where he earned commissions of $ 10,000 in 1989.
14. In 1990, Defendant worked for seven months with Associated Business Brokers. He then joined Progressive Business Brokers as a one-third partner. Defendant earned a total of approximately $ 37,000 in 1990.
15. Defendant continued as a partner of Progressive Business Brokers in 1991. He earned a total of $ 25,968.82 in that year.
16. Defendant continued to work for Progressive Business Brokers in 1992. As of August 1992, Defendant earned only $ 1,401.61. Defendant explained that partnership income has declined in 1992 because businesses are closing faster than his firm can sell them.
17. Defendant's wife has also been employed before and since Defendant's release from prison. The Court does not have data on her earnings in 1987 and 1988. In 1989, Mrs. Schilling earned $ 3,430.10; in 1990 $ 8,395.08; in 1991 $ 12,632.14. Mrs. Schilling earns $ 7.25 per hour at her job with Transworld Temporaries and $ 5.75 per hour at her job with Bach & Company. She will earn approximately $ 10,000 in 1992.
18. In October and November 1991 Defendant and his wife received federal tax refunds for tax years 1980, 1981, 1983, 1984, 1985, 1986, and 1988 totalling $ 33,059.12. In addition, the Schillings received interest income of $ 13,276.12 in 1991. The tax refunds and interest represented sums the United States Government owed to the Schillings because the Internal Revenue Service had delayed the payment of their tax refunds because of the Schillings' Chapter 11 bankruptcy filings. (Bankruptcy Nos. 81-01864T to -01868T).
19. On May 2, 1988 Defendant purchased his current residence at 1917 Duffield Court, Allentown, Pennsylvania, 18103 for $ 213,500. He made a cash downpayment of $ 60,000 and obtained a mortgage for the balance of the purchase price. The appraised value of the property on April 23, 1992 was $ 208,000.
20. Defendant owns two automobiles. One is a 1989 Hyundai Excel which has a fair market value of $ 3,200. The other is a 1991 Hyundai Excel which has a fair market value of $ 3,900.
21. Defendant has total assets of approximately $ 226,000.
22. As of April 3, 1992, Defendant had total liabilities of approximately $ 203,500.
23. Defendant, as of that date, owed $ 166,293.72 on the mortgage. Defendant testified that he was current in making his monthly mortgage payments of $ 1,363.75, although he may have fallen one month behind as of August 1992.
24. Defendant has no medical insurance. He owes approximately $ 800 in medical expenses. He spent over $ 1,000 in medical expenses in 1991 for his son Matthew and has medical expenses for himself, his wife, and Matthew in 1992.
25. Among his other liabilities, Defendant owes $ 59,320 to Bruce C. Loch for the downpayment on his property and home, $ 14,473.96 to Elsie Schilling for family support while he was incarcerated, and $ 14,356.12 in installment debt. His other liabilities are listed on Government Exhibit 2.
26. While paying only a small amount of money on his fine from 1987 to 1992, Defendant paid for his son John's tuition and expenses to attend an out of state school, remained current on his mortgage and car payments, and charged and paid off large sums of money on his credit cards. For example, from October 1991 through December 1991, Defendant made the following large payments:
Check No. Date Amount Payee
3069 10/17/91 $ 1,000.00 Chase Visa
3070 10/17/91 572.00 Citibank Visa
3079 10/21/91 2,011.53 Gina Bruchob
3092 10/28/91 1,481.04 Citicorp Mortg.
3129 11/14/91 1,779.86 Chase Visa
3130 11/14/91 6,900.00 Corestates Visa
3143 11/20/91 1,383.58 Citibank Visa
3281 12/30/91 1,363.75 Citicorp Mortg.
Checks 3129 and 3130 represent payments for his son John's tuition. Checks 3092 and 3281 represent payments for his mortgage. Defendant continues to pay many of his debts as they come due, but has made no payments on his fine since February 1992.
27. The current fair market value of Defendant's home is $ 208,000. He owes approximately $ 166,000 on the mortgage. Thus, there exists $ 42,000 of equity in his residence.
28. Defendant attempted to obtain a $ 15,000 loan in July 1991 from Bank of Pennsylvania. The bank denied his application for credit because he had a judgment rendered against him for $ 25,000, he had excessive obligations in relation to income, and because he had delinquent past or present credit obligations with others.
29. Defendant is attempting to sell his home. As of the date of the hearing, he has been unsuccessful. Defendant is asking $ 245,000 for the home and property, but states that he is willing to negotiate. Defendant has entered into an exclusive right to sell agreement with Progressive Realty, Inc.
30. Defendant is looking for new employment daily. His expertise is in construction, but the job market in that sector is tight.
31. Defendant attends classes to obtain a real estate broker's license.
32. Defendant's current expenses greatly exceed his current income. Defendant's current expenses are approximately $ 3,000 per month and include, among other things, the mortgage, car loans, educational expenses, auto and homeowners insurance, and medical expenses. Defendant's income for the first eight months of 1998 averaged $ 175 per month and his wife's income averaged approximately $ 800 per month (based on estimated annual earnings of $ 10,000).
Rule 35 of the Federal Rules of Criminal Procedure, as applicable to offenses committed prior to November 1, 1987, provided in part:
(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, 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. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
Fed. R. Crim. P. 35(b), Rule Applicable to Offenses Committed Prior to Nov. 1, 1987, 18 U.S.C.A. (West Supp. 1992). Defendant had a right to request a remission of his fine under this rule, but he lost that right by failing to file the motion within the 120 day period. As stated in United States v. Robinson, 457 F.2d 1319, 1319 (3d Cir. 1972), "the 120-day time limitation stated in Rule 35 'is jurisdictional and cannot, under any circumstances, be extended by order of the court.'" Therefore, the Court lacks the power to reduce Defendant's fine under Rule 35(b).
Under former section 3573 of Title 18 of the United States Code, a defendant had the opportunity to petition the district court to modify or remit a fine. 18 U.S.C.A. § 3573 (West 1985). Former section 3573 provided in part:
A defendant who has been sentenced to pay a fine, and who--