Gaertner v. U.S.

• Citation: 763 F.2d 787
• Decision Date: 11 July 1985
• Docket Number: No. 84-2317,84-2317
• Parties: Thomas D. GAERTNER, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 787

763 F.2d 787

Thomas D. GAERTNER, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.

No. 84-2317.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1985.

Decided June 3, 1985.

Rehearing and Rehearing En Banc Denied July 11, 1985. ^*

Lawrence O. Anderson, Asst. U.S. Atty., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Kenneth N. Flaxman, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

Defendant Gaertner filed a motion for reduction of sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure in the Eastern District of Wisconsin 119 days after the Supreme Court entered an order denying defendant a writ of certiorari on a direct appeal from his conviction. On July 25, 1984, 191 days after the Supreme Court's denial of certiorari, the district court denied defendant's Rule 35(b) motion on the ground that the court lacked jurisdiction to reduce defendant's sentence. Defendant appeals from the district court's decision. ¹

I. THE PROCEEDINGS BELOW

On August 7, 1981, a jury convicted defendant Thomas Gaertner of possession with intent to distribute cocaine. Approximately two months later the trial judge sentenced defendant to a term of twelve years in prison, plus six years of special parole. Defendant appealed his conviction and his sentence to this court. This court upheld defendant's conviction as well as his sentence and also notified defendant that Rule 35(b) authorized him to request a reduction of his sentence from the trial court within 120 days of the trial court's receipt of a mandate of affirmance from this court. United States v. Gaertner, 705 F.2d 210, 219 & n. 3 (7th Cir.1983). Defendant subsequently filed a petition for writ of certiorari in the Supreme Court. The Supreme Court denied defendant the writ on January 16, 1984. Gaertner v. United States, --- U.S. ----, 104 S.Ct. 979, 79 L.Ed.2d 216 (1984). One hundred and nineteen days after the Supreme Court's denial of certiorari, defendant filed a motion for reduction of sentence in the trial court. The trial court denied defendant's motion 191 days after the Supreme Court's denial of certiorari, relying on three factors it had set forth in a similar Rule 35 case entitled United States v. Cotton, 586 F.Supp. 199, 202 (E.D.Wis.1983). These factors were:

(1) defendant's filing in the twilight of the 120-day period;

(2) the court's failure to resolve the motion prior to the expiration of the 120-day period; and

(3) the lack of newly discovered evidence or a change of circumstances occurring within the last days of the time limitation.

United States v. Gaertner, 590 F.Supp. 271, 274 (E.D.Wis.1984) (quoting United States v. Cotton, 586 F.Supp. at 202). In Cotton, the court had announced that it would deny on jurisdictional grounds all Rule 35(b) motions in cases where these three factors were present. United States v. Cotton, 586 F.Supp. at 202. The district court in this case followed the rule it had enunciated in Cotton and consequently denied defendant's Rule 35 motion filed 119 days after the denial of certiorari. United States v. Gaertner, 590 F.Supp. at 274.

II. RULE 35

Federal Rule of Criminal Procedure 35 provides, in pertinent part:

(a) Correction of Sentence. The 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.

(b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation.

FED.R.CRIM.P. 35 (emphasis added). Federal Rule of Criminal Procedure 45(b) makes clear that the court may not enlarge the time limits contained in Rule 35. ² FED.R.CRIM.P. 45.

We note that no such time limits apply if the court seeks to correct an illegal sentence rather than a legal sentence imposed in an illegal manner. Fed.R.Crim.P. 35(A). IN THIS CASE, HOWEVER, DEFENDANT DOES NOT CONTEND THAT THE SENTENCE IMPOSED UPON HIM BY THE TRIAL JUDGE WAS ILLEGAL. DEFENDANT CONCEDES THAT THE TWELVE-YEAR PRISON TERM PLUS SIX-YEAR SPECIAL PAROLE TERM HE RECEIVED WAS WITHIN TH H E STATUTORY LIMITS SET FORTH IN 21 U.S.C. SEC. 841(B)(1)(A), THE STATUTE UNDER WHICH HE WAS CONVICTED. 21 U.S.C. SEC. 841(B)(1)(A) (1981). DEFENDANT CONTENDS, NEVERTHELESS, THAT THE TRIAL JUDGE IMPOSED HIS SENTENCE IN AN ILLEGAL MANNER BECAUSE THE JUDGE, IN SENTENCING DEFENDANT, CONSTRUED SECTION 841(B)(1)(A) TO PERMIT A THIRTY-YEAR PRISON TERM AS WELL AS A SPECIAL PAROLE TERM EVEN THOUGH THE SECTION SET FORTH A FIFTEEN-YEAR MAXIMUM PRISON TERM IN CASES SUCH AS DEFENDANT'S WHERE THE GOVERNMENT FAILED TO FILE PRIOR CONVICTION INFORMATION IN ACCORDANCE WITH 21 U.S.C. SEC. 851(A)(1). 21 U.S.C. SECS. 841(B)(1)(A), 851(A)(1) (1981).

