Seitz and Aldisert, Circuit Judges, and Latchum, District Judge.
In this petition for a writ of mandamus the Government seeks to compel United States District Judge Herbert P. Sorg to set aside an order reducing the sentence of a federal prisoner entered fifteen months after that sentence was imposed.
Respondent Richard Olds, Jr. was convicted on October 26, 1967 of the robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a). He was twenty-one years old at the time of the offense and twenty-two when convicted. On January 8, 1968, Judge Sorg entered the following judgment:
"It is adjudged that the defendant * * * is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of twenty (20) years and for a study as described in 18 U.S.C. 4208(c), the results of such study to be furnished this Court within three (3) months whereupon the sentence of imprisonment herein imposed shall be subject to modification in accordance with 18 U.S.C. 4208(b)."
A classification study report on Olds was issued by the Bureau of Prisons on April 5, 1968.*fn1 Thereafter, on April 11, 1968, Judge Sorg ordered "that the period of imprisonment heretofore imposed be reduced and that the defendant be committed to the custody of the Attorney General under the provisions of the Youth Corrections Act, 18 U.S.C. 5010(b)." This was in effect an indeterminate sentence.
Olds took no appeal. However, some three months later, on July 18, 1968, he filed a motion for reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure, which provides that a sentencing court "may reduce a sentence within 120 days after the sentence is imposed." This motion was denied on August 1, 1968.
On June 30, 1969, some eleven months after the denial of the Rule 35 motion -- and well beyond the 120 day period -- Olds made a motion "to modify and correct or vacate" the August 1, 1968 order. The relevant parts of that motion are as follows:
"1. The Court invoked the provisions of the Youthful Offenders Act after a study which produced a favorable report from the Bureau of Prisons indicating that the defendant had no criminal tendencies and was a cooperative and model prisoner. The psychiatrist of the Bureau of Prisons recommended in the report that the defendant be not incarcerated.
"2. At the time of sentence under the Youthful Offenders Act, the Court indicated that it was his intention that incarceration would be of short duration and that the defendant should have a course of treatment under said Act. It is averred that there is no course of study suitable for the peculiar situation of the defendant who was a university student.
"3. It is averred that counsel for defendant, relying upon the report, did not advise the defendant to appeal the conviction upon the basis that it would be in his interest to be supervised for a short period under the terms of the Act, and that he would be released early to pursue his university studies.
"4. The defendant is still incarcerated at the federal prison at Milan, Michigan, and is not enrolled in any course of study but is doing routine prison duties (he is prison photographer) because no proper course of study is available to him.
"5. Defendant has responsible assurance that he can pursue his university studies at the ...