concurring.
This case raises only one issue: whether a District Court has power under Rule 35 of the Federal Rules of Criminal Procedure to reduce a sentence when more than 120 days had elapsed since it received from the appellate court a mandate affirming the judgment against defendant, although only 50 days had elapsed when the sentenced defendant filed an appropriate motion for reduction, and the District Court’s delay in action was due to circumstances beyond defendant’s control.
The facts of this case are simple. September 7, 1976 the District Court received the mandate of this court affirming the judgment of conviction and the sentence of defendant. Fifty days later, October 27, 1976, defendant filed a motion with the District Court for reduction of his sentence. The District Judge failed to act within 120 days of September 7,1976, that is, by January 5, 1977. January 31, 1977 the District Judge filed an order denying the motion. Therein he stated that the delay was “Due to a variety of circumstances beyond the Defendant’s control;” that those circumstances were that the probation office did not complete its report until late December, and that “in dealing with a particularly heavy trial schedule during this period, the Court simply did not act within” 120 days; and that the court “felt constrained by the language and apparent intent of Rule 35” to deny defendant’s motion but “If this Court had the jurisdiction to act on Defendant’s motion for reduction of sentence, it would grant a reduction.”
So far as here material, Amended Rule 35, effective July 1, 1966, provides that:
. “The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal.”
Except for the substitution of the number 120 for the number 60 in the two places where it occurs, Amended Rule 35 is precisely the same as Rule 35 was from the time it became effective on March 21,1946. See 327 U.S. 856. In its Note explaining the change from 60 to 120, the Advisory Committee on Rules of Criminal Procedure, (see United States Code Annotated Title 18, Rule 35, p. 344) stated that:
The second sentence has been amended to increase the time within which the court may act from 60 days to 120 days. The 60-day period is frequently too short to enable the defendant to obtain and file the evidence, information and argument to support a reduction in sentence. Especially where a defendant has been committed to an institution at a distance from the sentencing court, the delays involved in institutional mail inspection procedures and the time required to contact relatives, friends and counsel may result in the 60-day period passing before the court is able to consider the case.
In asserting that the 60-day period allowed in the original Rule 35 was intended “to enable the defendant to obtain and file the evidence,” but that “the 60-day period was frequently too short,” the experienced judges, practitioners, and professors who *1294constituted the Advisory Committee showed that they were familiar with, and approved, the prevailing judicial view that in its original form, and despite the letter of its text, Rule 35 permitted a court to act upon a defendant’s motion filed at any time within the 60-day period. This construction of old Rule 35 was implicit in pre-1966 cases such as Judge Hutcheson’s opinion written for this court in Johnson v. United States, 5th Cir., 235 F.2d 459, 461, as well as in Dodge v. Bennett, 1st Cir., 335 F.2d 657 (1964).
The year before Rule 35 was amended the situation was correctly summarized by a leading authority, James William Moore, in Moore’s Federal Practice (2d ed., 1965) Vol. 8A, par. 35.02[a] in the following words:
It should be noted that the period is not defined as the time within which the motion may be made, but is rather the time within which the court may act. Technically, this permits the court’s failure to act upon a motion to preclude relief. The present language of the Rule is satisfactory as a limitation upon the court’s power to act sua sponte, but it should be rephrased to permit the court to act upon a motion of defendant as long as it is made within the period. Despite the deficiency in the Rule, however, it appears that the latter interpretation is followed by most courts, and acquiesced in by most prosecutors, as a matter of salutary practice. (Emphasis in original.)
The year after the amendment became effective, but in a case involving Rule 35 as it stood originally, Judge Hamley, in Leyvas v. United States, 9th Cir. 1967, 371 F.2d 714, 719, correctly observed that:
While Rule 35 states that the court may reduce a sentence “within 60 days,” the rule generally has been interpreted as relating that time period to the filing of a motion for such relief. See Dodge v. Bennett, 1 Cir., 335 F.2d 657; United States v. Koneski, 4 Cir., 323 F.2d 862; Johnson v. United States, 5 Cir., 235 F.2d 459, 461.
The Note of the Advisory Committee adopting the settled interpretation of original Rule 35 should govern the interpretation of Amended Rule 35 which uses, except for numbers, precisely the same text. In other words, Amended Rule 35, despite what it seems to say, gives a District Court continuing jurisdiction of any motion filed by defendant within the prescribed 120 days.
A contrary interpretation, based upon the letter of Rule 35, would be most unjust to a diligent defendant whose motion had been left without action by an absent, or inattentive, or overburdened, or otherwise preoccupied judge. It would turn a rule designed to serve the needs of convicts into a device for reducing the jurisdiction and work load of judges.
Our pride in our calling as judges ought not to blind us to the risks incurred by those whose cases come before the less alert, diligent, and conscientious of our brethren, — or even before us when we are not performing at our highest levels.
We regard a construction of Rule 35 which permits the District Court to pass at any time upon a motion filed by defendant within any part of the 120-day period as nothing but the converse of the “familiar rule” of construction that “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Church of Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). Cf. United States v. American Trucking Associations, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Connell Construction Co., Inc. v. Plumbers & Steamfitters Local Union No. 100 et al., 421 U.S. 616, 628, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975); Philbrook v. Glod-gett, 421 U.S. 707, 714, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975); Muniz v. Hoffman, 422 U.S. 454, 469, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975). The case at bar is one where a thing is not within the letter of the rule and yet within the rule, because within its spirit and within the intention of its makers.
Our liberal interpretation of Rule 35 is in accord with the weight of authority. United States v. Stollings, 4th Cir., 516 F.2d 1287 (1975); United States v. United States *1295District Court, 9th Cir., 509 F.2d 1352 (1975); United States v. Janiec, 3rd Cir., 505 F.2d 983 (1974); United States v. Ourso, E.D.La., 417 F.Supp. 113 (1976).
There is no justification for the opinion of the majority of this panel laying down prospectively a legislative limitation which would leave a future defendant who filed his Rule 35 motion after 60 but before 120 days without an absolute right to have a judge pass upon that motion.
We have no authority to legislate. We may, of course, construe a rule, but the majority’s suggested limitation is boldfaced legislation not construction.
The majority’s suggestion contradicts the explicit intent of the rulemakers as shown in the Note of the Advisory Committee.
The majority’s proposal lacks any support in this or any other circuit, and there is no reason to suppose that it carries any particular weight when it comes from a mere panel of a multi-judge circuit.
The majority itself confesses that its proposal is inadequate to cover all cases. No reasonable judge would apply the main directive of the proposal but would rely upon its exceptions, were he faced with a case where a convict filed on the 61st day, and the motion lay unacted upon because on the 62nd day the judge before whom it was filed died, or went on a vacation, or became occupied in a lengthy antitrust case, or could not make up his mind quickly.
In short, defendant in this case has proceeded with the diligence prescribed to invoke the jurisdiction of the District Court, and defendant is entitled to have his motion decided on its merits. Nor should we legislatively preclude future defendants who file Rule 35 motions within the prescribed 120 days.