FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 November 8, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-16432

Non-Argument Calendar

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D.C. Docket No. 86-00322-CR-FAM 

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

RICHARD JOSEPH,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida 

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(November 8, 2006)

Before EDMONDSON, Chief Judge, TJOFLAT and BARKETT, Circuit Judges.

PER CURIAM:
 Because the offenses of which Joseph was convicted occurred before 1 November 1987, a former

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version of Fed.R.Crim.P. 35(a), which provides that a district court “may correct an illegal sentence

at any time,” applies in this case. See Fed.R.Crim.P. 35(a) (1987).

 Title 18 U.S.C. § 4205(b)(1), which applied to defendants convicted of offenses committed 2

before 1 November 1987, provided:

Upon entering a judgment of conviction, the court having jurisdiction to impose

sentence, when in its opinion the ends of justice and best interest of the public require

that the defendant be sentenced to imprisonment for a term exceeding one year, may

. . . designate in the sentence of imprisonment imposed a minimum term at the

expiration of which the prisoner shall become eligible for parole, which term may be

less than but shall not be more than one-third of the maximum sentence imposed by

the court.

See United States v. Beale, 921 F.2d 1412, 1436 n.26 (11th Cir. 1991) (“Congress repealed [18

U.S.C. § 4205] by the Comprehensive Crime Control Act of 1984, effective as to crimes committed

after November 1, 1987.”).

2

Richard Joseph appeals the district court’s denial of his second motion to

correct an illegal sentence pursuant to Fed.R.Crim.P. 35(a). No reversible error 1

has been shown; we affirm.

Joseph was convicted by a jury of multiple narcotics offenses that occurred

between 1980 and 1986, including continuing criminal enterprise in violation of

21 U.S.C. § 848. The district court sentenced Joseph to consecutive sentences

totaling 150 years’ imprisonment and to a special parole term of 12 years. The

district court also ordered that, pursuant to 18 U.S.C. § 4205(b)(1), Joseph would

not become eligible for parole until after 40 years’ imprisonment. 

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3

After we affirmed Joseph’s convictions and sentences on direct appeal and

affirmed the denial of his 28 U.S.C. § 2255 motion to vacate his sentence, Joseph

filed his first motion for correction of illegal sentence under Fed.R.Crim.P. 35(a),

in which he argued, among other things, that (1) his 40-year minimum sentence

before reaching parole eligibility exceeded one-third of the 100-year maximum

sentence that could have been imposed on the parole-eligible counts of conviction,

in violation of 18 U.S.C. § 4205 and (2) his sentence violated the Sentencing

Reform Act, 28 U.S.C. § 994. The district court denied Joseph’s Rule 35(a)

motion; and we affirmed, concluding that, because Joseph already had raised the

section 4205 parole eligibility issue in his direct appeal and his section 2255

motion, he could not properly raise this issue for a third time. In addition, we

affirmed the district court’s conclusion that the Sentencing Reform Act did not

apply to Joseph’s case because, among other things, Joseph was sentenced before

its effective date.

Joseph then filed another Rule 35(a) motion for correction of illegal

sentence, which the district court denied. In this motion, Joseph argued that,

pursuant to Fed.R.Crim.P. 6(f), his indictment was invalid, which deprived the

district court of jurisdiction over his case, because the record lacked evidence that

the grand jury returned his indictment in open court. Joseph also re-asserted
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arguments -- under section 4205 and the Sentencing Reform Act -- about the

illegality of the district court’s order requiring him to serve 40 years in prison

before becoming eligible for parole.

The district court properly denied Joseph’s second Rule 35(a) motion. We

are not persuaded by Joseph’s contention that his sentence should be vacated

because the record lacks evidence that his indictment was returned in open court. 

See Hill v. United States, 82 S.Ct. 468, 472 (1962) (explaining that “the narrow

function of Rule 35 is to permit correction at any time of an illegal sentence, not to

re-examine errors occurring at the trial or other proceedings prior to imposition of

sentence” and concluding that a sentence was not illegal because the “punishment

meted out was not in excess of that prescribed by the relevant statutes, multiple

terms were not imposed for the same offense, nor were the terms of the sentence

itself legally or constitutionally invalid in any other respect”) and United States v.

Morgan, 74 S.Ct. 247, 250 (1954) (“Sentences subject to correction under [Rule

35(a)] are those that the judgment of conviction did not authorize.”); cf. United

States v. Pinero, 948 F.2d 698, 700 (11th Cir. 1991) (rejecting defendants’

argument that convictions should be vacated because of absence of indication in

record that jury was sworn in and noting that “[t]he mere absence of an affirmative
 To the extent that Joseph argues that the district court’s order on his parole eligibility is 3

ambiguous, we conclude that this claim is without merit.

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statement in the record . . . is not enough to establish that the jury was not in fact

sworn”). 

And as we have discussed, Joseph cannot properly argue again -- after

raising the claim in his direct appeal, section 2255 motion, and his first Rule 35(a)

motion -- that his 40-year minimum sentence before becoming eligible for parole

violates 18 U.S.C. § 4205. See United States v. Jordan, 429 F.3d 1032, 1035

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(11th Cir. 2005) (“The law of the case doctrine bars relitigation of issues that were

decided, either explicitly or by necessary implication, in an earlier appeal of the

same case.”). In addition, about Joseph’s Sentencing Reform Act argument, we

have explained that the Act does not apply to Joseph’s sentence because he was

convicted and sentenced for offenses that occurred before 1 November 1987. See

United States v. Burgess, 858 F.2d 1512, 1514 (11th Cir. 1988) (explaining that

“Congress has evinced an explicit intent that defendants who have been convicted

of crimes committed prior to November 1, 1987 be sentenced under the old law

[instead of the Sentencing Reform Act]”). Therefore, the district court’s denial of

Joseph’s second Rule 35(a) motion was not reversible error.

AFFIRMED.