The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
On Friday May 25, 1984 counsel for James Dunn ("Dunn") filed
with the Clerk of this Court a motion under Fed.R.Crim.P.
("Rule") 35 for reduction of the sentence imposed on Dunn by
this Court January 30, 1984. In the regular course that motion
found its way to this Court's chambers at the close of the
next working day, May 29 (on May 28 the entire District Court
had been closed because of the official Memorial Day holiday).
That was literally the end of the 120th day after the
At the outset this Court must decry the timing of the
motion. Rule 35 literally allows reduction of a sentence only
"within 120 days after the sentence is imposed. . . ." Though
there has been a fairly widespread judicial tendency to bend
that literal language where a Rule 35 motion has been
filed within 120 days and the District Court acts promptly
thereafter (see, e.g., what our Court of Appeals has described
as "the leading case" for that viewpoint, United States v.
Stollings, 516 F.2d 1287, 1289-90 (4th Cir. 1975)), in all
candor that is not how the Rule reads — and the cases that
speak that way have really engaged in judicial legislation.
Last year our own Court of Appeals issued the strongest kind of
suggestion that the 120-day limit was jurisdictional (though it
did not have to decide the issue definitively under the facts
presented). United States v. Kajevic, 711 F.2d 767 (7th Cir.
1983); and see the unanimous expression of the Supreme Court,
albeit in dictum, in United States v. Addonizio, 442 U.S. 178,
189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979):
The [120-day] time period, however, is
jurisdictional and may not be extended.
In the face of Kajevic (and the Addonizio dictum) there is
simply no excuse for counsel's failure to file a motion early
enough to permit the District Court's reasoned consideration
and action before the 120-day period runs out.
That was not done here,*fn1 and there is thus a serious
question whether this Court has jurisdiction to act at all.
But this order will not rest on that probability, for the
motion would have to be denied on the merits in any event.
Rule 35 motions, like motions to reconsider judgment orders
in civil cases, should not simply assert the same arguments
made and found wanting at the original sentencing (or at the
time of the original civil order). They should rather deal
either with matters wholly misperceived by the Court the first
time around (not in the sense of merely an assertedly mistaken
decision, but in the sense of a decision that had really
misunderstood what the issues before the court were), or with
unforeseen developments occurring since the original decision
Here the motion does not do that at all. It really rehashes
the selfsame arguments counsel made when sentence was imposed
— even to advancing the American Bar Association Standards for
Criminal Justice and similar criteria, just as counsel
had done before sentence was imposed. It points to factors
(such as Dunn's war record and his "status as a first
offender"*fn2 and his employment history) this Court had long
since read and studied in the thorough presentence
investigation report submitted before the time of sentencing.
Without or almost without exception, every one of the things
the Rule 35 motion mentions is a matter this Court has already
considered and rejected in the balancing process that marks
all sentencing decisions.
Every sentencing poses a difficult decision. Before this
Court imposes any sentence it confers with its fellow
participants in this District Court's sentencing council, and
its own independent decision is always the product of
extensive thought and introspection. This case was no
For the reasons this Court stated at some length during the
original sentencing, it remains convinced the sentence imposed
— taking all the relevant factors into consideration — was
both a fair and a moderate one. Dunn's motion, even ...