U.S. v. Taylor, 84-5875

• Decision Date: 19 July 1985
• Docket Number: No. 84-5875,84-5875
• Citation: 768 F.2d 114
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Larry Lee TAYLOR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 114

768 F.2d 114

UNITED STATES of America, Plaintiff-Appellant, v. Larry Lee TAYLOR, Defendant-Appellee.

No. 84-5875.

United States Court of Appeals Sixth Circuit.

Argued June 5, 1985.

Decided July 19, 1985.

Joe B. Brown, U.S. Atty., Nashville, Tenn., John Philip Williams, William Warren (argued), for plaintiff-appellant.

William Farmer, Federal Public Defender, Nashville, Tenn., Paula D. Godsey, Robert Tucker (argued), for defendant-appellee.

Before KENNEDY and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

CORNELIA G. KENNEDY, Circuit Judge.

The government appeals from the District Court's order reducing Taylor's sentence pursuant to Fed.R.Crim.P. 35. ¹ On February 23, 1982, Taylor entered a plea of guilty to a violation of 18 U.S.C. Sec. 113(b) assault with intent to commit a felony, and was sentenced by the District Court to a term of 7 1/2 years. On June 4, 1982, Taylor filed a Rule 35 motion to reduce sentence. On December 16, 1983, approximately 18 months after the motion was filed, the court entered its order, reducing Taylor's sentence to time served. ² The government concedes that the defendant did nothing to prolong the court's decision and, in fact, requested on two occasions that the court rule on his motion.

The government filed a motion for reconsideration, contending that the lapse of time had deprived the court of jurisdiction under Rule 35. The court held a hearing on January 13, 1984, at which time the District Judge stated,

for the record before ruling on the case that I acted deliberately in this case, that the offense was a serious offense. Of course, the sentence was a fairly harsh sentence, and I had no intention of granting a Rule 35 motion at the time that it was filed, that I fully intended for Mr. Taylor to stay in the institution for some time before I did rule on his Rule 35 motion, so I would have an opportunity to see how he handled his incarceration, so it was not--the delay on my part was a very intentional delay in action upon the motion. I would not have granted the motion within the 120 days.

On the other hand, if I had felt that I could not grant a Rule 35 motion with this kind of delay, I would not have imposed a seven-and-a-half year sentence in the first place.... [emphasis added]

The District Court thereupon took the motion to reconsider under advisement. After the government on July 13, 1984, called the court's attention to the fact that its motion for reconsideration had been under advisement for more than 30 days, the court denied the motion on August 21, 1984. This appeal followed.

I.

The government does not contend that the District Court did not retain jurisdiction to act on appellant's motion for a reasonable time after the 120-day time limit specified in Rule 35(b) had elapsed. ³ Rather, it argues that even if a district judge may extend consideration of a timely Rule 35(b) motion for a reasonable period beyond the 120-day limit, "the district court's delay in this case was unreasonable because of a delay of 18 months in and of itself was unreasonable." Moreover, it contends that, in holding appellee's Rule 35 motion in abeyance "so I would have an opportunity to see how he handled his incarceration," the District Judge usurped the role of the Parole Commission and committed an abuse of discretion.

Appellee responds that in considering the reasonableness of the additional time taken before an order reducing sentence was entered, the courts have declined to adopt a per se limit such as the government proposes. See United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981) ("[W]e see no merit in adopting appellants' suggestion that delays of over six months be decreed prima facie unreasonable. Reasonableness in this context must be evaluated in light of the policies supporting the time limitation and the reasons for the delay in each case.") & n. 3 (identifiable delays at issue were 42, 33 and 17 months); accord United States v. DeMier, 671 F.2d 1200, 1207 (8th Cir.1982). He also contends that although the District Judge did state that he wanted time to observe the appellee's deportment in prison before ruling on his motion, there is no indication that the judge was "sitting on" appellee's Rule 35 motion to use it as "a tool for overruling the Parole Commission after that body ... determines the likely release date of the criminal." Diggs v. United States, 740 F.2d 239, 246 (3d Cir.1984). Finally, the appellee argues that reduction of his sentence was warranted under Rule 35(a), based upon the District Judge's statement that he would not have imposed such a lengthy sentence if he did not believe that he could act as he did, since the sentence was based upon a misunderstanding and hence was imposed in an illegal manner.

