United States v. Santiago Mario Mendoza

Before GOLDBERG MORGAN, Cir cuit Judges, *, and WYZANSKI Judge.

GOLDBERG, Circuit Judge: question presented The sole appeal is always whether district court loses

reduction of sentence under Rule 35 of Federal Rules of Criminal Procedure at the expiration 120 day period provided by the rule. The issue is at the same intriguing troubling, both part be cause, as the able Assistant United States candidly Attorney argu remarked at' oral ment, the words statute are so clear ly favor, government’s are yet there many so supporting the defendant’s position. agree with the rationale of rejecting those cases a literal reading of the Massachusetts, sitting by designation. Judge *Senior District of the District of recognized a Rule 35 motion is The court injustice that when rule and hold obvious early in the 120 sufficiently this result filed and even opportunity for the a reasonable noted that if it had had provide to act upon the motion motion, and rule court to consider it would granted have inability the failure or days, within reduction in sentence. The defendant now within judge to act on the motion the trial appeals. judge not the trial period does divest (Purported) II. A Defense of Literalism Jurisdiction is retained jurisdiction. of The language not, of the rule does except needs time judge reasonably so asjthe by necessary implication, deal with the time upon act the motion. consider and within which a defendant must file for a Background

I. Factual Instead, reduction of sentence. it specifi cally refers to the time within which the possess- was convicted of The defendant may district court act: “The may distribute, marijuana with intent ing reduce a sentence within days . . .” 841(a)(1), and was sentenced to § U.S.C. This reading is 45(b), reinforced Rule special with years imprisonment, three provides which that the district court may years. three We affirmed term of parole enlarge period for action on a mo unpublished opinion, in an the conviction specified rules, tion under certain including issuing September mandate our reason, Rule 35. For this the time later, limita days on October Fifty tion is often referred to jurisdictional, as 35 motion for reduc- filed a Rule defendant and this Circuit has held that a district tion of sentence. court does not have to mbdify a pertinent part: provides sentence when the Rule 35 motion is filed may reduce a sentence within days after 120 elapsed, have United States days imposed, after the sentence is or Flores, (5th 1975); Cir. days receipt by the court within 120 after v. Bryan, (5th 498 F.2d 366 upon affirmance a mandate issued of 1974); Granville, Cir. United States v. appeal judgment dismissal (5th F.2d 1972), at least barring special circumstances, cf. United States v. on the Defendant’s motion was filed 50th Mehrtens, (5th Cir.), day period the 120 initiated day of denied, cert. 95 S.Ct. affirming his issuance of our mandate con- L.Ed.2d 145 The 1966 amendment viction, well within the time in which the to Rule which increased the relevant the rule. Due to may trial court act under period from 60 days, to 120 was accom beyond of factors the defend- a combination panied by Advisory Committee Note control, including in the re- ant’s suggests which-also that the 120 ceipt of the United States Probation Of- was upon intended as a limit the time with report particularly heavy and a trial fice’s may in which the court act.1 schedule, the trial court failed to act on the apparently Given the clear day period. language motion within the 120 After law, considering the rule and the it is case understandable that the dis- judge trict trial court concluded that because the 120 conclude that he lacked jurisdic- expired, had lacked to act defendant’s motion. Indeed, pass Supreme tion to on the defendant’s motion. Court has held that Wright quotes 1. Professor from the fendant has been committed to an institution sentencing court, Committee’s Note: at distance from the delays inspec- involved in institutional mail The second sentence has been amended procedures required and the time to con- increase the time within which the court relatives, result tact friends and counsel 60-day act from 60 to 120 60-day period passing before the court frequently is too short to enable the able to consider case. evidence, obtain and file the Wright, 2 C. Federal Practice and Procedure argument support information and a re- (1969) (emphasis supplied). Especially 587 at 572 § in sentence. where a de- duction requirements rigidly. limit gen- to the commentators have limits there are erally agreed interpretation. with penal statutes when C. construction strict Wright, Federal Practice uncertainty in the and Procedure: ambiguity or is no there (1969); Moore, Criminal at 573 8A J. statute. Hud- § structure language 35.02(2), at 814, 831, Federal Practice 35-36. The States, 415 U.S. v. United dleston issue, however, yet has not been decided (1974). In the 39 L.Ed.2d 94 S.Ct. this Circuit. ap- the rule language of case instant uncer- ambiguous nor neither to be pears begin inquiry by examining our own power to judge’s trial restricting the tain Supreme day