U.S. v. Jackson, 86-7001

• Decision Date: 25 November 1986
• Docket Number: No. 86-7001,86-7001
• Citation: 802 F.2d 712
• Parties: UNITED STATES of America, Appellee, v. Roy Dan JACKSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 712

802 F.2d 712

UNITED STATES of America, Appellee, v. Roy Dan JACKSON, Appellant.

No. 86-7001.

United States Court of Appeals, Fourth Circuit.

Argued March 4, 1986.

Decided Oct. 1, 1986.

Rehearing and Rehearing En Banc Denied Nov. 25, 1986.

John M. Farmer (Joseph E. Wolfe, Wolfe & Farmer, Norton, Va., Birg E. Sergeant, Pennington Gap, Va., on brief), for appellant.

E. Montgomery Tucker, Asst. U.S. Atty. (John P. Alderman, U.S. Atty., Roanoke, Va., on brief), for appellee.

Before WIDENER, SPROUSE and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

The question presented is whether the 120-day limitation of Federal Rule of Criminal Procedure 35(b) prevents a district judge from acting upon an unincarcerated defendant's motion for probation under 18 U.S.C. Sec. 3651 (1962), when the district judge has already denied the defendant's timely motion for reduction of sentence [or for probation] under Rule 35(b) and when 120 days has passed since the imposition of the defendant's sentence. We conclude that the time constraints of Rule 35(b) prevent the district judge from considering the motion, and we affirm.

I

On July 26, 1984, the defendant pleaded guilty to a one-count information charging him with willfully and knowingly filing a United States Individual Income Tax Return Form 1040 which he did not believe to be true and correct in violation of 26 U.S.C. Sec. 7206(1) (1982). After the district judge considered a sentencing memorandum submitted by the United States Attorney as well as substantial evidence presented by the defendant on the issue of a proper sentence, the court imposed a sentence of thirty months. The defendant was ordered to report for confinement on October 29, 1984.

On October 19, 1984, the defendant filed a motion for reduction of sentence under Rule 35(b) and supported this motion with a report from the National Center on Institutions and Alternatives. The district judge took the motion under advisement, but delayed the defendant's date of reporting to December 28, 1984. On December 22, 1984, the district court advised that the motion for reduction of sentence was still under advisement and delayed the defendant's reporting date to March 22, 1985. On February 20, 1985, the court denied the motion for reduction of sentence and directed the defendant to report to the institution designated by the Bureau of Prisons by 3:00 p.m. on Friday, March 22, 1985, to begin the sentence imposed on July 26, 1984. On March 4, 1985, defendant filed a motion for reconsideration of the February 20, 1985 order denying the reduction of sentence, and on March 8, 1985, the motion for reconsideration was denied. On March 22, 1985, the court learned that the defendant had been seriously injured in a mining accident, and the court issued an order extending indefinitely the date for the defendant to report to the federal institution under his sentence.

In October 1985, the government filed a motion to require defendant to immediately surrender and begin serving his sentence. Following a hearing, the court entered an order on October 18, 1985, directing the defendant to report to the institution designated by the Bureau of Prisons by 3:00 p.m. on Monday, January 6, 1986. On the morning of January 6, 1986, defendant filed another motion asking the court:

to reduce the sentence and place him on probation, or otherwise reduce the term of the sentence pursuant to Rule 35(b) of the F.R.C.P. and/or pursuant to 18 U.S.C. Sec. 3651 et seq. and under the authority of Mann v. United States, 218 F.2d 936 (4th Cir.1955) and United States v. Karp, 764 F.2d 613 (9th Cir.1985). This Court also has authority to alter or amend the sentence pursuant to the inherent powers of the Court.

The district court filed an order on January 6 finding that it did not have jurisdiction to grant the defendant's motions, but that if it had jurisdiction, it would consider suspending all but six months of the thirty-month sentence and placing the defendant on supervised probation for the balance of the thirty-month term.

Defendant's attorneys immediately applied to a single judge of this court for a motion to stay the date of defendant's reporting to the federal institution and seeking an expedited appeal. The single judge granted the stay, and the matter was briefed and then argued before this panel at the March 1986 term.

