ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Crim. No. 76-00173-07)
Before Adams, Hunter and Higginbotham, Circuit Judges.
The issue in this case is whether a district court has jurisdiction to entertain a motion for reduction of sentence filed within 120 days of the revocation of an offender's probation and the imposition of a prison sentence that had previously been suspended.
Luvenia Johnson pleaded guilty on January 25, 1977 to charges of unlawful distribution of heroin in violation of 21 U.S.C. § 841(a)(1) (1976). The district court sentenced her to a three-year term of imprisonment with a special parole term of three years to follow, but then suspended all but six months of imprisonment in favor of a four-year probation term. After serving six months in the appropriate institution, Johnson was released on probation.
At a hearing held on December 27, 1979, the district court found Johnson guilty of violating her probation. The court revoked Johnson's probation and reimposed the original sentence of three years imprisonment and three years special parole. Johnson received credit for the six months served under the original sentence.
On April 25, 1980, Johnson filed a motion for reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure. On April 28, the district court denied Johnson's motion on the ground it had no jurisdiction to consider it. This appeal followed.
Rule 35 provides that "(the) court may reduce a sentence within 120 days after the sentence is imposed." The Rule then goes on to state that "(the) court may also reduce a sentence upon revocation of probation as provided by law." The time limitations contained in Rule 35 have been held to be "jurisdictional and cannot, under any circumstances, be extended by order of the court." United States v. Robinson, 457 F.2d 1319 (3d Cir. 1972) (per curiam); accord, Government of the Virgin Islands v. Gereau, 603 F.2d 438, 440 (3d Cir. 1979); cf. Fallen v. United States, 378 U.S. 139, 144, 84 S. Ct. 1689, 1692, 12 L. Ed. 2d 760 (1964) (when "petitioner did all he could under the circumstances" to comply with the time limitations of a Rule of Criminal Procedure the Court should "decline to read the Rules so rigidly as to bar a determination of his appeal on the merits"). On this appeal we are asked to decide whether the imposition, upon revocation of probation, of a term of imprisonment that had been suspended when the defendant was first placed on probation triggers the 120-day period during which a court may, under Rule 35, reduce that sentence. If, in the present case, the hearing of December 27, 1979 inaugurated such a 120-day period, then Johnson's motion of April 25 was timely and should have been considered by the court.*fn1
The only federal case brought to our attention that addresses the precise question raised here is United States v. Kahane, 527 F.2d 491 (2d Cir. 1975). Faced with a fact pattern similar in all relevant respects to the one before us, the Second Circuit concluded, without elaboration, that petitioner's motion to reduce sentence was barred by the 120-day limitation of Rule 35. For the reasons set out below, we decline to follow Kahane.*fn2
A sentencing court has two options when it decides to place a defendant on probation. The court may either suspend entirely the imposition of sentence and place the defendant on probation, or it may impose a term of imprisonment, suspend its execution in whole or in part, and order probation.*fn3 A unanimous Supreme Court in Korematsu v. United States, 319 U.S. 432, 435, 63 S. Ct. 1124, 1126, 87 L. Ed. 1497 (1943), declared that "the difference to the probationer between imposition of sentence followed by probation ... and suspension of the imposition of sentence (followed by probation)" is not a meaningful one.*fn4 Because the two approaches result in no significant difference, we believe that probationers in the two situations should be treated similarly with respect to the application of Rule 35. The government concedes that when imposition of sentence is suspended entirely at the time a defendant is placed on probation, that defendant has, under Rule 35, 120 days after revocation of probation and imposition of sentence to petition for leniency. See United States v. McCraw, 420 F. Supp. 443, 444 (E.D. Mich. 1976). To deny a similar 120-day period to probationers for whom execution, rather than imposition, of sentence originally had been suspended would run afoul of the principle that the law should treat similarly situated persons similarly. See, e.g., Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989 (1920) ("all persons similarly circumstanced shall be treated alike").
In addition to securing equality of treatment, construing Rule 35 in the manner urged by defendant Johnson supplies a valuable element of flexibility to the sentencing process. The Second Circuit has pointed out that "Rule 35 is intended to give every convicted defendant a second round before the sentencing judge, and at the same time, it affords the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented to him in the interim." United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir.), cert denied, 393 U.S. 918, 89 S. Ct. 241, 21 L. Ed. 2d 206 (1968). The dissent contends that the initial sentencing hearing at which a suspended sentence is imposed provides the defendant with an opportunity to request a reduction. While it is technically correct that a defendant could press a Rule 35 motion at that time, we do not believe that the original sentencing hearing invariably provides a meaningful opportunity for such a claim to be made and considered by the court. It frequently will be unrealistic for a defendant whose sentence has just been suspended to petition the court for the further relief of a reduction of that suspended sentence.
Just as significant, we doubt that sentencing judges would be very receptive to Rule 35 motions proffered at the time the execution of a term of imprisonment is suspended in whole or in part and the defendant given a term of probation. Moreover, the sentencing judge cannot know of events that might occur later and that might bear on what would constitute an appropriate term of imprisonment should the defendant violate his probation. Justice Frankfurter observed in Roberts v. United States, 320 U.S. 264, 64 S. Ct. 113, 88 L. Ed. 41 (1942), that probation is "an experimental device ... a reliance on the future to reveal treatment appropriate to the probationer." The sentencing judge will ordinarily not be in a position to evaluate the results of this experiment and to determine the most appropriate punishment for a defendant until the hearing to determine whether probation should be revoked. In particular, it is only with the revocation hearing that the judge is in a position to consider whether a sentence originally suspended pending probation should be reduced. The revocation hearing is thus the first point at which an offender can be afforded a realistic opportunity to plead for a light sentence. If the offender is to be provided two chances with the sentencing ...