U.S. v. Karp, 83-5307

• Decision Date: 25 June 1985
• Docket Number: No. 83-5307,83-5307
• Citation: 764 F.2d 613
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leon KARP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 613

764 F.2d 613

UNITED STATES of America, Plaintiff-Appellee, v. Leon KARP, Defendant-Appellant.

No. 83-5307.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 3, 1984.

Decided June 25, 1985.

Curtis B. Rappe, Los Angeles, Cal., for plaintiff-appellee.

Paul Caruso, Beverly Hills, Cal., Janet Sherman, Santa Monica, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, FARRIS and POOLE, Circuit Judges.

GOODWIN, Circuit Judge.

Leon Karp seeks relief from a federal prison sentence that was imposed ten years ago but which, because of the government's negligence, he has not yet begun to serve.

Karp was convicted in 1974 of possession of counterfeit bills and sentenced to a three-year prison term. We affirmed the conviction, United States v. Karp, 508 F.2d 1122 (9th Cir.1974), and issued our mandate.

In March 1975, at Karp's request, the district court stayed enforcement of our mandate pending the Supreme Court's disposition of Karp's petition for writ of certiorari. The Supreme Court denied certiorari in June 1975, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669, and notified Karp's attorney of its action.

Karp never surrendered himself to serve his sentence after the Supreme Court denied certiorari, nor did the government take steps to take him into custody. In October 1983, the government discovered that Karp had never been in custody under the sentence and moved to terminate the district court's March 1975 stay and remand Karp to custody. Karp then filed a motion to "correct" his sentence to a term of probation under Fed.R.Crim.P. 35(a) or to reduce it under Rule 35(b). The district court, believing that it had no choice, ordered Karp to serve his sentence. Karp appeals.

In essence Karp asked the district court to alter his sentence or release him from it altogether. A district court may correct an illegal sentence at any time under 28 U.S.C. Sec. 2255 ¹ and Fed.R.Crim.P. 35(a), and it may reduce a legal sentence within the time period prescribed by Fed.R.Crim.P. 35(b). However, Karp's sentence is not illegal and thus cannot be corrected under Sec. 2255 or Rule 35(a), and his motion for reduction of sentence under Rule 35(b) is several years too late.

Although Karp does not present a case for relief under Rule 35, the district court has power to place him on probation. The Probation Act, 18 U.S.C. Secs. 3651 et seq., empowers the district courts to suspend a sentence and place the defendant on probation. The issue in this case is how long the district court retains the power to order probation.

As originally enacted, the Probation Act gave the district courts power to order probation "after conviction or after a plea of guilty or nolo contendere." ² We held shortly after the Act was passed that this language did not limit a district court to ordering probation at the time the court entered a judgment of conviction; rather, it permitted the district court to order probation at any time so long as the defendant had not yet begun to serve his sentence. Nix v. James, 7 F.2d 590 (9th Cir.1925). A few years later, the Supreme Court held that the Probation Act did not by its terms set an outer limit within which the district court must order probation after a defendant started serving his sentence. United States v. Murray, 275 U.S. 347, 356-358, 48 S.Ct. 146, 148-49, 72 L.Ed. 309 (1928). However, the Court did say that probation must be ordered before any part of the sentence upon the judgment of conviction has been served, and cited our opinion in Nix as being consistent with its opinion. 275 U.S. at 358, 48 S.Ct. at 149.

Murray and Nix do not say whether a district court must order probation within the time limits of Rule 35(b) because the rule did not exist when those cases were decided. Subsequent cases have said that probation need not be ordered within the Rule 35(b) time limits. Phillips v. United States, 212 F.2d 327, 334 (8th Cir.1954). See United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir.1968) (dictum); Whitfield v. United States, 401 F.2d 480, 482 (9th Cir.1968). ³

