ROY DAN JACKSON, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-1105

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the time limitation set forth in Rule
35(b) of the Federal Rules of Criminal Procedure does not apply to a
motion to reduce sentence and grant probation under 18 U.S.C. (& Supp.
III) 3651.

   1. On July 26, 1984, petitioner pleaded guilty to a one-count
information charging him with filing a false federal income tax
return, in violation of 26 U.S.C. 7206(1), and was sentenced to 30
months' imprisonment (Pet. App. A2-A3).  Petitioner was ordered to
begin serving his sentence on October 29, 1984.  On October 19, 1984,
he filed a motion for reduction of sentence pursuant to Fed. R. Crim.
P. 35(b).  The district court denied the motion on February 20, 1985,
and directed petitioner to report for confinement on March 22, 1985
(Pet. App. A3-A4).  Petitioner's motion for reconsideration of that
order was denied on March 8, 1985.  On March 22, 1985, the district
court indefinitely extended petitioner's reporting date upon learning
that petitioner had been injured in a mining accident.  On October 18,
1985, the court again set a date for petitioner to begin serving his
sentence (Pet. App. A4).  However, on January 6, 1986, the day
petitioner was scheduled to begin his term of imprisonment, he filed a
motion requesting the court to "reduce the sentence and place him on
probation, or otherwise reduce the term of the sentence pursuant to
Rule 35(b) of the F.R.C.P. and/or pursuant to 18 U.S.C. Section 3651
et seq.  * * * " (Pet. App. A4-A5).

   The district court ruled that it did not have jurisdiction to
consider petitioner's motion because it was filed more than 120 days
after the imposition of sentence (Pet. App. B1-B2, /1/ and the court
of appeals, affirmed (Pet. App. A1-A18).  Execution of petitioner's
sentence has been stayed pending the outcome of these proceedings
(Pet. 4).

   2. Petitioner contends that the time limitation of Rule 35(b) does
not apply to the district court's power to grant probation under 18
U.S.C. (& Supp. III) 3651.  The court of appeals correctly rejected
that claim.  Moreover, the present language of Rule 35(b) has been
amended and 18 U.S.C. (& Supp. III) 3651 has been repealed effective
November 1, 1987.  /2/ Accordingly, despite the fact that the court of
appeals' decision is in conflict with the decision of another circuit,
review by this Court is not warranted.

   a. The Probation Act, passed in 1925, grants district courts the
authority to suspend imposition or execution of a sentence and place
the defendant on probation, but does not specify a time period within
which that authority may be exercised.  Rule 35(b), Fed. R. Crim. P.,
as amended in 1966, provides that a motion to reduce sentence must be
made "within 120 days after the sentence is imposed * * * ." /3/ In
1979, Rule 35(b) was amended to add the following language:  "Changing
a sentence from a sentence of incarceration to a grant of probation
shall constitute a permissible reduction of sentence under this
subdivision."

   The court of appeals held that any motion for probation in place of
incarceration constitutes a request for reduction of sentence within
the purview of Rule 35(b) and, as such, must be made within 120 days
after sentence is imposed.  Because the motion at issue here was filed
more than one year after the expiration of the 120-day period, the
court of appeals correctly ruled that the district court lacked
jurisdiction to grant petitioner's motion to convert his prison
sentence to one of probation.

   Petitioner contends that the decision of the court of appeals
conflicts with the decisions of the Second and Eighth Circuits in
United States v. Ellenbogen, 390 F.2d 537 (2d Cir.), cert. denied, 393
U.S. 918 (1968), and Phillips v. United States, 212 F.2d 327 (8th Cir.
1954).  There is no conflict with those cases.  While those courts
held that Rule 35(b) did not limit the time within which a district
court could grant probation, those cases were decided before Rule
35(b) was amended in 1979.  Because the 1979 amendment specifically
applied the 120-day time limitation to orders changing a sentence of
incarceration to a grant of probation, the pre-1979 cases cited by
petitioner are readily distinguishable.

