Appeal from the United States District Court for the Southern District of Illinois, No. CR 82-40029-James L. Foreman, Chief Judge.
Before WOOD, JR., COFFEY, and RIPPLE, Circuit Judges.
WOOD, JR., Circuit Judge. This appeal presents us with another sentence reduction problem arising under Fed. R. Crim. P. 35(b),*fn1 an issue on which the view of this court has not always been unanimous.
On September 10, 1982, the defendant, Donald R. Parrish, entered a plea of guilty to two counts of an eleven-count indictment growing out of the November 1980 default of the First National Bank of Woodlawn, Illinois. Parrish had been President, and a member of the Board of Directors and Loan Discount Committee, as well as a bank shareholder. One count charged that he and two others conspired to defraud the United States, the Federal Deposit Insurance Corporation, and the office of Comptroller of the Currency by making false statements and reports to influence action of the bank upon loan applications, by misapplying bank funds to their personal gain, and by impairing the agencies in their administrative and regulatory functions. 18 U.S.C. §§ 371, 656, & 1014. The other count charged Parrish and a codefendant with misapplication of bank funds with intent to defraud the bank in the amount of $75,000. 18 U.S.C. §§ 656 7 2. In no statutory language Parrish diverted bank fund to an investment enterprise in which he had a personal interest.
On April 8, 1983, Chief Judge Foreman sentence Parrish to a four-year term of imprisonment on the first count, and to a concurrent four-year term of imprisonment on the second count. These sentences were imposed under 18 U.S.C.§ 4205(a), which made Parrish eligible for parole after service of one-third of his aggregate sentence, which would have been September 15, 1984. Parrish entered prison on May 16, 1983, with no jail credit. The full sentence was accordingly due to expire on May 15, 1987. Deduction of good time credits provided by law would have resulted in the release of Parrish on or about June 13, 1986, in the absence of a grant of parole.
On August 5, 1983, the 119th day of rule 35(b)'s 120-day limitation, Parrish, then in custody, filed his motion for reduction of sentence under the rule. The principal reason stated in support of his motion was the alleged disparity between the sentence imposed on Parrish as compared with that imposed on a codefendant, James Nigg, on the same charges. Both had entered into plea agreements with the government and both, it is claimed, had cooperated with the government. The codefendant, Parrish argued, was more involved in the fraud than was he. Parrish's sentence exceeded that of Nigg by two years. In addition to the disparity Parrish alleges that the amount of money involved was inaccurately stated in the presentence report to be in excess of the actual amount. Supplemental mitigating reasons were also stated.*fn2
Parrish's problem developed when a hearing on the motion was held about thirty days later and the matter was taken under advisement. It remained under advisement until August 13, 1985, almost two years after the motion had been filed. At that time, Judge Foreman granted the motion reducing the sentence to the time presently served. The original forty-eight-month sentence was thereby reduced to a sentence of twenty-seven months. The reasons given by Parrish in support of the motion were briefly referred to by the court as "good cause" to justify the reduction, but there is no explanation of the two-year delay.
At the reduction hearing it appears that the disparity may have reflected the government's claim that Parrish had not fully cooperated by supplying information about another codefendant, Bobby Foreman, n.3 [footnote omitted] whereas Nigg had supplied the government with useful information. Judge Foreman expressed great concern about the disparity-in-sentence problems, and particularly in regard to this case. The court further noted that Parrish had a son who was having drug problems and that Parrish and his wife had divorced. She was suffering from a mental breakdown. Judge Foreman also recalled that Parrish had done much good work with other children in the state and that there was a lot of public support for a reduction in Parrish's sentence. The hearing concluded with the court taking the motion under advisement in order, as we read the record, to give Parrish further opportunity to cooperate with the government, if he so desired. Judge Foreman stated that if Parrish did cooperate he would consider that cooperation along with the other mitigating reasons Parrish had advanced. Two years later on August 13, 1985, the sentence was reduced and Parrish was released two days after that from the Federal Prison Camp at Marion, Illinois. At the present time Parrish is not in custody.
There is nothing in the record to suggest that Judge Foreman, in an attempt to preempt that Boyd's responsibility, had any ideas whatsoever about waiting to see what the United States Parole Commission might do. See United States v. Inendino, 655 F.2d 108, 109 (7th Cir. 1981). Nor is there anything in the record to suggest that Judge Foreman was aware that on October 30, 1980, the Commission had in fact denied Parrish's application for parole.
The issue is one of the district court's jurisdiction to grant a motion for reduction of sentence two years after the 120-day provision of Rule 35(9) has expired. The government argues that this case is controlled by Gaertner v. United States, 763 F.2d 787 (7th Cir.) (Cudahy, J., dissenting), cert. denied, 474 U.S. 1009, 106 S. Ct. 535, 88 L. Ed. 2d 466 (1985).*fn4 In Gaertner the defendant also filed a petition for reduction of sentence under Rule 35(b) on the 119th day after his sentence had been imposed. The district court denied the motion because 120 days had passed by the time the motion was considered by the court. This court affirmed, holding that Rule 35(b) must be interpreted literally to deprive district courts of jurisdiction to determine motions to reduce sentence once the 120-day limitation period has expired. 763 F.2d at 797. Gaertner, which changed the long-standing law of this circuit, might have been foretold by a reading of United States v. Kajevic, 711 F.2d 767, 776 (7th Cir. 1983), cert. denied, 464 U.S. 1047, 79 L. Ed. 2d 182, 104 S. Ct. 720 (1984). Although it did not effect the change itself, Kajevic "warned that some members of this court, at least, have... doubts" that the prior interpretation of Rule 35(b) in this circuit was correct. This circuit, as had most other courts, had previously placed a nonliteral interpretation on the rule which permitted a defendant's Rule 35 motion, provided it was filed within 120 days, to be determined by the court within a reasonable time after the 120-day period had expired. United States v. DeMier, 671 F.2d 1200 (8th Cir. 1982); United States v. Smith, 650 F.2d 206 (9th Cir. 1981); United States v. Johnson, 634 F.2d 94 (3d Cir. 1980); United States v. Mendoza, 581 F.2d 89 (5th Cir. 1978); United States v. Stollings, 516 F.2d 1287 (4th Cir. 1975).
Even those members of this court who took exception to the Kajevic "warning" must credit Kajevic with helping, however, to accomplish the 1985 amendment to Rule 35(b), the interim amendment which by statute allows the court a reasonable time after 120 days to consider the motion. The amendment restored the law in this circuit to what it had been before Gaertner. See Fed. R. Crim. P. 35(b) advisory committee note (explaining background of 1985 Amendment to Rule 35(b)). See also United States v. Kimberlin, 776 F.2d 1344, 1349 (7th Cir. 1985) (Ripple, J., dissenting).*fn5
Parrish says the 1985 Gaertner decision should not be applied retroactively to his 1983 motion to divest the district court of jurisdiction to reduce the sentence. To do otherwise, Parrish argues, could result in unfairness as the delay in ruling on the motion by the court until after the 120 days has expired can have unforeseen and harsh results. In this case Parrish and the government find no reason in the record for the delay as none appears in the order reducing the ...