Unpublished Disposition, 865 F.2d 266 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 865 F.2d 266 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellant,v.Francisco TAGALICOD, Jr., Defendant-Appellee.

No. 87-1219.

United States Court of Appeals, Ninth Circuit.

Submitted*  Sept. 1, 1988.Decided Dec. 15, 1988.

Before SKOPIL, SCHROEDER and ALARCON, Circuit Judges.


MEMORANDUM** 

The United States appeals the order reducing Francisco Tagalicod's sentence. The government contends that the district court erred in reducing Tagalicod's sentence sua sponte after the 120-day period allowed under Fed. R. Crim. P. 35(b) for such a reduction had elapsed. We reverse.

On February 28, 1986, 120 days after the district court received this court's mandate affirming the judgment, Tagalicod filed a timely motion for reduction of his sentence pursuant to Fed. R. Crim. P. 35(b). On April 10, 1986, the district court denied Tagalicod's motion.

However, fourteen months later, on June 23, 1987, the district court sua sponte reconsidered its earlier decision and reduced his sentence to time served. The court's decision to reconsider its earlier denial was based on its subsequent receipt of two letters--one from Tagalicod's wife, dated June 12, 1987, and the other from a clinical psychologist who was treating the Tagalicod children, dated March 30, 1987.

Rule 35(b) provided1  in part:

(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, 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 or probation revocation. The court shall determine the motion within a reasonable time.

Fed. R. Crim. P. 35(b) (emphasis added). The 120-day time limit is jurisdictional. United States v. Hetrick, 627 F.2d 1007, 1010-11 (9th Cir. 1980). Although a court may reduce the sentence beyond the 120-day limit when doing so pursuant to a motion filed within 120 days, Fed. R. Crim. P. 35(b); United States v. Rapp, 814 F.2d 1398, 1399 (9th Cir. 1987), it must act within 120 days when it is reducing the sentence sua sponte. See Fed. R. Crim. P. 35(b) advisory committee's note.

A Rule 35(b) motion must be filed within 120 days after the district court receives the mandate affirming judgment. See Rule 35(b). The timely filing of a Rule 35 motion does not give a district court jurisdiction over a subsequent untimely Rule 35 motion, Hetrick, 627 F.2d at 1011, even if the motion is styled as a motion for reconsideration. Id.

Here, Tagalicod's motion was timely but the letters were not. Even if the letters were construed as Rule 35 motions, the district court did not have jurisdiction to consider them. See id.

Nor can the jurisdictional defect in the district court's action be cured by treating its decision as a response to Taglicod's timely Rule 35 motion. Although a court may rule on a Rule 35 motion after 120 days, so long as the motion was made within 120 days of the sentence, it must do so within a "reasonable time." Fed. R. Crim. P. 35(b); Rapp, 814 F.2d at 1399. Whether a court has "determine [d] the motion within a reasonable time," Fed. R. Crim. P. 35(b), is evaluated in light of the policies supporting the time limit and the reasons for delay in a particular case. United States v. Smith, 650 F.2d 206, 209 (9th Cir. 1981). While the function of Rule 35(b) is to "allow the district court to decide if, on further reflection, the original sentence now seems unduly harsh," id. at 208 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)), the function of the 120-day limit is to protect judges from repeated importunities by those sentenced and to protect parole officials from usurpation of their responsibilities by the courts. Smith, 650 F.2d at 208.

The district court's action, twenty months after this court affirmed Tagalicod's sentence, and seventeen months after Tagalicod filed his motion, was clearly contrary to the two purposes behind Rule 35(b)'s time limit and thus not taken within a reasonable time. See Smith, 650 F.2d at 209.

The order of the district court reducing Tagalicod's sentence is reversed and the original sentence is ordered reinstated.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Rule 35(b) was later amended. The version set out here applies to offenses committed prior to November 1, 1987

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