U.S. v. Mendoza

• Decision Date: 09 January 1978
• Docket Number: No. 77-1464,77-1464
• Citation: 565 F.2d 1285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Santiago Mario MENDOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1285

565 F.2d 1285

UNITED STATES of America, Plaintiff-Appellee, v. Santiago Mario MENDOZA, Defendant-Appellant.

No. 77-1464.

United States Court of Appeals Fifth Circuit.

Jan. 9, 1978.

Rehearing Granted March 9, 1978.

Albert Pena, Corpus Christi, Tex. (Court appointed), for defendant-appellant.

John L. Hill, Atty. Gen., Austin, Tex., James R. Gough, U. S. Atty., George A. Kelt, Jr., Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG and MORGAN, Circuit Judges, and WYZANSKI ^*, District Judge.

GOLDBERG, Circuit Judge:

The sole question presented by this appeal is whether a district court always loses jurisdiction to act upon a motion for reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure at the expiration of the 120 day period provided by the rule. The issue is at the same time both intriguing and troubling, in part because, as the able Assistant United States Attorney candidly remarked at oral argument, the words of the statute are so clearly in the government's favor, yet there are so many cases supporting the defendant's position. We agree with the rationale of those cases rejecting a literal reading of the

rule and hold that when a Rule 35 motion is filed sufficiently early in the 120 day period to provide a reasonable opportunity for the court to consider and rule upon the motion within 120 days, the failure or inability of the trial judge to act on the motion within that period does not divest the trial judge of jurisdiction. Jurisdiction is retained for so long as the judge reasonably needs time to consider and act upon the motion.

I. Factual Background

The defendant was convicted of possessing marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), and was sentenced to three years imprisonment, with a special parole term of three years. We affirmed the conviction in an unpublished opinion, our mandate issuing on September 7, 1976. Fifty days later, on October 27, 1976, the defendant filed a Rule 35 motion for reduction of sentence.

Rule 35 provides in pertinent part:

The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal . . . .

Defendant's motion was filed on the 50th day of the 120 day period initiated by the issuance of our mandate affirming his conviction, well within the time in which the trial court may act under the rule. Due to a combination of factors beyond the defendant's control, including a delay in the receipt of the United States Probation Office's report and a particularly heavy trial schedule, the trial court failed to act on the motion within the 120 day period. After considering the rule and the case law, the trial court concluded that because the 120 day period had expired, it lacked jurisdiction to pass on the defendant's motion. The court recognized the obvious injustice to the defendant of this result and even noted that if it had had jurisdiction to act on the motion, it would have granted a reduction in sentence. The defendant now appeals.

II. A (Purported) Defense of Literalism

The language of the rule does not, except by necessary implication, deal with the time within which a defendant must file for a reduction of sentence. Instead, it specifically refers to the time within which the district court may act : "The court may reduce a sentence within 120 days . . . ." This reading is reinforced by Rule 45(b), which provides that the district court may not enlarge the period for action on a motion under certain specified rules, including Rule 35. For this reason, the time limitation is often referred to as jurisdictional, and this Circuit has held that a district court does not have jurisdiction to modify a sentence when the Rule 35 motion is filed after 120 days have elapsed, United States v. Flores, 507 F.2d 229 (5th Cir. 1975); United States v. Bryan, 498 F.2d 366 (5th Cir. 1974); United States v. Granville, 456 F.2d 1073 (5th Cir. 1972), at least barring special circumstances, cf. United States v. Mehrtens, 494 F.2d 1172, 1176 (5th Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 182, 42 L.Ed.2d 145 (1974). The 1966 amendment to Rule 35, which increased the relevant time period from 60 to 120 days, was accompanied by an Advisory Committee Note which also suggests that the 120 day period was intended as a limit upon the time within which the court may act. ¹

Given the apparently clear language of the rule, it is understandable that the district judge would conclude that he lacked jurisdiction to act upon defendant's motion. Indeed, the Supreme Court has held that the 120 day period. III. The literal language revisited Does

there are limits to the requirements of strict construction of penal statutes when there is no ambiguity or uncertainty in the language or structure of the statute. Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974). In the instant case the language of the rule appears to be neither ambiguous nor uncertain in restricting the trial judge's power to act beyond

the rule mean what it says?

Despite the seemingly dispositive language of the rule, every circuit court which has examined Rule 35 in circumstances similar to those at bar has concluded that when a motion is filed within the 120-day period, jurisdiction extends beyond 120 days in order to allow the trial judge a reasonable time to act on the motion. United States v. Stollings, 516 F.2d 1287 (4th Cir. 1975); United States v. United States District Court, 509 F.2d 1352 (9th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975); United States v. Janiec, 505 F.2d 983 (3d Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427 (1975); United States v. Polizzi, 500 F.2d 856, 896 n. 73 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967); Dodge v. Bennett, 335 F.2d 657 (1st Cir. 1964). Closer to home, then district judge Alvin B. Rubin in United States v. Ourso, 417 F.Supp. 113 (E.D.La.1976), followed these decisions in concluding that it would be unreasonable and inconsistent with the purpose of the rule to interpret the time limit rigidly. The commentators have generally agreed with this interpretation. 2 C. Wright, Federal Practice and Procedure: Criminal § 587, at 573 (1969); 8A J. Moore, Federal Practice 35.02(2), at 35-36. The issue, however, has not yet been decided by this Circuit.

We begin our own inquiry by examining cases in which the Supreme Court was faced with statutes or rules which, if read literally, would have produced unreasonable and unjust results. We do so cognizant of the fact that the parameters of this area of the law are neither consistent nor symmetrical. E. g., compare Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), with Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964).

In the celebrated Holy Trinity Church case, Rector of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), the Supreme Court held that if a literal construction of the words of a statute would lead to an absurd, unjust, or unintended result, the statute must be construed so as to avoid that result. Id. at 461, 12 S.Ct. 511. The church had made a contract with an English pastor, pursuant to which the pastor sailed to the United States and entered into service for the church. The United States sued the church for penalties prescribed by an alien labor law. The Court conceded that the contract was within the literal language of the statute which barred the importation of alien labor, yet concluded that Congress could not have intended the absurd result of prohibiting a church from hiring an English pastor. ²

The principles enunciated in the Holy Trinity Church case have evinced continued vitality in the Supreme Court's jurisprudence. In Perry v. Commerce Loan Co., 383 U.S. 392, 86 S.Ct. 852, 15 L.Ed.2d 827 (1966), the Court stated:

There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one 'plainly at variance with the policy of the legislation as a whole' this Court has followed that purpose, rather than the literal words.

Id. at 400, 86 S.Ct. at 857, quoting United States v. American Trucking Ass'ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). Accord, United States v. Shirey, 359 U.S. 255, 79 S.Ct. 746, 3 L.Ed.2d 789 (1959).

These rules of construction are particularly appropriate in interpreting the Federal Rules of Criminal Procedure. The Rules are not, and were not intended to be, a rigid code with an inflexible meaning irrespective of the circumstances. Fallen v. United States, 378 U.S. 139, 142, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Rule 2 admonishes that "(t)hese rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." As Justice Black remarked in his dissent to the Court's summary affirmance in Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964), "The Criminal Rules were framed with the declared purpose of ensuring that justice not be thwarted by those with too little...