period. the 120 which, faced with statutes or rules if read produced have unreasonable literally, would revisited —Does The literal III. unjust cognizant results. We do so says? mean what it the rule parameters the fact that the of this area of symmet- are neither consistent nor the law dispositive lan seemingly the Despite g., compare rical. E. Fallen v. United which every circuit court guage of States, 139, 1689, 378 U.S. 84 S.Ct. 12 circumstances sim 35 in examined Rule has (1964), 760 with Berman v. L.Ed.2d United that when has concluded those at bar ilar to States, 530, 1895, 378 84 S.Ct. 12 U.S. 120-day period, is filed within a motion L.Ed.2d 1012 120 in or beyond extends judge the trial reasonable to allow der Holy Trinity In the celebrated v. the motion. United States to act on case, Holy Trinity Rector of Church Church (4th 1975); Cir. Stollings, 516 457, States, 511, v. United 143 U.S. 12 S.Ct. v. United States States United (1892), Supreme 36 L.Ed. 226 Court held denied, Cir.), Court, (9th cert. 509 F.2d 1352 literal of the that if a construction words of 1949, 962, 44 L.Ed.2d 448 95 421 U.S. S.Ct. absurd, unjust, would lead to an a statute Janiec, v. 505 F.2d (1975); United States result, the statute must or unintended be denied, 1974), cert. (3d 983 Cir. that result. Id. at construed so as avoid 1332, 43 (1975); United L.Ed.2d 427 95 S.Ct. 511. The church had made S.Ct. (9th Polizzi, 896 n. 73 500 F.2d pastor, States English pursuant contract with an denied, 1974), cert. U.S. Cir. pastor which the sailed to the United Leyvas v. 42 L.Ed.2d 820 (1975); S.Ct. and entered into service for the 1967); States, (9th Cir. 371 F.2d United church. The United States sued the church (1st Bennett, Dodge penalties prescribed by an alien labor home, 1964). judge then district Closer that the law. Court conceded contract Ourso, B. Rubin in United States literal of the Alvin was within the stat (E.D.La.1976), importation followed F.Supp. ute which barred the of alien labor, that it would concluding yet Congress concluded that could not these decisions prohibit and inconsistent with the have intended the absurd result of unreasonable be of, ing hiring English pastor.2 the time a church from interpret the rule to purpose down in the street in a fit. The same com- 2. As the Court remarked: accepts ruling, by mon 'sense cited Plow- a sensible construc- All laws should receive den, II., that the statute of 1 Edw. terms should be so limited tion. General prisoner prison enacts that a who breaks injustice, application their as not to lead to guilty felony, shall be of does not extend to a consequence. oppression, an absurd It prisoner prison out when who breaks is therefore, presumed always, that will fire, hanged ‘for he is not to be he because exceptions legislature to its lan- intended stay would not to be burnt.’ guage results of this char- which would avoid 512, quoting 143 U.S. at 12 S.Ct. at in such cases acter. The reason the law Kirby, States v. 7 Wall. L.Ed. 278 prevail The common over its letter. should (1869). And while the common sense of man judgment approves men- sense of man changed regard therapeu- Puffendorf, Bolognian have with to the law tioned bleeding, that same common sense tic value blood in ‘that whoever drew which enacted against allowing punished rebels the defendant to burn with the ut- the streets should be government hung up surgeon severity,’ on the because the most did not extend to reading opened person literal of the statute. vein of a fell who procedural rules are Holy themselves, in the not ends in enunciated principles continued simply have evinced means to an case end: Trinity Church achieve- jurispru Supreme Court’s vitality equal justice ment of for all. I have no Co., 383 Loan Perry v. Commerce In dence. that the disposition doubt of this case would 852, 15 (1966), L.Ed.2d 392, 86 S.Ct. very congenial have been to the climate of the Court stated: confess, Baron Parke’s day. however, I course, persuasive is, no more There I am uncomfortable with the notion than of a statute purpose evidence that courts exist to fashion preserve legislature under- which the words rules inviolate instead of to apply those to its wishes. Of- give expression took to justice litigants.” rules to do Id. at in and of are sufficient these words ten at 1899. purpose to determine themselves The situation confronting Supreme have In such cases we legislation. States, in Fallen supra, v. United meaning. When that plain their followed similar to that in the case at bar. There re- absurd or futile meaning has led to the clerk of the district court received the be- sults, however, this Court has looked defendant’s notice appeal a few days of the act. purpose to the yond the words after the 10 specified in Rule however, even when Frequently, 37(a).3 was caused a combina produce absurd meaning did plain tion of factors the defendant’s con unreasonable one merely an results but trol. The defendant became sick immedi policy variance with ‘plainly at ately after sentencing, during much of this Court has fol- a whole’ as legislation dhy period permitted the ten he was neither liter- rather than the purpose, lowed that