U.S. v. Krohn

• Decision Date: 21 March 1983
• Docket Number: No. 82-3262,82-3262
• Citation: 700 F.2d 1033
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joseph E. KROHN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1033

700 F.2d 1033

UNITED STATES of America, Plaintiff-Appellant, v. Joseph E. KROHN, Defendant-Appellee.

No. 82-3262.

United States Court of Appeals, Fifth Circuit.

March 21, 1983.

Shelly C. Zwick, Asst. U.S. Atty., Robert J. Erickson, Atty., Dept. of Justice, Crim. Div., Washington, D.C., for plaintiff-appellant.

John T. Mulvehill, Fed. Public Defender (Court-appointed), Herbert V. Larson, Jr., Asst. Fed. Public Defender, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before JOHNSON, WILLIAMS and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

We are asked to decide as a general matter whether district courts retain jurisdiction over timely-filed motions for reduction of sentence for a reasonable time beyond a lapse of Rule 35's 120-day period, and if so, whether the district court's ten-month delay in rendition of the ruling before us was within the bounds of reasonableness. We decline the invitation to retreat from our long-standing construction of the jurisdictional confines of Rule 35. We find that the district court had jurisdiction to rule as it did, and affirm.

I.

Joseph Krohn and co-defendants Charles McDonald, Edward Gantt, Sharon Magee, and Virginia Kimes were charged in a multi-count indictment with conspiring to possess unregistered firearms and controlled substances, ¹ and with the commission of various related substantive offenses. ² The defendants eventually reached a plea bargain with the United States Attorney. Krohn, Gantt, Magee, and Kimes agreed to plead guilty to the conspiracy count in return for dismissal of the substantive charges against them. McDonald agreed to plead guilty to the conspiracy charge and to two counts charging separate instances of possession and distribution of Quaaludes. The district court examined their pleas in a unitary Rule 11 proceeding, and accepted them all. ³ On December 19, 1980, the district court pronounced sentence on all five. Krohn drew the maximum term of five years imprisonment, and was fined $3000. The other defendants were given varying sentences. ⁴

On April 15, 1981, 117 days after his sentence was imposed, Krohn moved for a reduction of his sentence pursuant to Fed.R.Crim.P. 35(b). In support of his motion, Krohn claimed that he had no prior criminal record, that he was remorseful of his admitted participation in the criminal enterprise, and that given his comparative culpability, he had received a disproportionately harsh sentence. ⁵ Co-defendants Gantt and Magee filed similar motions several days later; apparently, Kimes also moved for Rule 35 relief about that time. ⁶ The Government answered Krohn's motion near the end of April, Magee's and Kimes' motions in early June, and Gantt's motion on June 15. Those motions were still pending on July 17, when co-defendant McDonald filed a collateral attack on his sentence under 28 U.S.C. Sec. 2255. ⁷ The motions laid dormant over the next several months, while proceedings on McDonald's petition stretched into the end of November.

On February 5, 1982, the district court ruled on all of the pending Rule 35 motions and the section 2255 petition. Krohn's motion was granted, with a reduction in his term of imprisonment from five to three years. In explanation, the district court stated:

At the time the sentence was imposed, the court was under the impression that this defendant was involved in the drug offenses at a very high level. After carefully reviewing all of the information relative to all five of these defendants, the court is now convinced that it was in error regarding the involvement of Joseph E. Krohn. The court is now convinced that Krohn was involved more as an underling or simply an employee who performed delivery services for hire. While reprehensible, his conduct was not at the higher level which the court assumed at the time of sentencing. For these reasons, a reduction in sentence is appropriate.

