United States v. Ourso
Decision Date | 11 June 1976 |
Docket Number | Crim. A. No. 75-451. |
Citation | 417 F. Supp. 113 |
Parties | UNITED STATES of America, Plaintiff, v. Robert J. OURSO, Jr., M.D., Defendant. |
Court | U.S. District Court — Eastern District of Louisiana |
Ronald A. Fonseca, Metairie, La., for the Government.
Arthur A. Lemann, III, Anthony A. Dingleman, New Orleans, La., for defendant.
A motion to reduce sentence in this case was made within 120 days after sentence was imposed, but after the defendant had begun to serve his sentence.
Rule 35, Federal Rules of Criminal Procedure, reads in part:
The 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, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.
Due to the pressure of trials, and the court's desire to have the probation officer obtain additional information for the court's consideration, the motion was not acted on within the statutory period of 120 days. Before considering the merits of the motion,1 the court must determine whether it has the authority to rule on the motion at this time.
In terms, the rule does not limit the court's power to reduce sentence to cases where the defendant has not yet begun to serve the sentence. Nor, in terms, does it permit or forbid reduction by the court after 120 days has elapsed regardless of when a motion to reduce was filed. And yet these issues have been the subject of considerable unresolved controversy. For reasons that follow, I conclude that the rule permits the court to consider a reduction in sentence that a defendant has begun to serve, and that the court may act after 120 days has elapsed provided a motion to reduce was filed within that time and considered with reasonable promptness by the court thereafter. This reading of the rule depends upon principle and authority.
The Supreme Court considered the issue of a change in a sentence that the defendant had begun serving in Affronti v. United States, 1955, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62. The defendant had begun to serve one sentence; he then filed a motion to suspend other consecutive sentences. The motion was denied on the basis that a district court has no power to suspend a sentence after the defendant has begun to serve a cumulative sentence composed of two or more consecutive sentences. In an opinion dealing solely with the power of the court to suspend a sentence and release a convict on probation, and without referring to Rule 35, the Supreme Court affirmed. The court apparently viewed the situation as not governed by Rule 35, which refers only to reduction of sentences. Its rationale was that there would be a conflict with the Probation Act if a district court could "place a convict on probation after he had begun the execution of his sentence." Reliance was placed on a case, decided before Rule 35 was adopted, United States v. Murray, 1927, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309.
The Court in Murray held that the Probation Act did not give courts power to grant probation as a matter of judicial clemency after the beginning of the service of sentence. It emphasized that unlimited power to grant probation "would confer very comprehensive power on the district judges in the exercise of what is very like that of executive clemency . . .." Rule 35, of course, places a time limit on the courts' power to grant probation. Murray was decided before the adoption of Rule 35; Affronti was decided after Rule 35 was adopted in 1946. In spite of its misplaced reliance on Murray, Affronti seems to control the situation where probation is being sought. Contra, United States v. Golphin, W.D.Pa.1973, 362 F.Supp. 698.2 Compare Zaffarano v. Blackwell, 5th Cir. 1967, 383 F.2d 719, 722.
There is a difference between a reduction in sentence and a suspended sentence or probation. The distinction is drawn in United States v. Ellenbogen, 2d Cir. 1968, 390 F.2d 537, as follows:
The same distinction is drawn in United States v. Robinson, D.Del., 344 F.Supp. 956, 958.
If the court could not reduce a sentence that the defendant had begun to serve, the time of his confinement would be immaterial. One day in the custody of the Attorney General would preclude relief as effectively as one hundred. If that were so, then a defendant who began to serve his sentence the day the court announced it could never obtain any review. Thus the "second chance" contemplated by Rule 35 would be completely denied him; that result would negate the purpose of the rule. Hence I conclude that the Court has power to review the sentence.
But there is a second legal problem posed by this case: The 120 day time limit set by Rule 35. This appears to refer to the time within which the court may act. Professor Robert Cipes, as author of Volume 8A, Moore's Federal Practice, ¶ 35.022 observes:
The period is not defined as the time within which the motion may be made, but is rather the time within which the court may act. Technically, this permits the court's failure to act upon a motion, to preclude relief. The present language of the Rule is satisfactory as a limitation upon the court's power to act sua sponte, but it should be rephrased to permit the court to act upon a motion of defendant as long as it is made within the same period. Despite the deficiency in the Rule, however, it appears that the latter...
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