Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81 CR 82- Robert W. Warren, Judge.
Cummings, Chief Judge, Cudahy, Circuit Judge, and Pell, Senior Circuit Judge.
PELL, Senior Circuit Judge.
Defendant Gaertner filed a motion for reduction of sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure in the Eastern District of Wisconsin 119 days after the Supreme Court entered an order denying defendant a writ of certiorari on a direct appeal from his conviction. On July 25, 1984, 191 days after the Supreme Court's denial of certiorari, the district court denied defendant's Rule 35(b) motion on the ground that the court lacked jurisdiction to reduce defendant's sentence. Defendant appeals from the district court's decision.*fn1
On August 7, 1981, a jury convicted defendant Thomas Gaertner of possession with intent to distribute cocaine. Approximately two months later the trial judge sentenced defendant to a term of twelve years in prison, plus six years of special parole. Defendant appealed his conviction and his sentence to this court. This court upheld defendant's conviction as well as his sentence and also notified defendant that Rule 35(b) authorized him to request a reduction of his sentence from the trial court within 120 days of the trial court's receipt of a mandate of affirmance from this court. United States v. Gaertner, 705 F.2d 210, 219 & n.3 (7th Cir. 1983). Defendant subsequently filed a petition for writ of certiorari in the Supreme Court. The Supreme Court denied defendant the writ on January 16, 1984. Gaertner v. United States, 464 U.S. 1071, 104 S. Ct. 979, 79 L. Ed. 2d 216 (1984). One hundred and nineteen days after the Supreme Court's denial of certiorari, defendant filed a motion for reduction of sentence in the trial court. The trial court denied defendant's motion 191 days after the Supreme Court's denial of certiorari, relying on three factors it had set forth in a similar Rule 35 case entitled United States v. Cotton, 586 F. Supp. 199, 202 (E.D. Wis. 1983). These factors were:
(1) defendant's filing in the twilight of the 120-day period;
(2) the court's failure to resolve the motion prior to the expiration of the 120-day period; and
(3) the lack of newly discovered evidence or a change of circumstances occurring within the last days of the time limitation.
United States v. Gaertner, 590 F. Supp. 271, 274 (E.D. Wis. 1984) (quoting United States v. Cotton, 586 F. Supp. at 202). In Cotton, the court had announced that it would deny on jurisdictional grounds all Rule 35(b) motions in cases where these three factors were present. United States v. Cotton, 586 F. Supp. at 202. The district court in this case followed the rule it had enunciated in Cotton and consequently denied defendant's Rule 35 motion filed 119 days after the denial of certiorari. United States v. Gaertner, 590 F. Supp. at 274.
Federal Rule of Criminal Procedure 35 provides, in pertinent part:
(a) Correction of Sentence. The Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation.
FED. R. CRIM. P. 35 (emphasis added). Federal Rule of Criminal Procedure 45(b) makes clear that the court may not enlarge the time limits contained in Rule 35.*fn2 FED. R. CRIM. P. 45.
We note that no such time limits apply if the court seeks to correct an illegal sentence rather than a legal sentence imposed in an illegal manner. FED. R. CRIM. P. 35(a). In this case, however, defendant does not contend that the sentence imposed upon him by the trial judge was illegal. Defendant concedes that the twelve-year prison term plus six-year special parole term he received was within the statutory limits set forth in 21 U.S.C. § 841(a)(1)(A), the statute under which he was convicted. 21 U.S.C. § 841(a)(1)(A) (1981). Defendant contends, nevertheless, that the trial judge imposed his sentence in an illegal manner because the judge, in sentencing defendant, construed section 841(a)(1)(A) to permit a thirty-year prison term as well as a special parole term even though the section set forth a ...