925 F. 2d 1471 - United States v. Fleming
925 F2d 1471 United States v. Fleming
925 F.2d 1471
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dale Eugene FLEMING, Defendant-Appellant.
No. 90-30249.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 20, 1991.*
Decided Feb. 22, 1991.
Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.
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MEMORANDUM**
Dale Eugene Fleming appeals his sentence following his guilty plea to one count of possession of a weapon during a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1). Fleming contends that the district court erred by imposing a three year term of supervised release because the sum of the supervised release term and the five year term of incarceration exceeds the statutory maximum term of imprisonment under section 924(c)(1). We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.
We review the legality of a sentence de novo. United States v. Cloud, 921 F.2d 225, 230 (9th Cir.1990).
The offense of carrying a firearm during a drug trafficking offense carries a maximum prison term of five years under 18 U.S.C. Sec. 924(c)(1). It is classified as a Class D felony under 18 U.S.C. Sec. 3559(a)(4), which provides that any otherwise unclassified offense is a Class D felony if the imprisonment authorized is five or more years but less than ten years. See United States v. Robertson, 901 F.2d 733, 734 (9th Cir.), cert. denied, 111 S.Ct. 395 (1990). 18 U.S.C. Sec. 3583 authorizes the district court "in imposing a sentence to a term of imprisonment for a felony or a misdemeanor [to] include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment," up to a maximum term of three years supervised release for a Class D felony. There is no indication that the term of supervised release after imprisonment authorized by section 3583(a) cannot be in addition to the five year maximum term of imprisonment mandated by section 924(c)(1). Robertson, 901 F.2d at 734-35.
Thus, the district court did not err by sentencing Fleming to a three year term of supervised release to be served in addition to a five year term of imprisonment. See United States v. Doering, 909 F.2d 392, 393-94 (9th Cir.1990); United States v. Montenegro-Rojo, 908 F.2d 425, 431-34 (9th Cir.1990); Robertson, 901 F.2d at 734-35.
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. This case is not appropriate for initial hearing en banc. Fed.R.App.P. 34(a); 9th Cir.R. 35-1
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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3