   The only remaining authority cited by petitioner is United States
v. Karp, 764 F.2d 613 (9th Cir. 1985), a case we believe was
incorrectly decided.  In Karp, the court concluded (id. at 615) that
the purpose of the 1979 amendment to Rule 35(b) was to counter this
Court's holding in United States v. Murray, 275 U.S. 347 (1928), /4/
but that Congress did not intend the amendment to apply the time of
limitation of Rule 35(b) to the district court's decision to grant
probation.  As the court below stated in this case (Pet. App. A14),
Karp is "not in keeping with the clear language of the rule or intent
of the rule as set forth in the Advisory Committee comments" on the
1979 amendment to Rule 35(b).

   The Advisory Committee explained that Rule 35 was amended in 1979
"to make it clear that a judge may, in his discretion, reduce a
sentence of incarceration to probation.  To the extent that this
permits the judge to grant probation to a defendant who has already
commenced service of a term of imprisonment, it represents a change in
the law" (Rule 35 advisory committee note on 1979 Amendment, 18 U.S.C.
App. at 631).  The committee stated that the amendment was necessary
to change the rule enunciated in United States v. Murray, supra, and
Affronti v. United States, 350 U.S. 79 (1955), that the Probation Act
does not empower a district judge to order probation at any time after
execution of the pronounced sentence begins.  The committee also noted
that the concerns this Court recited in Murray ("undue duplication of
the three methods of mitigating a sentence -- probation, pardon and
parole" and the additional burden upon district judges "of responding
to probation applications from prisoners throughout the service of
their terms of imprisonment") would not be present because "the
reduction may occur only within the time specified in * * * (Rule
35(b))." Rule 35 advisory committee note on 1979 Amendment, 18 U.S.C.
App. at 631.  /5/

   Thus, as the court of appeals correctly held, the plain language of
the Rule and the accompanying committee note clearly provide that when
a sentence of incarceration is changed to a grant of probation, that
action shall constitute a reduction of sentence under Rule 35(b).  As
such, it necessarily requires application of the Rule 35(b) time
constraints.

   b. At all events, this case does not warrant review by the Court
since both the current Rule 35(b) and 18 U.S.C. 3651 have been
repealed as of November 1, 1987.

   The Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, Ch.
II, 98 Stat. 1987 et seq., creates a new sentencing guidelines system
that will eliminate the need for either Section 3651 or the present
Rule 35(b).  There is no provision in the new legislation allowing a
defendant to move for reduction of sentence.  Rather, the statute
provides that a sentence imposed by a district judge is subject to
appeal on grounds of illegality or an incorrect application of the
sentencing guidelines.  The new version of Rule 35(b) will permit
reduction of sentence only on application of the government.
Consequently, as of November 1, 1987, the conflict among the circuits
over the issue presented in this case -- an issue that arises
infrequently in any event -- will be of only historical interest.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   MARCH 1987

   /1/ The district court noted that if it had jurisdiction, it would
consider suspending all but six months of the 30-month sentence and
placing petitioner on supervised probation for the balance of the
30-month term (Pet. App. A5).

   /2/ 18 U.S.C. (& Supp. III) 3651 is repealed pursuant to Pub. L.
No. 98-473, Tit. II, Ch. II, Section 212(a)(1), and (2), 98 Stat. 1987
(Oct. 12, 1984).  Rule 35(b) is amended pursuant to Pub. L. No.
98-473, Tit. II, Sections 215(b), 235, 98 Stat. 2015, 2031 (Oct. 12,
1984), as amended by Pub. L. No. 99-217, Section 4, 99 Stat. 1728
(Dec. 25, 1985), and Pub. L. No. 99-570, Tit. I, Section 1009, 100
Stat. 3207 (Oct. 27, 1986).

   /3/ Pursuant to Rule 45(b)(2), Fed. R. Crim. P., as amended in
1966, the time constraints of Rule 35(b) may not be extended by the
court.

   /4/ In United States v. Murray, supra, this Court held that
probation could be ordered only before a defendant began to serve any
part of the sentence initially imposed.

   /5/ The Karp court apparently overlooked this statement in the
advisory committee note when it concluded that the 1979 amendment
"reveals no legislative intent" to make reductions of sentence to
probation subject to the same time limitations as other reductions of
sentence.  764 F.2d at 615.