Since the sentence is invalid, we remand the case to the District Court for resentencing on those counts. See Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947); United States v. Scott, 502 F.2d 1102 (8th Cir. 1974); United States v. Richardson, 498 F.2d 9 (8th Cir. 1974). In view of the mandatory term of parole prescribed, the District Court may, of course, reduce the length of the sentence of commitment should it desire to do so.
However, the correction of an illegal sentence that results in an increased sentence does not violate the Double Jeopardy Clause as "[i]llegal sentences do not confer legitimate expectations of finality because they are subject to change" and a petitioner "cannot gain a legitimate expectation of finality in a sentence that he challenged." Ward, 240 F.3d at 1243; see also United States v. Bentley, 850 F.2d 327, 329 (7th Cir. 1988); United States v. Guevremont, 829 F.2d 423 427-28 (3d Cir. 1987); Crawford, 769 F.2d at 257-58; Safrit v. Garrison, 623 F.2d 330, 332 (4th Cir. 1980) (in dicta); United States v. Stevens, 548 F.2d 1360, 1362-63 (9th Cir. 1977); United States v. Scott, 502 F.2d 1102, 1103 (8th Cir. 1974); Thompson v. United States, 495 F.2d 1304, 1305-06 (1st Cir. 1974). Jenkins's original sentence was illegal under West Virginia law.
See United States v. Behrens, 375 U.S. 162, 168, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963) (concurring opinion of Harlan, J.) All of the circuits which have considered the question have concluded that the defendant is entitled to be present when a mandatory parole term is imposed, and that in view of the judge's discretion to set the prison portion of the sentence, imposition of the mandatory parole term is not just a ministerial act. Caille v. United States, 487 F.2d 614 (5th Cir. 1973); Mayfield v. United States, 504 F.2d 888 (10th Cir. 1974); Thompson v. United States, 495 F.2d 1304 (1st Cir. 1974). See also United States v. Scott, 502 F.2d 1102 (8th Cir. 1974); United States v. Kenyon, 519 F.2d 1229 (9th Cir.) cert. denied, 423 U.S. 935, 96 S.Ct. 293, 46 L.Ed.2d 267 (1975). In Thompson v. United States, supra, 495 F.2d at 1307, the First Circuit considered the issue on virtually identical facts, the district court having stated that it was aware of the required special parole term at the time sentence was imposed, but merely forgot to pronounce it.
The fact that the punishment of five years, being the minimum authorized by statute, exceeds the unauthorized punishment of three years does not present a double jeopardy problem, as appellants claim. See Bozza v. United States, 330 U.S. 160 (1947), United States v. Scott, 502 F.2d 1102 (1974). The Arkansas courts distinguish constitutionally valid modifications of judgments which do not place the defendant in double jeopardy from others that do, and make a distinction between an unexecuted and executed sentence or judgment See Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1926).