The opinion of the court was delivered by: ROBERT W. SWEET
The Defendant Michael P. Oshatz ("Oshatz") has moved pursuant to Rule 35(b), Fed. R. Crim. P., for reconsideration of this Court's disposition of his motion for reduction of sentence. This motion was filed on March 4, 1993 and was taken on submission on March 17, 1993. It is considered fully submitted as of that date. For the reasons set forth below, this motion is denied.
In a Memorandum Opinion (the "Opinion") dated November 18, 1991, this Court granted Oshatz's motion for reduction of sentence and reduced his original sentence of 40 months to 32 months. This reduction was warranted in light of Oshatz's deteriorating physical condition and certain financial and personal difficulties his incarceration had imposed upon his family.
Oshatz now moves for reconsideration of the reduction set forth in the Opinion on the ground that he has been unable to obtain various exhibits, including certain partnership tax returns upon which the prosecution based its estimates of losses attributable to Oshatz's actions, for use at his parole hearing. As a result, Oshatz contends, it was necessary to postpone the hearing scheduled for November 1992.
Finally, Oshatz alleges that because he did not have the requested tax returns to document the "actual loss" figures he presented to the Parole Commission ("Commission"), the Commission denied Oshatz a grant of parole. Oshatz now moves this Court to remedy the situation by, in effect, doing what the Commission has refused to do by further reducing his sentence in lieu of his being granted parole.
This motion is made pursuant to the "old law" Rule 35(b) and as such is untimely. Rule 35(b) provides:
A motion to reduce a sentence may be made . . . within 120 days after entry or any order or judgment of the Supreme Court . . . having the effect of upholding, a judgment of conviction.
Fed. R. Crim. P., Rule 35(b). As such, it is untimely and as such must be summarily denied because this Court is without jurisdiction to entertain it.
In an unreported opinion, the Honorable Charles S. Haight, considering the practical application of the 120-day time limit on the court's jurisdiction to entertain motions for reconsideration, noted that:
In practice . . . most courts have permitted the district court to act upon a Rule 35 motion outside the boundaries of the 120 days limitation, so long as the motion was timely filed within that period.
United States v. Lichtman, No. 81 Cr. 849 (CSH), slip op. at 2 (S.D.N.Y. Nov. 21, 1983) (LEXIS, Genfed library, Dist file). Judge Haight concluded:
If a court may decide a Rule 35 motion outside the 120-day limitation, it follows that the court may, in response to a prompt request, reconsider its decision. The request must be made with reasonable promptness, and the court must rule on the request within a reasonable time, after ...