U.S. v. Schafer, 83-6119

• Decision Date: 05 March 1984
• Docket Number: No. 83-6119,83-6119
• Citation: 726 F.2d 155
• Parties: UNITED STATES of America, Appellant, v. Alan H. SCHAFER, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 155

726 F.2d 155

UNITED STATES of America, Appellant, v. Alan H. SCHAFER, Appellee.

No. 83-6119.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 2, 1983.

Decided Jan. 26, 1984.

Rehearing and Rehearing En Banc Denied March 5, 1984.

Michael A. Stover, U.S. Parole Com'n, U.S. Dept. of Justice, Bethesda, Md. (Craig Donsanto, Nancy Stewart, Public Integrity Section, Crim. Div., U.S. Dept. of Justice; Henry Dargan McMaster, U.S. Atty., Columbia, S.C., Joseph A. Barry, Gen. Counsel, U.S. Parole Com'n, Washington, D.C., U.S. Dept. of Justice on brief), for appellant.

Charles Porter, Columbia, S.C. (Jane W. Trinkley, McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble, P.A., Columbia, S.C., on brief), for appellee.

Before WIDENER, HALL and SPROUSE, Circuit Judges.

K.K. HALL, Circuit Judge:

The United States appeals from a district court order reducing Alan H. Schafer's sentence from imprisonment of three years and six months to one year. We conclude that the district court was without jurisdiction to enter this order. We, therefore, vacate the order and remand the case with instructions to reinstate the original sentence.

I.

In June, 1980, Schafer was charged in a seventeen count indictment for bribing voters and submitting false and fraudulent absentee ballots through the mails during an election in Dillon County, South Carolina. Schafer pleaded guilty to one count of conspiracy, under 18 U.S.C. Sec. 371, and two counts of mail fraud, under 18 U.S.C. Sec. 1341. The remaining counts were dismissed.

On November 24, 1981, the district court fined Schafer $12,000 and sentenced him to three years and six months imprisonment. Schafer began serving his sentence on December 14, 1981. Later, on February 19, 1982, the United States Parole Commission issued a notice that Schafer would be required to serve eighteen months before he would be eligible for parole. Although Schafer's parole date could have been set as early as ten months, the Commission was swayed by his leadership role in the offense.

One hundred fifteen days after sentencing, on March 19, 1982, Schafer moved for reduction of sentence pursuant to Fed.R.Crim.P. 35(b). On April 28, after the 120-day limit in which the court may act on such a motion had expired, the court scheduled a hearing for May 14, 1982, and asked counsel to consider whether it was "appropriate for the Court to [reduce a sentence] merely because it may disagree with the Parole Commission's ruling on the presumptive parole date." The Government filed a response to Schafer's motion, arguing that "actions taken by the U.S. Parole Commission, which may not be in accord with the trial judge's expectations at the time of sentencing, do not provide a basis for collateral attack." At the hearing, the court abstained from ruling on Schafer's motion because of his "pending ... appeal ... from a presumptive parole date decision." The Parole Commission affirmed its presumptive parole decision of eighteen months on August 3, 1982.

The district court then entered an order reducing Schafer's sentence to one year. As a consequence of the court's order, Schafer was relieved from serving the six months remaining until his parole date. The court found that its delay in ruling on Schafer's motion was "reasonable" because a sentence reduction was needed to correct an "obvious unjust practice of the Parole Commission." ¹ This appeal by the Government followed.

II.

On appeal, the Government contends that the district court lost jurisdiction over the motion at issue when it delayed consideration of the motion until after the 120-day deadline in order to review the Parole Commission's decision. Additionally, the Government argues that the appropriate remedy in this case is to order reinstatement of the district court's original sentence. We agree with both of the Government's contentions.

Rule 35(b) states, in pertinent part, that "[t]he court may reduce a sentence within 120 days after the sentence is imposed,..." On its face the rule limits the time within which the trial court has power to act, however, this circuit and other circuits that have considered the issue have not applied the rule in a mechanical fashion. United States v. Kajevic, 711 F.2d 767 (7th Cir.1983); United States v. Krohn, 700 F.2d 1033 (5th Cir.1983); United States v. Stollings, 516 F.2d 1287 (4th Cir.1975).

In Stollings, the Fourth Circuit recognized that it is sometimes impractical for a judge to act within the 120-day period. In that case, upon missing the Rule 35(b) deadline by three days, the trial judge declined to rule on the defendant's motion because he believed he had lost jurisdiction. On appeal, this Court held that where delay is based upon reasonable grounds, a district judge may properly retain jurisdiction over a timely filed motion for reduction of sentence.

In Stollings, however, Judge Haynsworth specifically warned that the time limitation of Rule 35(b) has...