U.S. v. Regan, 74-1559

• Citation: 503 F.2d 234
• Decision Date: 11 October 1974
• Docket Number: No. 74-1559,74-1559
• Parties: UNITED STATES of America, Petitioner, v. The Honorable John K. REGAN, United States District Judge, et al.,Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 234

503 F.2d 234

UNITED STATES of America, Petitioner,

v.

The Honorable John K. REGAN, United States District Judge,

et al.,Respondents.

No. 74-1559.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 13, 1974.

Decided Oct. 11, 1974.

Richard E. Coughlin, Asst. U.S. Atty., St. Louis, Mo., for petitioner.

Richard C. Witzel, St. Louis, Mo., for Tocco, and others.

Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.

PER CURIAM.

This mandamus proceeding presents to this court for the first time the question whether a district court may modify or alter a sentence more than 120 days after the judgment of conviction has become final by ordering that the sentence imposed be served pursuant to 18 U.S.C. 4208(a)(2). A review of the pertinent facts is necessary for an understanding of the issue.

On August 19, 1970, Frank James Tocco, Norris Lee Smith, Ralph Long, and Charles Richmond, named as respondents herein, here each convicted of bank robbery and conspiracy to commit bank robbery, in violation of 18 U.S.C. 2113(a) and 371. On September 18, 1970, all were sentenced to imprisonment of 20 years under the robbery count and concurrently to 5 years under the conspiracy count. These sentences were to be served pursuant to 18 U.S.C. 4202, which provides that a federal prisoner becomes eligible to be released on parole after serving one third of his sentence. ¹

On appeal, this court affirmed the convictions of all four men. United States v. Long, 449 F.2d 288 (8th Cir. 1971). Our mandates affirming the convictions of Smith, Long, and Richmond were filed in the district court on November 12, 1971, and the mandate affirming Tocco's conviction was filed on March 17, 1972, after the Supreme Court denied his petition for certiorari. 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972).

All four filed motions for reduction of sentence on July 5, 1972, pursuant to Fed.R.Crim.P. 35. Of the four motions, only the one filed by Tocco was within 120 days limit of Rule 35. Each motion was denied by the district court. ²

On June 21, 1974, Judge Regan entered orders 'modifying' the sentence of each of the four to include the provision that the sentence was to be served pursuant to 4208(a)(2). A federal prisoner serving a sentence under that subsection need not serve a minimum of one third of his sentence before becoming eligible for parole, but rather may be eligible for parole at any time the board of parole determines.

On July 22, 1974, the United States instituted this action for a writ of mandamus or prohibition pursuant to Fed.R.App.P. 21, seeking a writ directing Judge Regan to vacate his orders of June 21 modifying the sentences of the prisoner-respondents. Judge Regan filed an answer to the petition for mandamus stating in part:

Following the receipt of the renewed motions by defendants for reduction or modification of sentence, this respondent obtained information respecting the institutional records of defendants Tocco, Long, and Smith and it appeared therefrom that their records are such that each of them warrant parole consideration at an earlier date than that which is otherwise available to them under the sentences as originally imposed. Defendant Richmond has not yet entered upon service of the sentence imposed upon him for the reason that he is presently serving a sentence in the Missouri State Penitentiary for an unrelated offense.

Acting sua sponte, we appointed Richard C. Witzel, Esquire, to represent Tocco, Smith, Long, and Richmond. Mr. Witzel filed a comprehensive brief and presented an oral argument in behalf of his clients. We commend Mr. Witzel for his diligent efforts, which clearly demonstrate that he responsibly discharged the duties imposed upon him by virtue of the appointment.

At the outset we take note that at common law it was established that a court could not set aside or alter one of its judgments after the expiration of the term at which the judgment was entered, unless a statute provided otherwise. See, e.g., United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); United States v. Mayer, 235 U.S 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914); 12 Cyclopedia Fed.Proced. 50.108 et seq. (1965 rev.). Since the abrogation of any effect of the expiration of term of court, the provisions of Rule 35 have governed the power of a court in the federal judiciary 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).

Rule 35 expressly grants jurisdiction to a district court to correct an illegal sentence at any time, and authorizes the court to reduce a sentence or correct a sentence imposed in an illegal manner within 120 days after receipt by the court of the mandate of affirmance on appeal or within 120 days after disposition by the Supreme Court upholding the conviction.

Numerous courts have held that this 120 day limit is absolute, and may not be extended for any reason, since the federal rules of criminal procedure themselves provide that the time limit in Rule 35 cannot be enlarged. See Fed.R.Crim.P. 45(b). The time limit in Rule 35 is considered jurisdictional, and once the 120 day period has passed a court is without power to reduce a valid sentence pursuant to Rule 35. United States v. Mehrtens,494 F.2d 1172 (5th Cir. 1974); Peterson v. United States, 432 F.2d 545 (8th Cir. 1970); United States v. Gorman, 431 F.2d 633 (5th Cir. 1970); United States v. Ellenbogen, supra.

There is precedent holding that a district court may consider an untimely Rule 35 motion under certain circumstances. See Dodge v. Bennett, 335 F.2d 657 (1st Cir. 1964). Unlike this proceeding, however, in that case there was a good faith attempt by the prisoner to comply with the prescribed time limit, but for reasons wholly beyond his control and attributable to governmental negligence, the Rule 35 motion did not timely reach the court. We therefore do not consider the holding of that case as apposite here, since the instant facts do not evince the aggravated and unjust circumstances outlined in the Dodge opinion. There are no circumstances on this record justifying a holding that the district court should act upon these grossly untimely motions in the interests of equity.

The four prisoner-respondents, however, argue that even if the 120 day period is an absolute jurisdictional limit to the district court's power to reduce sentence under Rule 35, the district court could amend their sentences beyond the 120 day period because the addition of a 4208(a)(2) parole provision is not truly a 'reduction' of sentence, but rather only a 'modification' and not within the ambit of Rule 35. They maintain that no reduction of sentence is involved here and Rule 35 therefore does not apply because they will still be within the custody of the Attorney General on their sentences even if they are paroled.

Initially, we note that the prisoner-respondents' contention that the June 21 orders were not issued pursuant to Rule 35 is apparently contrary to the intention of the author of those orders. Judge Regan, in his answer to the application for the writ of mandamus, stated that

this respondent determined in view of the length of the original sentences to reconsider his previous orders overruling the motions for reduction or modification of sentences by authorizing the same to be served under the provisions of Section 4208(a)(2) . . ..

This language indicates that Judge Regan believed that he was acting upon Rule 35 motions to reduce sentence and strongly suggests that he considered himself to be in effect reducing the sentences of the four men.

In addition, those cases which have previously ruled on this question have held that the addition of a 4208(a)(2) parole provision to a sentence is a 'reduction' in sentence. See United States v. Bryan, 498 F.2d 366 (5th Cir. 1974); Banks v. United States, 365 F.Supp. 594 (N.D.Miss.1973); United States v. Rush, 60 F.R.D. 211 (D.Minn. 1973). Although a prisoner is still technically within the custody of the Attorney General while on parole, nevertheless the effect of adding the 4208(a)(2) parole provision to a sentence is to provide the opportunity for the prisoner to be released from imprisonment earlier than was possible under the original sentence being served pursuant to 18 U.S.C....