Appeal from the United States District Court for the Northern District of Illinois, Eastern division. No. 86 CR-331 -- James B. Moran, Judge. Petition for a Writ of Mandamus to be Issued to the United States District Court for the Northern District of Illinois, Honorable James B. Moran, United States District Judge.
Posner, Ripple, and Manion, Circuit Judges.
The government seeks review of the district court's vacation of the defendant's six-month custodial sentence. We dismiss the government's appeal for want of jurisdiction. However, we grant the government's alternate request for a writ of mandamus and direct that the district court restore the defendant's original sentence.
On May 26, 1987, Victor Spilotro pleaded guilty to extortion and filing a false income tax return. On July 17, 1987, he was sentenced to six months in the custody of the Attorney General, to be served in a work-release program. Following that six-month term, Mr. Spilotro was to serve a period of five years' probation. Execution of the sentence was stayed until September 1, 1987.
On August 22, 1987, Mr. Spilotro suffered a heart attack. In the months that followed, Mr. Spilotro was plagued by a number of other serious medical problems, and the district court intermittently stayed execution of his sentence. On April 26, 1988, 284 days after he had been sentenced, Mr. Spilotro filed a motion to modify the terms of his probation in which he requested that the custodial portion of his sentence be vacated. The district court denied the motion on May 25, 1988, noting that the custodial work-release portion of the sentence was exclusive of the probationary term. Due to Mr. Spilotro's continuing severe illness, however, the court continued the stay of execution of the sentence. Notwithstanding its May decision, on December 22, 1988, the district court vacated the six-month custodial sentence because Mr. Spilotro's health prevented him from performing the employment underlying the work-release sentence. The government's motion for reconsideration was denied on January 23, 1989.
The government filed a notice of appeal from the district court's order on February 21, 1989. At the time that the government filed its appellate brief, March 31, 1989, it also filed in this court a petition for a writ of mandamus directing the district court to vacate its order eliminating or suspending the custodial portion of Mr. Spilotro's sentence. Consideration of the government's petition for mandamus has been consolidated with this appeal.
The government has appealed the district court's order reducing Mr. Spilotro's sentence under 18 U.S.C. § 3731 and 28 U.S.C. § 1291. We shall address separately each asserted basis for jurisdiction.
Mr. Spilotro's offense was committed before November 1, 1987. Therefore, 18 U.S.C. § 3742(b), which authorizes government appeals of specific sentencing decisions, does not apply in this case. The government instead relies on 18 U.S.C. § 3731, which authorizes government appeals in federal criminal cases under certain specific circumstances.*fn1 Appeal of a district court order reducing a sentence is not explicitly mentioned as an instance in which appeal is authorized by the statute. While the government recognizes that its right to appeal in criminal cases is limited to those instances in which appeal is authorized by legislative action, see Government Br. at 14, it notes that section 3731 commands that its provisions are to be construed liberally to effectuate its purpose. Id. at 15. Relying on United States v. Wilson, 420 U.S. 332, 43 L. Ed. 2d 232, 95 S. Ct. 1013(1975), and United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349(1977), the government submits that the ...