United States v. Hamilton

Decision Date25 March 1975
Docket NumberCrim. A. No. 23181-2-D-3.
Citation391 F. Supp. 1090
PartiesUNITED STATES of America, Plaintiff, v. Lloyd Theodore HAMILTON, Defendant.
CourtU.S. District Court — Western District of Missouri

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

Lloyd Theodore Hamilton, pro se.

ORDER DENYING DEFENDANT'S "MOTION TO RECONSIDER `MOTION FOR AMENDED SENTENCE' UNDER RULE 35" WITHOUT PREJUDICE TO THE FILING OF A MOTION UNDER SECTION 2255, TITLE 28, UNITED STATES CODE

WILLIAM H. BECKER, Chief Judge.

On December 15, 1970, a jury found the defendant guilty of conspiring to perpetrate and wilfully and unlawfully aiding and abetting the armed robbery of a federally insured bank, all in violation of Sections 2, 371 and 2113, Title 18, United States Code. Defendant was sentenced on those convictions on January 4, 1971, by the late Honorable Richard M. Duncan, Senior United States District Judge, to concurrent terms of five and twenty years imprisonment. Defendant appealed from the judgments of conviction and imposition of sentence to the United States Court of Appeals for the Eighth Circuit, which affirmed the defendant's conviction on December 20, 1971, in United States v. Hamilton, 452 F.2d 472 (8th Cir. 1971).1

On July 8, 1974, the defendant filed a pro se document entitled "Motion for Amended Sentence," therein contending that the sentencing Judge erroneously relied on an alleged incorrect portion of the presentence report concerning defendant's ownership of two expensive automobiles. In that motion the defendant requested that his sentence be modified to an "indeterminate sentence" under the provisions of Section 4208(a)(2), Title 18, United States Code. The pro se motion was assigned to the late Judge Duncan and was treated by Judge Duncan as a pro se motion for reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure. On July 8, 1974, Judge Duncan entered an order denying the defendant's pro se motion under Rule 35.

On July 31, 1974, defendant filed another pro se document entitled "Motion to Reconsider `Motion for Amended Sentence' Under Rule 35." Judge Duncan died on August 1, 1974. Thereafter, the defendant's pro se motion to reconsider his previously filed motion under Rule 35 was referred to the undersigned District Judge for further proceedings.

After referral of the defendant's pro se motion to reconsider, the undersigned discovered that a portion of the pleading file with respect to the defendant's post-conviction motions had been misplaced. After a diligent search by the Clerk of this Court, it was determined that the misplaced portion of the file could not be located. The file was then reconstructed from photocopies and carbon copies of the misplaced pleadings held by counsel for the Government. Because of this misplacement of a portion of the pleading file, the processing of the motion under consideration was delayed.

In his "Motion to Reconsider `Motion for Amended Sentence' Under Rule 35," defendant requests that ". . . the 20-year sentence he is presently serving for convictions of Title 18 U.S.C. §§ 2, 371, and 2113(a)(b), be changed so that it is indeterminate under the provisions of Title 18, U.S.C. § 4208(a)(2), instead of a straight sentence." Based on documents subsequently filed by the defendant in this case, it appears that the defendant claims that the sentencing Judge erroneously relied on certain allegedly incorrect information in the presentence report indicating the defendant's alleged outright ownership of two expensive automobiles.

On August 28, 1974, an order was entered by the undersigned directing the Government to respond to defendant's motion to reconsider. Following the filing of various motions for extensions of time and the granting thereof, counsel for the Government filed herein on January 24, 1975, a response to this Court's order dated August 28, 1974. In his response, counsel for the Government states, in part, as follows:

"Judge Duncan did in fact refer to portions of the presentence report in which it appeared that defendant owned such automobiles free and clear (Tr. 6). The court's reference to those allegations was in response to defense counsel's plea that sentence be imposed under Title II of the Narcotic Addict Rehabilitation Act. The court's purpose in pointing out that defendant owned two expensive cars free and clear was to point out that those facts belied counsel's belief that defendant was a narcotic addict who was less than fully responsible for his conduct. The court felt that one who had acquired so much expensive hard goods and was a bank robber did not need medical treatment. The record makes clear, however, that the court regarded the bank robbery itself as sufficient to justify the twenty year sentence."

As part of his response, counsel for the Government attached a copy of the transcript of the sentencing proceedings on January 4, 1971.

On February 5, 1975, defendant filed herein his pro se suggestions in opposition to the Government's response, therein stating, in part, that "the fact that the court did mention that the defendant owned two expensive cars free and clear taken from the presentence report unabled (sic) the defendant to fall under the guide lines of maybe receiving a sentence that falls under Title II of the Narcotic Addict Rehabilitation Act." Defendant further states that the information in the presentence report regarding defendant's alleged outright ownership of the two expensive automobiles is "erroneous."

