(concurring in the result).
I concur in the result here insofar as it maintains the status quo by keeping Pollack under parole supervision until his original sentence is concluded in June, 1981. I believe that was the clear intent of the district court in its second order of March 25, 1980. Although that order purports to return Pollack to the “custody and control” of the United States Parole Board, which the court technically cannot do, see 18 U.S.C. § 4210, it also stated that he was to be remanded under the “original sentence.” That original sentence would have permitted Pollack to be paroled long since, and in fact the Parole Board’s recent acceptance of him as a parolee, see letter of Parole Board to U. S. Attorney (April 24, 1980) can be considered tantamount to a formal determination of his eligibility for parole. At this late date, it would be a triumph of form over substance to send him back to prison to await a formal parole decision, and neither party here requested such a disposition.
I cannot, however, concur on this record in the invalidation of the original order on the ground that the district court had no jurisdiction to enter it fourteen months after the entry of the judgment denying certiorari on the original conviction. The cases cited in the majority opinion do not give any indication that fourteen months is always an unreasonable time for the court to act on a motion to reduce a sentence. In fact, in United States v. Janiec, 505 F.2d 983 (3d Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d 427 (1975), the court upheld a ten month delay as reasonable. And United States v. Williams, 573 F.2d 527 (8th Cir. 1978), suggests the desirability of interpreting the rule allowing the court to act after the 120 day limit so that a defendant who timely files a Rule 35 motion is not unfairly penalized due to circumstances beyond his control. Id. at 529. Here the question of loss of jurisdiction due to the passage of time was raised sua sponte by this court during oral argument; we do not know what caused the trial judge to wait several months before action on the timely filed petition. Cf. United States v. Mendoza, 581 F.2d 89 (5th Cir. 1978). It is possible that circumstances of which we know nothing made such a wait reasonable. In any case, I would not declare the time lag unreasonable per se without offering the parties an opportunity to brief the question and proffer any possible explanations based on the peculiar circumstances of the case.