The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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Circuit decision, unpublished and therefore unciteable under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.
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.
GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO
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 ...