In 1979 Rule 35(b) was amended to provide that "[c]hanging a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision." We read this 1979 amendment as permitting a district court to place a defendant on probation when it reduces a sentence under Rule 35(b), even if the defendant has already begun serving his sentence. Because of Murray, district courts prior to the 1979 amendment could not order probation when reducing a sentence pursuant to Rule 35(b) if the defendant had already begun to serve his sentence. The amendment reveals no legislative intent to go beyond the Murray problem. It contains nothing to suggest that all grants of probation must be made within the Rule 35(b) time limits. Moreover, the advisory committee note to Rule 35 says that the 1979 amendment changes existing law "[t]o the extent that [it] permits the judge to grant probation to a defendant who has already commenced service of a term of imprisonment." As discussed earlier, the law in 1979 was that Rule 35(b) did not govern the granting of probation, and the advisory committee note does not suggest that the amendment has changed this part of the law.

We do not hold that the trial court has any power under Rule 35 to reduce a sentence after the Rule 35 time limits have expired. We do hold that, wholly apart from Rule 35, the sentencing court has had the power since 1925 to order probation for a convicted defendant at any time before the execution of the pronounced but unexecuted sentence begins. The statutory basis for probation and the strict requirement that it not be ordered after execution of the sentence begins are fully explained in Murray, 275 U.S. at 356-357, 48 S.Ct. at 148-149. The principles enunciated in Murray have not been repealed or modified by subsequent expansions of the court's authority under Rule 35. As noted earlier, this is not a Rule 35 case. The case challenges the trial judge's authority to order probation, and nothing more.

Because Karp had not yet begun to serve his sentence, the district court had power to place Karp on probation. It had no duty to do so. We remand the case to the district court to permit it to exercise this power if it sees fit to do so. Whether Karp is a worthy candidate for probation is a matter wholly within the competence of the trial court to decide.

In briefs and argument Karp raised a number of theories that the unexecuted sentence, by the passage of time, somehow became illegal or unconstitutional. Because we are remanding the case to the district court to permit the district judge to consider probation pursuant to 18 U.S.C. Sec. 3651 et seq., we need not reach, and express no opinion on, the constitutional questions tendered by the appeal.

Remanded.

POOLE, Circuit Judge, dissenting.

I respectfully dissent from the court's ruling that a district court may grant probation after expiration of the 120 days allowed by Rule 35 of the Federal Rules of Criminal Procedure. My reasoning is uncomplicated: The Rule puts a 120-day limit on the court's power to reduce a sentence after receipt of a mandate affirming a judgment of conviction or dismissing an appeal, or after the Supreme Court has denied a petition for certiorari. A modification of a prison sentence to one of probation is a "reduction." The time here had expired. The court could not, under Federal Rules of Criminal Procedure 35(b) and 45(b), grant that reduction.

As amended effective August 1, 1979, Rule 35(b) states in clear words that:

Changing a sentence from a sentence of incarceration to grant of probation shall constitute a permissible reduction of sentence under this subdivision.

If probation following an original sentence of incarceration is a reduction, I do not know why it is not governed by the time limits of Fed.R.Crim.P. 35(a). Nothing in the majority's analysis shows the contrary.

In 1925 the Probation Act was passed granting authority to place a convicted defendant on probation. That same year this circuit held in Nix v. James, 7 F.2d 590 (9th Cir.1925), that the power to grant probation was not limited by the term of court rule which precluded adjustment of judgments after expiration of the term of court in which a judgment was rendered. Nix held that probation could be granted after expiration of the term, but not after the defendant had begun to serve his sentence. This was to prevent the courts from disrupting the functions of the custodial and parole authorities once the defendant had been committed to their custody.

Rule 35(b) was not yet in existence when Nix was decided, nor when its rule was approved by the Supreme Court in United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928), or when it was confirmed in Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955).

By order of the Supreme Court of February 8, 1946, the Federal Rules of Criminal Procedure became effective as of March 21, 1946. See Order, 327 U.S. 825 (1946). Included was Rule 35, which read:

The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.

Id., 327 U.S. at 856. As originally adopted, the period for reducing a sentence was limited to 60 days. This was changed by amendments of February 28, 1966, effective July 1, 1966, to provide a period of 120 days:

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...