opportunity to see visitors nor afforded the al words. attorney might to secure another who have 857, 400, quoting United at Id. at S.Ct. advised him sooner of the require rule’s Ass’ns, Trucking v. American States Perhaps importantly, ments. more mail 1059, 534, 543, 84 L.Ed. 1345 60 S.Ct. U.S. pickups prison only at the occurred twice a Accord, v. Shirey, States (1940). United 746, week, 3 L.Ed.2d 789 appeal and his notice of on a S.Ct. mailed 359 U.S. Tuesday picked was not at the up prison until Friday. Appeals The Court of had par are of construction These rules 37(a) that, irrespective read Rule to mean interpreting in the ticularly appropriate delay, of the reason for it lost Procedure. The Federal Rules of Criminal be, appeal to hear the after the not, were not intended to Rules are and meaning expired. Supreme rejected with an inflexible rigid code this v. the circumstances. Fallen irrespective of reading literal the petition rule: “Since States, S.Ct. United circumstances, er did all he could under the (1964). Rule 2 admon 1689, 12 L.Ed.2d 760 we decline to read the Rules so rigidly as to to “[tjhese rules are intended ishes that appeal bar a determination of his on the every just the determination provide for merits.” 378 U.S. at 84 S.Ct. at 1692. They shall be con proceeding. criminal Likewise, we should not follow the simplicity procedure, in secure strued to reading of Rule 35 in literal the case at bar elimina and the in administration fairness consequences when the would be so devas unjustifiable expense delay.” and tatingly arbitrarily and fortuitous. See remarked in his dissent to As Justice Black Stollings, supra, United States v. in summary affirmance Berman the Court’s at 1288. The lesson unmistakable of the States, v. S.Ct. Supreme rulings Holy Trinity Court’s in (1964),“The Criminal Rules L.Ed.2d 1012 Church, Perry Co., v. Commerce Loan and purpose of with the declared were framed not be thwarted ensuring justice that States, supra, Fallen v. United is that we not, not, slavishly must need indeed follow imagination little to see that with too those appealed 37(a) provides the order from . . .and that Fed.R.Crim.Pro. that an 3. Rule “by filing appeal appeal is taken the clerk of the a defendant be taken with “[a]n judgement appeal entry of the district court a notice of . . within 10 after to file prepare defendant and his the the rule when that language of the literal to for the trial court then con- through looking glass motion and leads us time, result. Here it. At sider decide the same unjust and unreasonable and on the 50th his motion filed that the matter will be com- defendant rule ensures two months for the than leaving more day, specified within the time pletely resolved and rule on his to consider court district period. period. The within the 120 motion however, the In this case drafters’ to rule the motion failure court’s lower fine caused failure to tune the rule these wholly beyond convicted time was specifi More policies become discordant. the Fourth control. As Circuit defendant’s employed effectuate the cally, the means Stollings, su- in United States remarked secondary policies favoring speedy de when flows 516 F.2d at pra, of the frustrated the termination motion absence, preoccupa- incapacity, from providing a de primary purpose rule’s consequences judge, the trial tion of timely files in a manner a fair fendant who upon defendant. not be visited should opportunity to have his motion reviewed. rule could not drafters with plainly This at variance result unjust result reached intended the have whole. policy Perry of the rule taken as a initial was proceedings below. Co., supra, Loan 383 U.S. at Commerce arbitrary often remedy ly adopted 852. The did all he that a trial court lost law rule common circumstances, could under the and would sentence reduction to act injustice be a read the rule gross unless rising with the motions punishes him because of manner before end the motion made Fallen, trial sentencing judge’s inadvertence. See su place. took in which the term within pra, which the 378 U.S. at 84 S.Ct. While Under greatly had to filed varied de with agree government we must in which the cases upon the order pending the time limitation district tried, defendants and some did were was intended to be limitation on trial prepare file their enough have time to act, agree judge’s power to we cannot Stollings, motions. See United contemplated the result reached below was 35 represents F.2d Rule supra, 516 at 1289. the or We that Federal intended. reiterate every attempt to that ensure an not, Rules Procedure are and of Criminal his time to submit motion and has sufficient be, rigid were intended to a code with not fairly considered and every motion is that meaning irrespective an inflexible by the district court. decided important circumstances. Timeliness is to limitation in the The 120 time jurisprudence, ehronometry our must a and narrower set rule reflects different jus absolute over given be dominance ap important purpose Its policies. most tice, fairness, and common sense. Guided protection to be the the district pears in principles Holy wise enunciated impor successive