The defendant's "Motion to Reconsider `Motion for Amended Sentence' Under Rule 35" will be considered as (1) a motion under Rule 35 to correct a legal sentence allegedly imposed in an illegal manner; (2) a motion under Rule 35 to correct an illegal sentence; (3) a motion under Rule 35 to reduce a legal sentence; or (4) a motion to vacate, set aside or correct a sentence under Section 2255, Title 28, United States Code.

The time limits for filing a motion to correct a legal sentence allegedly imposed in an illegal manner or a motion for reduction of a legal sentence under Rule 35 are as follows:

"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 of sentence. The court may reduce a sentence within 120 days after the sentence is imposed . . .."

Conversely, a motion to correct an illegal sentence under Rule 35 or a motion to vacate, set aside or correct a sentence under Section 2255, Title 28, United States Code, may be made at "any time." Rule 35, Federal Rules of Criminal Procedure; 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 430, 82 S. Ct. 468, 7 L.Ed.2d 417, 422 (1962).

Treated as either a motion to correct a sentence allegedly imposed in an illegal manner2 or as a motion to reduce a legal sentence under Rule 35,3 defendant's "Motion to Reconsider `Motion for Amended Sentence' Under Rule 35" is untimely. The defendant was sentenced on January 4, 1971, and the motion under consideration herein was filed on July 31, 1974. Even if the "Motion to Reconsider `Motion for Amended Sentence' Under Rule 35" is treated as relating back to the defendant's original "Motion for Amended Sentence" under Rule 35, it would nevertheless be untimely because the "Motion for Amended Sentence" was filed and denied on July 8, 1974, which is more than 120 days from the date of the sentence.

This Court is without jurisdiction to consider an untimely motion under Rule 35. United States v. Regan, 503 F.2d 234, 237 (8th Cir. 1974); 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. Granville, 456 F.2d 1073 (5th Cir. 1972); United States v. Gorman, 431 F.2d 632 (5th Cir. 1970). In addition, the time limits within which a motion may be filed under Rule 35 cannot be enlarged or extended for any reason. Rule 45(b), Federal Rules of Criminal Procedure;4 United States v. Robinson, 361 U.S. 220, 224-225, 80 S. Ct. 282, 4 L.Ed.2d 259, 262-263 (1960); accord, Peterson v. United States, 432 F.2d 545, 546 (8th Cir. 1970).

For these reasons, the defendant's "Motion to Reconsider `Motion for Amended Sentence' Under Rule 35," treated as either a motion to correct a sentence imposed in an illegal manner or as a motion to reduce sentence under Rule 35, must be denied.

Treated as either a motion to correct an illegal sentence under Rule 35 or as a motion to vacate, set aside or correct a sentence under Section 2255, Title 28, United States Code, the defendant's "Motion to Reconsider `Motion for Amended Sentence' Under Rule 35" is timely but without merit. In the context of Rule 35, the record does not disclose nor does the defendant contend that the sentence in this case is illegal. Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417, 422 (1962). With respect to Section 2255, Title 28, United States Code, it is apparent that the sentence is not in excess of the maximum authorized by law. The defendant was sentenced to a concurrent term of five years imprisonment for having violated Section 371, Title 18, United States Code. That Section provides that a violator thereof ". . . shall be fined not more than $10,000 or imprisoned not more than five years, or both." The defendant was also sentenced to a concurrent term of twenty years imprisonment for having violated Sections 2113(a) and 2113(d), Title 18, United States Code. Those sections respectively provide that a violator thereof shall ". . . be fined not more than $5,000 or imprisoned not more than twenty years, or both," or ". . . fined not more than $10,000 or imprisoned not more than twenty-five years, or both." The twenty-year sentence imposed upon the defendant was clearly within the statutory limits.

Further, the sentence in this case is not otherwise subject to collateral attack under Section 2255, Title 28, United States Code, for...

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3 cases
  • U.S. v. James
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 Marzo 1976
    ...510 F.2d 1335 (1975); Owens v. United States, M.D.Pa., 383 F.Supp. 780 (1974), affirmed, 3 Cir., 515 F.2d 507; United States v. Hamilton, W.D.Mo. (1975), 391 F.Supp. 1090. We mention this only to make clear that we are not passing on the retroactive question here. The Dorszynski case was de......
  • United States v. Cotton, 83-CR-17.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 28 Noviembre 1983
    ...sentence is lawful, the Court is powerless to act. United States v. Whitley, 473 F.Supp. 23, 24 (E.D.Mich.1979); United States v. Hamilton, 391 F.Supp. 1090, 1093 (W.D.Mo.1975). For example, had defendant in this case filed his motion just six days later than he did, the 120-day limitation ......
  • US v. BEN M. HOGAN CO., INC., LR-CR-84-1.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 14 Enero 1988
    ...35 motion based upon the fact that no new information or material facts or unanticipated matter had been presented. United States v. Hamilton, 391 F.Supp. 1090 (W.D.Mo.1975); United States v. Stromberg, 179 F.Supp. 278 (S.D.N.Y.1959). Nevertheless, even considering the recently submitted in......

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