II

The language of Rules 35(b) ¹ and 45(b) ² seems so clear that it should not be necessary to look past them. Under 35(b) a motion for a reduction of sentence must be made within 120 days of the happening of certain events, and the only one applicable to the present case is "120 days after the sentence is imposed." The final sentence of Rule 35(b) clearly directs that the changing of a sentence from one of incarceration to a grant of probation is a permissible reduction under the rule; this is the type relief that the appellant sought from the district court on January 6, 1986. It is clear from the language of the rule that such a motion for probation in place of incarceration must be made within 120 days after the sentence is imposed and that, because of the clear language of Rule 45(b) the 120-day period may not be extended by the court. The change of a prison sentence to a shorter prison sentence and a period of probation is a reduction of the original sentence and subject to Rule 35(b) time limitations.

Appellant made his first motion for reduction of sentence in October 1984, and this was well within the 120-day period following the imposition of his sentence. This motion was denied in February 1985. Appellant immediately moved for reconsideration of the motion, and this was also denied. There was no appeal noticed from either of these denials, and the appellant's next motion for reduction of sentence did not occur until January 6, 1986, the very day that he had been ordered to report to the federal correctional institution. This was more than one year after the 120-day period had expired. The January 1986 motion asked the court "to reduce the sentence and place him on probation or otherwise reduce the term of the sentence pursuant to Rule 35(b) of F.R.C.P. and/or pursuant to 18 U.S.C. Sec. 3651 et seq."

We can find nothing in 18 U.S.C. Sec. 3651 et seq. ³ that would permit its use at so late a date in the proceedings. The Federal Probation Act was passed in 1925 and at that time Rule 35(b) did not exist. In United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928), the Supreme Court decided that once a person had entered upon the service of a criminal sentence, the district court had no power under the Probation Act to grant him probation even though the term of court at which the sentence was imposed had not expired. At that time, motions had to be made during the term of court. This requirement of making motions during the same term of court was one of the reasons for the adoption of Rules 35 and 45. In referring to Rule 35(b), the Advisory Committee on Rules stated:

The first sentence of the rule continues existing law. The second sentence introduces a flexible time limitation on the power of the court to reduce a sentence, in lieu of the present limitation of the term of court. Rule 45(c) abolishes the expiration of a term of court as a time limitation, thereby necessitating the introduction of a specific time limitation as to all proceedings now governed by the term of court as a limitation. The Federal Rules of Civil Procedure (Rule 6(c)), 28 U.S.C. Appendix, abolishes the term of court as a time limitation in respect to civil actions. The two rules together thus do away with the significance of the expiration of a term of court which has largely become an anachronism.

In 1966 Rule 35 was amended: the first sentence dealing with illegal sentences became 35(a), and the time limit was changed from 60 days to 120 days and became a part of 35(b). Rule 35 was amended again in 1979, and the reason is explained by the notes of the Advisory Committee on Rules:

Rule 35 is amended in order to make it clear that a judge may, in his discretion, reduce a sentence of incarceration to probation. To the extent that this permits the judge to grant probation to a defendant who has already commenced service of a term of imprisonment, it represents a change in the law. See United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928) (Probation Act construed not to give power to district court to grant probation to convict after beginning of service of sentence, even in the same term of court); Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955) (Probation Act construed to mean that after a sentence of consecutive terms on multiple counts of an indictment has been imposed and service of sentence for the first such term has commenced, the district court may not suspend sentence and grant probation as to the remaining term or terms). In construing the statute in Murray and Affronti, the Court concluded Congress could not have intended to make the probation provisions applicable during the entire period of incarceration (the only other conceivable interpretation of the statute), for this would result in undue duplication of the three methods of mitigating a sentence--probation, pardon and parole--and would impose upon district judges the added burden of responding to probation applications from prisoners throughout the service of their terms of imprisonment. Those concerns do not apply to the instant provisions, for the reduction may occur only within the time specified in subdivision (b). This change gives "meaningful effect" to the motion-to-reduce remedy by allowing the court "to consider all alternatives that were available at the time of imposition of the original sentence." United States v. Golphin, 362 F.Supp. 698 (W.D.Pa.1973).

The logical meaning of the Committee's comment, "the reduction may occur only within the time specified in subdivision (b)," is that...