continuing from and court Church, Fallen, Perry supra, and we Trinity impor by the defendant. Of lesser tunities Rule 35 not be read hold that should so tance, that the time limitation assures to foreclose consideration literally as a motion timely court cannot hold district court of the defendant’s motion. district for abeyance reduction of sentence for years grant seek it and then to months Tuning the to Harmonize Rule IV. Fine conduct in the basis the defendant’s on Discordant Policies Id. The drafters of the rule prison. See intended that reconsidera apparently cases which have considered prior within of sentences be made a reason tion day period this have all read the issue original period short of time after the ably See, e. filing. g., limitation on to be a imposed. sentence supra; United Stollings, United States Court, su of cases the rhle v. United States majority In the vast ; Bennett, According supra. pra Dodge one On the policies. these harmonizes courts, is filed with- when motion to those hand, ample allows time period 120 day day period tained within the 120 as contem- jurisdiction extends period, stated time, by the Rule. At same plated reason- least for such period at beyond motion will still be con- ensures that pass to on necessary as able when, through no fault of de- sidered motion. fendant’s, the trial court is unable to rule in broadly. 35 this read Rule do not We interpretation, time. Under our rule a de protect would interpretation Such prevent to successive motions will continue until filing his motion delayed who fendant day period, prohibi- the 120 and our beyond sentencing or affirm day after the 119th jurisdiction beyond retention of tion of the conviction, when such ance necessary period reasonably pre- should to for the motion impossible make it remote, possibility, however of a vent the day period con the 120 within be decided usurping court the function of the district may de rule. While we by the templated by holding Board the motion in Parole of the rule interpretation literal from a part abeyance pending examination of the de- to effectuate its injustice and prevent to in prison. fendant’s conduct Our decision plenary. power our is not purposes, overall not constitute an invitation to district does disregard one of are not free We deciding judges procrastinate Rather, we underlying the rule. policies motions, we are confident the rule in a interpret attempt must judges faithfully attempt will to rule on closely effectuates all which most manner day period motions within the 120 as these including those reflected policies, of its provided for in Rule. time limitation. rule’s only remaining issue is to define limita- day period into a Turning the 120 filing. reasonable Here the de- unnecessarily frustrate filing would on days filed his motion 50 into the fendant that consideration intent the drafters’ period, leaving days limitation for the be limited to the motions reduction sentence court to consider the motion. We district imposed the sentence days after filing have no doubt was suffi- Instead, hold that we appeal. affirmed ciently timely provide ample the court beyond court retains a district rule in circumstanc- opportunity to normal a Rule 35 day period to rule on es, and we therefore conclude that the dis- sufficiently is filed the motion if have retained trict court should provide a reasonable in that early and decided the motion. for the court to consider opportunity days.4 within 120 the motion rule Ordinarily, we would be loath to say the 120 be retained Jurisdiction more than that 50 a timely constituted only for so as district however, filing. recognize, that our time to consider and reasonably needs interpretation of Rule 35 leaves open the the motion. upon act litigation of future possibility over what interpretation reasonably period This of Rule 35 constitutes a reasonable for filing. litigation conflicting poli- merely its otherwise frustrate fur accommodates Such attempt to file the rule’s encourages speedy cies. It the defendant ther ensure great determination sentence reduction mo expeditiously his motion so that tions, any compensating without enter- advan- majority of cases the motion will be holding always jurisdiction 4. This is consistent with our decision in district court loses after 120 Flores, supra, days, only jurisdiction United States v. 507 F.2d 229 that the court loses after (5th 1975). days There the defendant filed mo Cir. 120 when no motion is filed within that period. Mehrtens, six and tions to reduce sentence ten months But cf. United States v. su- original sentencing. pra We held that (raising possibility exceptional after cir- jurisdic district court . . lost all contributing delayed filing “[t]he cumstances modify appellant’s days tion to sentence 120 extending defendant’s motion necessitate Thus, original sentencing. after the . . . during juris- the time which the court retains since the district court had no diction). Here we are faced with a situation in relief, requested jurisdic grant we have no day which the motion was filed within the 120 appeal.” holding Id. at 230. This tion of this period. proposition for the does not stand

