908 F2d 978 United States v. Fenner

908 F.2d 978

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellant,
v.
James Charles FENNER, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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1

No. 89-10165.

2

United States Court of Appeals, Ninth Circuit.

Submitted March 15, 1990.*
Decided July 16, 1990.

3

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS,** Jr., District Judge.

4

MEMORANDUM***

5

The United States appeals the district court's order granting Fenner's Rule 35(b) motion for reduction of sentence. We affirm.

6

Fenner pled guilty to one count of possession with intent to distribute methamphetamine, and two counts of possession of firearms by a felon. The district court sentenced him on October 24, 1986, to a total of seventeen years imprisonment, fifteen years imprisonment on the methamphetamine possession count, two years imprisonment on the first firearm count, the term to run consecutively with the possession count, and two years imprisonment on the second firearms count, the term to run concurrently with the first two terms.

7

On February 17, 1987, Fenner timely moved under Rule 35(a) for correction of illegal sentence and under 35(b) for reduction of sentence. Fenner offered a number of reasons in support of this motion. He argued that methamphetamine is not a Schedule III controlled substance, that he suffers from post-traumatic stress disorder which requires psychiatric treatment not available at the institution to which he would be assigned, that the nationwide average prison sentence for the crime of which he was convicted is lower, that the Parole Commission will establish a release date significantly later than that which the court assumed would be established, and that he has familial considerations. On July 13, 1987, the district court denied appellee's Rule 35(a) motion, but ordered that appellee's Rule 35(b) motion be submitted, pending further information. The court stated that subsequent events might make modification of appellee's sentence appropriate under Rule 35(b), but that the record was not sufficiently established or certain to require modification at that time.

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8

On January 13, 1989, the court ordered the defendant's sentence reduced to twelve years, ten years for the possession count, two years for the first firearms count to run consecutively with the possession count, and two years for the second firearms count to run concurrently with the other two sentences. The court took this action based on information provided by the defendant, and without a hearing or additional motion papers provided by the parties. The United States filed a motion for reconsideration on January 18, 1989, which was denied on March 14, 1989. Timely notice of appeal was filed on April 10, 1989.

9

We review a district court's modification of sentence de novo. United States v. Heredia-Fernandez, 756 F.2d 1412, 1417 (9th Cir.), cert. denied, 474 U.S. 836 (1985). For offenses committed prior to November 1, 1987, a district court must make a decision on a timely filed Rule 35(b) motion within a reasonable time, however no specific limit is imposed. Fed.R.Crim.Pro.R. 35(b) (West Supp.1989). This codified the interpretation given by most courts to the previous language of the rule which had included a 120-day time limitation on the exercise of the district court's jurisdiction. See, e.g., United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981). The Advisory Committee Notes that reasonableness in the context of Rule 35(b) is determined under the same principles used by the above courts.

10

"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." Smith, 650 F.2d at 209. "The 120-day time limitation serves two policies: it protects judges against repeated importunities by those sentenced and it ensures that the court does not usurp the responsibilities of parole officials by retaining jurisdiction indefinitely and acting on the motion in light of the movant's conduct in prison." Id. at 208 (citing United States v. United States District Court, 509 F.2d 1352, 1356 n. 6 (9th Cir.), cert. denied, 421 U.S. 962 (1975)).

11

Therefore, the length of delay, though a factor, is not dispositive in determining the reasonableness of a delay in deciding a Rule 35(b) motion. See United States v. Rapp, 814 F.2d 1398, 1399 (9th Cir.1987); Smith, 650 F.2d at 209. Instead, whether the district court has delayed unreasonably in reaching a decision on such a motion turns on the factors on which the court bases its determination, i.e., whether the court is usurping the duties of the parole board. See Smith, 650 F.2d at 208. Where a district court's reduction of sentence has been struck down, the court has specifically based its decision to delay determination on a Rule 35(b) motion to see what the parole board sets as a release date, and then to decide based on that information. See, e.g. Rapp, 814 F.2d at 1399.

12

In the present case, the district court stated in his order reducing sentence that, "The court took the motion under submission, with leave to defendant to supply subsequent information. The subsequent information has been supplied. The court has reviewed the record of the case and the subsequent information. The court determines that a reduction should be made in defendant's sentence." The court did not hold a hearing on either the original Rule 35(b) motion, or upon submission of the subsequent information by the defendant.

13

The record does not clearly explain the basis for the district court's decision. While it does not show the reasons for the district judge's delay in making a determination on the defendant's Rule 35(b) motion, it also does not indicate that the district judge was attempting to second-guess the parole board or preempt its role. Under Rule 35(b), the district judge is not restricted in any temporal fashion. He must act within a reasonable time, a limitation intended to prevent the above-mentioned abuses by district judges and prisoners. The record before us does not demonstrate that the district judge intended to usurp the role of the prison authorities, and, likewise, the appellant has not made such a showing. There are clearly proper matters to base a delay in deciding a Rule 35(b) motion as it applies to offenses committed before November 1, 1987 which would require as long as 18 months. We cannot assume in the absence of any evidence that the district judge acted in an improper manner.

14

Therefore, the district court's order reducing defendant Fenner's sentence is AFFIRMED.

*

The panel unanimously finds that this case is suitable for decision without oral argument. Fed.R.App.Pro.R. 34(a); 9th Cir.R. 34-4

**

The Honorable Albert Lee Stephens, Jr., Chief Judge Emeritus, Central District of California, sitting by designation

***

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