Those circuits adhering to the rule that the district courts retain jurisdiction over timely filed Rule 35 motions for a reasonable period, see note 3 supra, have recognized as an important corollary thereto

that one purpose of the Rule's time limitation is to 'assure that the district court's power to reduce sentence will not be misused as a substitute for the consideration for parole by the Parole Board,' Stollings, 516 F.2d at 1289, by 'hold[ing] a timely motion for reduction of sentence in abeyance for months or years and then seek[ing] to grant it on the basis of defendant's conduct in prison,' [United States v.] Mendoza, 565 F.2d [1285] at 1290 [5th Cir.1978].

United States v. Krohn, 700 F.2d 1033, 1037 (5th Cir.1983); accord Diggs, 740 F.2d at 246-47 ("The 'reasonable time' contemplated ... is a reasonable time to decide the issue presented by the rule 35 motion, not a license to wait and reevaluate the sentencing decision in the light of subsequent developments."); ⁴ see also United States v. Dean, 752 F.2d 535, 544 (11th Cir.1985) (sentencing judge may not use Rule 35(a) as means to usurp authority of Parole Commission).

Even if, once a timely Rule 35(b) motion has been filed, a district court retains jurisdiction for a reasonable time to reduce sentence after the 120-day time limit specified in the rule has expired, no period of extension of whatever length is reasonable if it has been allowed by the court for a purpose in contravention of the rule. In the instant case, the District Judge clearly delayed acting on appellee's motion in order to take developments subsequent to sentencing into account, rather than to reconsider his original decision. Contrary to appellee's argument, it is not necessary that a district judge deliberately override a decision of the Parole Commission to impermissibly usurp the Commission's role. The facts of the instant case are precisely those that Judge Haynsworth suggested in United States v. Stollings, 516 F.2d 1287 (4th Cir.1975), would not justify the retention of jurisdiction by the district court:

The time limitation appears to have as its dual purpose the protection of the district court from continuing and successive importunities and to assure that the district court's power to reduce a sentence will not be misused as a substitute for the consideration of parole by the Parole Board. We need not speculate, however, that a judge would hold a timely motion for reduction of sentence in abeyance and unacted upon for months or years and then seek to grant it on the basis of the defendant's conduct in prison.

516 F.2d at 1289; see also Diggs, 740 F.2d at 246-47, and Krohn, 700 F.2d at 1037, quoted previously, and cases cited therein. Therefore, we hold that the District Court abused its discretion in granting appellant's Rule 35 motion under subsection (b).

Since we conclude that, in substituting its judgment for that of the Parole Commission, the District Court abused its discretion when it reduced appellant's sentence, we decline to consider whether any delay of a particular duration or longer in acting upon a Rule 35(b) motion is unreasonable per se. However, we do question whether an 18-month delay, such as that present in this case, could be considered reasonable under any set of circumstances that we have been able to imagine.

II.

The analysis above, however, does not fully resolve the case. There remains the question of whether the District Judge's statement--that if he had not believed that he could act as he ultimately did, he would not have imposed such a lengthy sentence--warranted modification of defendant's sentence under Rule 35(a). He urges that the instant case is equivalent to DeMier, supra, and United States v. Ruster, 712 F.2d 409 (9th Cir.1983), in which misinformation provided by a probation officer to the trial court prior to sentencing resulted in the imposition of a sentence requiring a longer minimum term of imprisonment prior to initial consideration for parole than was intended by the sentencing judge, and was deemed to have violated the defendant's due process rights in the sentencing process. ⁵

In United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), the Supreme Court held that post-sentencing changes in the guidelines of the Parole Commission, resulting in a longer mandatory minimum term of imprisonment than intended by the trial judge in imposing sentence, did not provide a basis for collateral attack on the sentence pursuant to 28 U.S.C. Sec. 2255. ⁶ The Court concluded that "there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge," 442 U.S. at 187, 99 S.Ct. at 2241, reasoning that a sentence imposed in reliance on assumptions concerning parole that are frustrated by subsequent actions of the Parole Commission, is not based upon " 'misinformation of a constitutional magnitude,' " 442 U.S. at 187, 99 S.Ct. at 2241 (quoting United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) ); and that "the judge has no enforceable...