U.S. v. Kahane, 292
| Decision Date | 26 November 1975 |
| Docket Number | No. 292,D,292 |
| Citation | 527 F.2d 491 |
| Parties | UNITED STATES of America, Appellee, v. Meir KAHANE, Appellant. ocket 75--1275. |
| Court | U.S. Court of Appeals — Second Circuit |
Barry Ivan Slotnick, New York City, for appellant.
Edward S. Rudofsky, Asst. U.S. Atty. (David G. Trager, U.S. Atty., E.D.N.Y., Paul B. Bergman, Asst. U.S. Atty., of counsel), for appellee.
Before KAUFMAN, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
Appellant Kahane was sentenced in 1971 by the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, to fine and imprisonment for five years after pleading guilty to charges of conspiring to violate the federal Firearms Act. 18 U.S.C. § 371. However, execution of the sentence imposed was immediately suspended by the court and Kahane was placed on five years probation.
In 1975, Kahane admitted to violating the terms of his probation. The court accordingly revoked Kahane's probation and reinstated the term of imprisonment. However, the sentence of imprisonment was reduced to one year.
Kahane subsequently moved for further reduction of the one-year prison term. This motion was denied by the district court on two grounds: (1) that the district court lacked power to act because of the pendency of an appeal to this court in a related civil action under 28 U.S.C. § 2255, and (2) that, more than 120 days having elapsed since the original, i.e., 1971, sentence, the court had lost the power to reduce sentence under Rule 35 Fed.R.Crim.P. 1 We affirm the ruling on the second ground. 2
Rule 35 was enacted to make uniform the time for termination of the district court's power to reduce sentences. See United States v. Ellenbogen, 390 F.2d 537 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). Since sentence was actually imposed in 1971, see Roberts v. United States, 320 U.S. 264, 268, 64 S.Ct. 113, 88 L.Ed. 41 (1943), the 120-day period permitted by the rule had long run before the 1975 revocation. The 120-day period following imposition of the sentence began in 1971, notwithstanding the suspension at the time of the imposed sentence.
Thus, the district court's power to reduce Kahane's prison term in 1975 was dependent solely on the last sentence of the rule. That power was exercised and exhausted when the court reduced the sentence from five years to one.
The order denying the motion for reduction of sentence is affirmed.
1 Rule 35, Fed.R.Crim.P. provides:
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Cardinell v. State
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...in Hunter, as a limitation on the court's power, see, e.g., United States v. Olds, 426 F.2d 562, 565 (3d Cir.1970); United States v. Kahane, 527 F.2d 491 (2d Cir.1975); United States v. Norton, 539 F.2d 1082 (5th Cir.1976), by 1978 many were treating it as a limitation on the period for fil......
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18 APPENDIX U.S.C. § 35 Correcting Or Reducing a Sentence
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