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December 6, 1984


The opinion of the court was delivered by: Shadur, District Judge.


Gary Goehl has moved under Fed.R. Crim.P. ("Rule") 35 for reduction of the sentence imposed by this Court July 26, 1984 pursuant to a plea agreement Goehl had previously entered into with the United States. For the reasons briefly stated in this memorandum opinion and order, the motion is denied.

At the outset a comment is in order as to the timing of the motion. It was filed November 21, 118 days after imposition of sentence. That meant of course the United States had no opportunity to prepare even a skeletal response until more than 120 days had elapsed after sentencing.*fn1 Yet in literal language all Rule 35 empowers this Court to do is "to reduce a sentence within 120 days after the sentence is imposed. . . ."

Despite the clear language of Rule 35 — and its seemingly jurisdictional time limitation — some courts have stretched the Rule to allow relief after 120 days have expired, so long as relief was requested within the 120 day period. Our own Court of Appeals has not ruled specifically on that jurisdictional question. However its opinion in United States v. Kajevic, 711 F.2d 767, 770-72 (7th Cir. 1983), after discussing the problem under the special circumstances posed there, read like a caveat to the bar and District Court bench that the questionable practice of filing Rule 35 motions just before the 120 days ran out ought to be abandoned. This is one of the many areas of law in which certainty ought to be the primary goal to mold people's conduct, for there is no reason practitioners cannot (with rare exceptions) get their motions into court sufficiently within the 120-day limit to allow due consideration and clearly jurisdictional rulings. United States v. Inendino, 655 F.2d 108, 110 (7th Cir. 1981), quoted in Kajevic, 711 F.2d at 770; United States v. Dunn, 585 F. Supp. 1365, 1366 (N.D.Ill. 1984).

Nonetheless this Court is aware of at least one Seventh Circuit decision, unpublished and therefore unciteable under its Circuit Rule 35(b)(2), that suggests via footnote that Rule 35 is not to be read as it reads. Absent a definitive signal on the subject, therefore, this Court will consider Goehl's motion on the merits.

Goehl's plea agreement was under Rule 11(e)(1)(C) — an agreement for a specific sentence of 18 months' imprisonment among other things. That meant this Court had to advise Goehl at the time of his guilty plea, as it did in fact, that if the Court ultimately rejected the plea agreement all bets were off and Goehl would get a second chance to decide whether he wanted to withdraw his guilty plea or to persist and take his chances on what sentence this Court would impose on its own.

After full deliberation, including consideration of the usual extensive presentence investigation report provided by this District Court's Probation Office and a full allocution hearing, this Court decided to honor the agreement the parties had struck to deal with Goehl's large-scale fraud. It imposed a sentence identical to that set out in the plea agreement, stating at the end of the allocution hearing that though this Court might perhaps have arrived at a sentence somewhat different from that represented by all the components of the Rule 11(e)(1)(C) agreement, the agreed-upon terms were well within the range of a reasonable societal response to the offenses and to Goehl's personal circumstances.

Now Goehl asserts a half-dozen reasons for changing the deal he made. Though it is true a sentence under a plea agreement (unlike other contracts) implicates liberty, the fact remains a plea agreement is a contract and both government and defendant are contractually bound by the commitments in a Rule 11(e)(1)(C) plea agreement. United States v. Mooney, 654 F.2d 482, 486 (7th Cir. 1981). Of course reduction of an agreed-on sentence may nonetheless be justified if post-sentencing developments, previously unforeseen and rendering the earlier binding agreement inappropriate, were to occur. Id. at 487; Dunn, 585 F. Supp. at 1366.

But even from the perspective of a fresh look unfettered by considerations of contract, no reduction in sentence is warranted here. It is unnecessary to deal chapter and verse with what Goehl argues and the reasons for rejecting those arguments. Instead this Court finds the government response (attached as Appendix A) fairly states the reasons Goehl's motion is nonpersuasive.*fn2

Accordingly, as stated at the outset of this opinion, Goehl's Rule 35 motion is denied.


                         REDUCE SENTENCE

Nov. 2, 1984

The UNITED STATES OF AMERICA by DAN K. WEBB, United States Attorney for the Northern District of Illinois, moves this Court to deny defendant Gary Goehl's motion to reduce his sentence. In ...

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