Rule’s mandate than they do to disregard constitutional or

statutory provisions.’ ” Id. (quoting Bank of Nova Scotia v. United States, 487 U.S.

250, 254-55 (1988)).

The advisory committee notes to Rule 35’s 1991 amendments themselves

recognized that at least two circuit courts had “held that the trial court has the inherent

authority . . . to correct a sentence” within the time allowed for appeal, and that the

amended Rule 35(c), with its seven-day restriction, “in effect codifies the result in

those two cases but provides a more stringent time requirement.” FED.R.CRIM. P. 35

advisory committee’s notes.6
7

 Diaz-Clark devotes most of his argument on appeal to the proposition that

jurisdiction exists through application of the “sentencing package” doctrine. While

usually applied on direct appeal, we have referred to the sentencing package

doctrine in holding that a district court has jurisdiction, after vacating an 18 U.S.C.

§ 924(c) conviction on a challenge brought in a § 2255 petition pursuant to Bailey

v. United States, 516 U.S. 137 (1995), to resentence a defendant on the remaining,

unchallenged counts. See United States v. Watkins, 147 F.3d 1294 (11th Cir.

1998); United States v. Mixon, 115 F.3d 900 (11th Cir. 1997). Those cases hinge

upon statutory construction of 28 U.S.C. § 2255 and cannot be read so broadly as

to confer jurisdiction over a separate sentence imposed in a separate and unrelated

case.

8

 Because we decide the case on the basis of the district court’s lack of

jurisdiction, we pause here only to note the incongruity of applying grouping to

lower by five years the sentence imposed in the cocaine case alone, before

consideration of the marijuana offense.

In explaining the rationale for grouping, the Sentencing Commission has

pointed out that “[t]he difficulty is that when a defendant engages in conduct that

causes several harms, each additional harm, even if it increases the extent to which

19

The district court relied on United States v. Cochran, 883 F.2d 1012 (11th Cir.

1989), and United States v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc), in reaching

its conclusion. However, this reliance was misplaced, mainly because these cases

predate the 1991 amendments to Rule 35 discussed above.7

Because we conclude that the district court had no jurisdiction to resentence in

the Miami Case, we need not decide the issue of whether the district court correctly

applied the grouping provisions of the Sentencing Guidelines to the Miami Case and

the Rule 20 Case.8

 The district court had concluded that U.S.S.G. § 5G1.2, dealing
punishment is warranted, does not necessarily warrant a proportionate increase in

punishment.” UNITED STATES SENTENCING COMMISSION, Guidelines Manual, Ch.

1, Pt. A, p.8 (2001). While the “volume discount” for grouping unrelated offenses

has been described as “hardly intuitive,” United States v. Hernandez Coplin, 24

F.3d 312, 319 (1st Cir. 1994), in this case the inclusion of the marijuana offense

resulted not in a discount but in a rebate. This anomaly was created by the twolevel adjustment for safety valve, which had not been enacted at the time of the

original sentencing in the cocaine case, and the two-level adjustment for the minor

role the defendant played in the subsequent marijuana case.

20

with the appropriate sentence to be imposed on multiple counts of conviction, applied

to the cases before it because the Commentary states: “This section applies to multiple

counts of conviction (1) contained in the same indictment or information, or (2)

contained in different indictments or informations for which sentences are to be

imposed at the same time or in a consolidated proceeding.” Id. Regardless, the Miami

Case was not properly before the district court after Diaz-Clark’s habeas petition in

the Rule 20 Case had been granted for the limited purpose of resentencing in order to

come into compliance with the plea bargain entered into in that case.

III. CONCLUSION

In conclusion, under the relevant statutes and case law, the district court acted

without jurisdiction when it resentenced Diaz-Clark in the Miami Case. It acted

outside of Rule 35(c)’s seven-day jurisdictional limit, without a remand from this

Court and without a substantial assistance motion filed by the government. Outside
21

of Rule 35(c) there exists no “inherent authority” for a district court to modify a

sentence. Therefore, the sentence is VACATED, and the case is REMANDED with

instructions to the district court to reinstate the original Miami Case sentence.

VACATED AND REMANDED.