1292 recognize that for we within certain

tages, adopted provide rule here should ample limits, period time that is chosen will be time for the defendant to frame and file his Furthermore, arbitrary. essentially we be motion, remaining and the days 60 should Rule 35 movants be much lieve that will be more than sufficient to allow the district period about the actual cho less concerned pass court to consider and on that motion.5 having precise sen than with notice holding Our way implies in no that mo they within which can file and still tions submitted after 60 days should not be ruling this if the protected district entertained. We are confident that district their fails to decide motion within 120 judges will every make effort to rule reasons, days. specification For these on such motions within day period. the 120 motions will which be con merely We circumstances, rule that in such timely is warranted. In the exer sidered the movant risks the possibility that powers supervisory cise of the over the dis court will fail to rule on the motion within trict courts inherent in federal courts of days 120 jurisdiction. thereafter lose Buy Co., appeals, see La Howes Leather Moreover, we do not intend draw a hard 249, 259-60, S.Ct. 1 L.Ed.2d and fast rule and do possi not foreclose the Chiantese, United States v. (1957); bility that in some special cases circum (5th 1977) (en banc); F.2d Cir. might stances exist which would allow the Alabama, Newman v. 72 n. F.2d district court to retain after 120 (5th 1975) (en banc) (Gewin, J., Cir. dissent days to rule on a motion filed after Bailey, United ing); Cf., Fallen, United supra; States v. (5th 1973) (en banc) (Goldberg, 520-21 Mehrtens, States (5th 494 F.2d 1172 Cir.), J., concurring part and dissenting in denied, cert. part), we hold that when a sentence reduc L.Ed.2d 145 the 60th motion is filed on or before sentencing or affirmance of day after CONCLUSION a district court appeal, conviction within the rule on the motion fails to subject matter of Perhaps because jur in the rule retains period specified inspired has an abundance of cau- day case conclusions, stating reasona our we reiterate the motion for a tion in to decide isdiction First, today. held here if we have day The 60 what period. ble field, language only year 5. Neither the of the 1966 amendment before the amendment. surrounding Moore, to Rule 35 nor the circumstances (2d See 8A J. Federal Practice 35.02[a] adoption support days 1965) (“The the assertion that 120 present language ed. of the Rule filing period. fully agree was intended as a rephrased permit should be Judge Wyzanski’s with the statement con- court to a motion of defendant as curring opinion that the drafters of the amend- period.”) as it is made ently appar- within the But version of ed Rule 35 were familiar with those the drafters concern that sentence reduc- interpreting day requirement the 60 peri- tion motions be decided within a definite filing requirement the old rule to be a od, rather as well as their belief that the new 120 jurisdic- than a limitation on the district court’s period would remedy constitute a sufficient disagree Judge Wyzanski, tion. We with how- problem, reject ap- caused them to ever, as to the inferences that should be drawn proach suggested by Professor Moore and ad- familiarity from the drafter’s with the case law. concurring opinion. Certainly vocated in the Committee Note relied on of the amended rule—“The court Judge Wyzanski quoted in footnote one of reduce a sentence within 120 opinion explicitly this stated that the amend- —suggests rejected . . . that the drafters designed ment was to “increase the time within Professor Moore’s advice. may days. which the court Advisory act’’ to 120 case, being ap- This the we believe that our recognized day Committee that the 60 proach is more consistent with the intent of the period short, in the old rule was too but instead drafters, “legislative,” and hence less than that courts, adopting approach by of the utilized the by adopted concurring opinion. the As our problem by the drafters chose to deal with the opinion out, points by using days filing as a extending jurisdictional period days. to 120 triggers jurisdiction beyond easily adopted The drafters could have a 120 days, integrity we are able to maintain the day filing period, Judge Wyzanski and as days disposition the rule’s use of 120 as the out, points approach suggested by such an time. Moore, leading James one of the authorities in days, files his motion within 60 beyond defendant circumstances variety to a may jurisdiction court the district retain for control;” that those circum- Defendant’s expiration time after the a reasonable probation were that office did stances days in those rare circumstances in which it December, until late complete report is to decide the motion within the unable dealing particularly that “in with a day period. Motions submitted after 60 during period, heavy trial schedule consideration, days precluded are not from simply days; not act within” 120 Court did make every and the district court should the court “felt constrained them within the 120 attempt to rule on apparent intent of Rule 35” language and Finally, open possibili- we leave period. deny defendant’s motion but “If this to exceptional circum- ty that some jurisdiction had the on Defend- justify which would might stances exist sentence, for reduction of ant’s motion retaining jurisdiction beyond 120 court’s grant a reduction.” filed days though even the motion was af- material, far as here Amended Rule So days. ter 35, July provides effective that: bar, In the case at the defendant’s Rule . “The may reduce a sen- day peri- motion was within the 60 filed days tence within 120 after the sentence should, The district court therefore od. imposed, days is or within 120 after re- have retained sufficient ceipt the court of a mandate issued expiration after the judgment affirmance of the or dis- pass on the motion. We appeal.” missal of the denying the district court’s order reverse the defendant’s motion because of lack of Except for the substitution of the num- pro- and remand for further places ber 120 for 60 in the two the number ceedings opinion. consistent with this occurs, pre- where it Amended Rule 35 is cisely the same as Rule 35 was from the AND REMANDED. REVERSED 21,1946. time it became effective on March WYZANSKI, explaining 856. In its Note See Judge, Senior con- 120, curring. change from 60 to Procedure, on Rules of Criminal Committee only This case raises one issue: whether a (see Title United States Code Annotated power District Court has under Rule 35 of 344) that: p. Rule stated the Federal Rules of Criminal Procedure to has been amended to second sentence a sentence when reduce more than 120 days within which the increase the time elapsed had since it received from ap- days act from 60 pellate court a affirming judg- mandate against defendant, although only 60-day period frequently ment too short to days elapsed had when the sentenced de- enable the defendant to obtain and file filed appropriate fendant evidence, for re- argument information and duction, and the District Court’s support Espe- a reduction sentence. action was due to circumstances de- cially where a defendant has been com- fendant’s control. mitted to an institution at a distance court, sentencing delays from the in-

