D.D.C. Notes Split Re Time Limit of Federal Rule of Criminal Procedure 35(a)
Per U.S. v. Anderson, --- F.Supp.2d ----, 2007 WL 1719556 (D.D.C. June 15, 2007):
The Court agrees with the defendant that the Court's authority to “correct a sentence” pursuant to Rule 35(a) is restricted to circumstances not present in this case.FN4 Furthermore, for the reasons stated in open court on March 27, 2007, and as further explained below, the Court concludes that it has no legal authority to order restitution for the tax loss on the federal counts in this case.
FN4. There is a procedural wrinkle that, in view of its decision on the merits, the Court need not address. Rule 35(a) on its face does not provide a time limit for when a motion must be filed, but a time limit within which the Court must act. The circuits are split on how to deal with this language. Compare United States v. Barragan-Mendoza, 174 F.3d 1024, 1030 (9th Cir.1999) (timely motion filed pursuant to Rule 35(c) [the predecessor to Rule 35(a) ] does not give jurisdiction to court for so long as it takes to dispose of motion because court itself is required to act within the prescribed time limit by plain language of the Rule); United States v. Morillo, 8 F.3d 864, 869 (1st Cir.1993) (same); United States v. Turner, 998 F.2d 534, 536 (7th Cir.1993) (same) with United States v. Carmouche, 138 F.3d 1014, 1016 (5th Cir.1998) (holding that timely filing of Rule 35(c) [predecessor to Rule 35(a) ] motion renders otherwise final order of district court nonfinal until disposition of that motion); United States v. Corey, 999 F .2d 493, 496 (10th Cir.1993) (same). See also United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2d Cir.1995) (holding that time limit in Rule 35(c) [predecessor to Rule 35(a) ] is jurisdictional); United States v. Lopez, 26 F.3d 512, 519 n. 8 (5th Cir.1994) (same); United States v. Fahm, 13 F.3d 447, 453 (1st Cir.1994) (same).