This court agrees that section 841(b)(1)(A) exposed defendant to a maximum term of fifteen years' imprisonment (plus a special parole term of at least three years) in this case. The Government concedes that it failed to file a record of defendant's prior drug convictions in accordance with section 851(a)(1). Thus, the trial court could not enhance defendant's sentence under section 841(b)(1)(A) on the basis of defendant's prior convictions and, accordingly, could not sentence defendant to a prison term of thirty years. Nonetheless, although the trial judge inaccurately interpreted his sentencing discretion in this case, the judge did not impose upon defendant an illegal sentence. Rather, the judge imposed upon defendant a sentence well within the limits set forth in section 841(b)(1)(A). As a result, any Rule 35 challenge to this sentence by defendant had to occur within the 120-day time restraints provided in Rule 35(b).

Defendant did file his Rule 35(b) motion within 120 days of the Supreme Court's denial of his certiorari petition, but the district court failed to consider the motion within this 120-day period. The court then denied defendant's motion on the ground that the court's jurisdiction to reduce defendant's sentence had expired.

This court notes that the district court's ruling conflicts with numerous decisions from federal courts in eight other circuits. These decisions have construed Rule 35 to permit reduction of a defendant's sentence after expiration of the 120-day period, despite Rule 35's seemingly unambiguous limitation of the district court's authority. See, e.g., Diggs v. United States, 740 F.2d 239, 245-46 (3d Cir.1984); United States v. Schafer, 726 F.2d 155, 157-58 (4th Cir.1984), cert. denied, --- U.S. ----, 104 S.Ct. 3512, 82 L.Ed.2d 820; United States v. DeMier, 671 F.2d 1200, 1206-07 (8th Cir.1982). These decisions have interpreted the 120-day limitation as a filing requirement and not a requirement that the district courts resolve timely-filed motions within 120 days. 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). Accordingly, these decisions have extended the district courts' jurisdiction over timely-filed Rule 35 motions for a "reasonable time" in those cases where the sentencing judge has been unable to dispose of a defendant's Rule 35 motion within 120 days. United States v. Krohn, 700 F.2d 1033 (5th Cir.1983). Several of the cases which adhere to this "reasonable time" rule postdate the Supreme Court's opinion in United States v. Addonizio, 442 U.S. 78, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979), where the Court described the 120-day limit as "jurisdictional," but nonetheless do not defer to this dictum in the Court's opinion. ³ See United States v. Dean, 752 F.2d 535, 539 n. 6 (11th Cir.1985).

We observe, initially, that the reasonable time rule followed by these other circuits conflicts with the plain language of Rule 35(b), which speaks in terms of a court's power to act within 120 days of sentencing, dismissal of appeal or denial of certiorari. See United States v. Kajevic, 711 F.2d 767, 768 (7th Cir.1983); United States v. Inendino, 655 F.2d 108, 109 (7th Cir.1981). See also United States ex rel. Quinn v. Hunter, 162 F.2d 644, 647-48 (7th Cir.1947) (decided under the previous sixty-day rule). The Advisory Committee's Notes to Rule 35, in addition, suggest that the 120-day time limits set forth in Rule 35 refer to the time during which a court must decide any timely-filed Rule 35(b) motions. The Notes explain, for example, that the Supreme Court promulgated Rule 35's time limitations in order to "introduc[e] a flexible time limitation on the power of the court to reduce a sentence, in lieu of the [previous] limitation of the term of court." FED.R.CRIM.P. 35 advisory committee note. The term of court limitation signified a termination of the judge's power to reduce a defendant's sentence at the end of the term during which the defendant's sentence was imposed. See United States v. Benz, 282 U.S. 304, 306-07, 51 S.Ct. 113, 113-14, 75 L.Ed. 354 (1931). When Rule 35(b) first abolished the term of court rule, it substituted a sixty-day period during which courts could reduce a defendant's sentence. The Rule described the sixty-day limitation as a limitation on the court's power to act, just as courts had interpreted the common law term of court rule. The Supreme Court extended the Rule 35(b) period to 120 days in 1966, in part because the sixty-day period often expired before district courts were able to consider defendants' claims. FED.R.CRIM.P. 35 advisory committee note. It appears, therefore, that the Supreme Court intended, in promulgating the current version of...