The facts of this case are simple. Sep- mail inspection volved in institutional tember 1976 the District Court received required con- procedures and the time the mandate this court affirming relatives, tact friends and counsel judgment of conviction and the sentence of 60-day period passing in the before result later, Fifty days defendant. October is able to consider the case. the court filed a motion with the District Court for reduction of his sentence. al- asserting 60-day period In Judge The District failed to act within 120 original Rule 35 was intended lowed 7,1976, is, file September Janu- the defendant to obtain and “to enable evidence,” 60-day period that “the ary January 1977 the District short,” frequently experienced too Judge denying filed an order the motion. was practitioners, professors and who judges, Therein he stated that the was “Due 1294 words, 35, Rule Advisory despite Committee showed other Amended

constituted with, approved, and they say, gives were it seems to a District familiar what judicial origi- view that in its prevailing continuing jurisdiction any of motion filed form, text, its despite and the letter of nal prescribed within the by defendant 120 upon permitted 35 a court to act Rule any motion filed at time within defendant’s contrary upon interpretation, A based of 60-day period. This construction old 35, unjust of Rule would be most letter to a implicit cases pre-1966 35 was in such Rule whose motion diligent defendant had been Judge opinion written for as Hutcheson’s absent, without by left action inatten- States, in Johnson v. 5th this court United overburdened, tive, preoccu- or otherwise 459, Cir., 461, Dodge F.2d well as in 235 as It pied judge. would turn a rule designed Bennett, Cir., (1964). 1st v. 335 serve the into a needs of convicts device year before Rule 35 was amended the reducing for and work load by correctly summarized situation judges. of Moore, leading authority, William in James pride in calling judges Our our as ought ed., 1965) (2d Federal Moore’s Practice Vol. not to blind the risks us to by incurred 8A, par. following in words: 35.02[a] those whose come before the less is It should be noted that not alert, diligent, and conscientious of our as the time within which the mo- defined brethren, even before us when we are —or made, may be rather the time but is highest performing not at our levels. within which act. Techni- regard of a construction cally, permits failure the court’s permits the District Court to pass at a motion relief. upon preclude act upon a motion filed present of the Rule is satisfac- any part 120-day period within as tory pow- as a upon limitation the court’s but nothing the converse of the “familiar sponte, to act sua it should er be thing of that “a rule” construction permit rephrased the court to yet within letter of the statute and a motion of defendant as as it is statute, within because not period. within its Despite made within the the de- however, spirit, nor within the intention of ficiency Rule, appears its mak- Holy Trinity latter Church v. interpretation is followed ers.” of United courts, States, 457, 459, 511, 512, 12 acquiesced most most S.Ct. salutary prac- (1892). as a 226 prosecutors, matter 36 L.Ed. Cf. United States v. (Emphasis original.) Associations, Inc., tice. Trucking American 310 534, 543, 1059, 60 84 L.Ed. 1345 U.S. S.Ct. after the became year amendment ef- Co., (1940); Connell Construction Inc. v. fective, involving but in a case Rule 35 as it Local Plumbers & Steamfitters