Magee's sentence was also modified: the district court found her impecunious, and eliminated her $2000 fine. The remaining motions and petition were denied. On March 3, the Government asked the district court to reconsider its decision. It argued that because the district court failed to act within the 120-day time period established by Rule 35, it was without jurisdiction to reduce Krohn's and Magee's sentences; in the alternative, it argued that the Court's ten-month delay in ruling on the motions was unreasonable, and that excessive deferral of its decision had stripped the court of jurisdiction. The district court disagreed. In an order entered March 24, it explained that it "ha[d], at all times, attempted to consider all of these five defendants who were involved in the same criminal activities as a unit." For that reason, it had withheld decision of the Rule 35 motions until the section 2255 petition was ripe for judgment. The court concluded that the section 2255 proceedings had been completed as expeditiously as possible, "considering the delays requested both by McDonald's attorneys and by the government," and refused to withdraw its order. It did agree, however, to adopt the Government's suggestion that it reinstate Magee's fine, but delete the portion of its original judgment requiring that she stand committed until the fine is paid. The Government appeals the district court's decision that it had jurisdiction to reduce Krohn's sentence.

II.

Several years ago, it seemed that the dimensions of district court jurisdiction over Rule 35(b) motions were fairly well defined. This court had held, in a unanimous en banc decision, that

if a motion to reduce sentence is properly filed within the 120 days required by the statute, the district court retains jurisdiction for a reasonable time after the expiration of 120 days in those rare circumstances in which it is unable to decide the motion within the 120-day period.

United States v. Mendoza, 581 F.2d 88, 90 (5th Cir.1978) (en banc ), modifying, 565 F.2d 1285 (5th Cir.). In ruling that sentencing courts' jurisdiction can in certain circumstances exceed that expressly defined by the terms of Rule 35, the Court joined every other circuit court which had considered the issue, see Dodge v. Bennett, 335 F.2d 657 (1st Cir.1964); 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; United States v. Stollings, 516 F.2d 1287 (4th Cir.1975); United States v. Williams, 573 F.2d 527 (8th Cir.1978); 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).

The consensus within this Court and among the courts of appeals developed despite the acknowledgment that a literal reading of Rules 35(b) and 45(b) would lead to a contrary conclusion. Rule 35(b) provides in pertinent part that:

[t]he 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....

Rule 45(b) provides that "the court may not extend the time for taking any action under Rule [ ] ... 35 ...." Together, these Rules seemingly impose a firm outer limit on the period in which a district court is empowered to act. But prosaic operation of the Rules proved harsh and arbitrary. Meritorious motions timely filed fell by the wayside under the press of the docket. Defendants were forced to bear the consequences of circumstances wholly beyond their control. See Mendoza, 565 F.2d at 1290; accord, Williams, 573 F.2d at 528; Stollings, 516 F.2d at 1288-89; United States v. Ourso, 417 F.Supp. 113, 114 (E.D.La.1976). Mindful of Justice Black's admonition that "justice not be thwarted by those with too little imagination to see that procedural rules are not ends in themselves, but simply means to ... the achievement of equal justice for all," Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 1899, 12 L.Ed.2d 1012 (1964) (J. Black, dissenting), and mindful as well that the Rule was first adopted to alleviate the arbitrariness of the common-law "term of court" rule, ⁸ see Mendoza, 565 F.2d at 1290, the courts softened the Rule's inflexibility with an injection of equity.

The Government now suggests that Mendoza's gloss on the Rule was wiped away by a subsequent Supreme Court decision. United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 2242-43, 60 L.Ed.2d 805 (1979) contains a statement that:

Federal Rule Crim.Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended. ¹⁷

(emphasis added). The Government claims that the emphasized language firmly and clearly rejects the circuit courts' interpretation of Rule 35(b). An assessment of the strength of this argument requires an understanding of the context in which the statement in question was made.

The issue in Addonizio was whether a federal prisoner could collaterally attack his sentence on the ground that post-sentencing changes in the policies of the United States Parole Commission had prolonged his actual imprisonment beyond the period intended by the sentencing judge. The Supreme Court at the outset specifically limited its consideration to whether that type of allegation could support an invocation of the sentencing court's collateral review jurisdiction as defined by 28 U.S.C. Sec. 2255. After a review of the potential bases for section 2255 jurisdiction, the Court concluded that a claim that the sentencing judge erred in his assumptions about the future course of parole proceedings satisfied none of the established standards for collateral attack. It then shifted its focus to whether there existed reason for expanding the grounds of collateral attack to include claims based on frustration of the subjective intentions of...