Union No. originally, Judge Hamley, Leyvas stood al., 616, 628, 1830, 421 95 100 S.Ct. States, et U.S. 9th 371 F.2d v. United (1975); 418 Philbrook v. 44 L.Ed.2d Glod- 719, correctly observed that: gett, 421 U.S. 95 S.Ct. 44 While Rule 35 states that the court may Housing (1975); 525 L.Ed.2d United Foun- days,” a sentence “within 60 reduce 837, 849, dation, Forman, 421 Inc. v. U.S. 95 interpreted generally rule has been as (1975); Muniz v. L.Ed.2d S.Ct. filing to the of a relating that time Hoffman, Dodge such See v. motion for relief. at The case bar is 45 L.Ed.2d 657; Cir., Bennett, F.2d United not within letter of thing one where 862; Koneski, Cir., 323 F.2d States yet because rule and within Cir., States, F.2d Johnson v. United spirit its within the intention of within 459, 461. makers. Committee The Note origi- of Rule is in interpretation interpretation liberal adopting the settled Our interpreta- authority. weight with the Unit- govern nal Rule 35 should accord Cir., uses, Stollings, 4th except tion Amended 35 which ed States Rule (1975); numbers, In 1287 United States text. precisely the same Court, Cir., BY THE COURT: 9th 509 F.2d 1352 Janiec, Cir., service, 3rd majority Judges A in active (1975); United States Ourso, (1974); motion, United States having own Court’s deter- E.D.La., F.Supp. 113 banc, mined to have this case en reheard justification opinion for the that this cause shall be There is no IT ORDERED IS panel laying pro- of this down majority en banc on briefs by the Court reheard limitation which legislative spectively spec- will argument. oral The Clerk without a future defendant who filed would leave filing sup- briefing schedule for the ify a before 120 Rule 35 motion after 60 but his briefs. plemental right to have a without an absolute upon that motion. judge pass legislate. We authority no

We have course,

may, of construe is bold- majority’s suggested limitation America, UNITED STATES legislation not construction. faced Plaintiff-Appellee, majority’s suggestion contradicts as shown intent of the rulemakers explicit Joseph HOROVITZ, Defendant-Appellant. the Note of the Committee. No. 76-3287. support majority’s proposal any lacks Appeals, States Court of circuit, and there is no in this or other Fifth Circuit. suppose any partic- that it carries reason from mere weight when it comes ular Jan. multi-judge of a circuit. panel pro- confesses that its majority itself inadequate to cover all cases. No posal is the main judge apply di-

reasonable rely upon proposal but would

rective exceptions, were he faced with a case day, the 61st

where a convict filed on lay motion unacted because on the judge before whom it was

62nd died, vacation, went on a

filed or became case,

occupied lengthy in a antitrust up quickly. make his mind

could not short, pro-

In in this case has diligence prescribed with the to in-

ceeded Court, jurisdiction of the District

voke the is entitled to have his

and defendant legis- should we

decided on its merits. Nor future defendants who file

latively preclude prescribed within the motions

ON PETITION FOR REHEARING

AND PETITION FOR RE-

HEARING EN BANC BROWN, Judge,.

Before Chief THORN-

BERRY, COLEMAN, GOLDBERG, AINS- MORGAN,

WORTH, GODBOLD, CLARK,

RONEY, GEE, TJOFLAT, HILL, FAY,

RUBIN, VANCE, Judges. Circuit

Case Details

Case Name: United States v. Santiago Mario Mendoza

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 9, 1978

Citation: 565 F.2d 1285

Docket Number: 77-1464

Court Abbreviation: 5th Cir.