Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 106-70).
Kalodner, Van Dusen and Weis, Circuit Judges.
VAN DUSEN, Circuit Judge.
Movants-appellants challenge a February 28, 1974, district court order (a) denying their motions for reduction of their sentences, and (b) further amending sentences as previously amended on July 26, 1973, by deleting that portion of such July 26 order which provided that movants serve their federal sentences in state custody.
Movants were originally sentenced on July 30, 1971, to confinement for terms of 20 years each, after entering guilty pleas to Count I of an indictment (Criminal No. 106-70, D. N.J.) charging them with bank robbery in violation of 18 U.S.C. § 2113(a). While appeals filed by movants challenging these sentences were pending, they were sentenced by the New Jersey state court to prison terms of 13-19 years, following guilty pleas, for the same bank robbery and related crimes.*fn1 Such state prison terms were directed to be concurrent with the July 30, 1971, federal sentences. On June 23, 1972, this court reversed a September 21, 1971, district court order denying motions by movants (a) for reduction of sentence pursuant to F.R. Crim. P. 35 and (b) for disclosure of presentence reports, and directed that the case be "remanded for resentencing." See United States v. Janiec, 464 F.2d 126 (3d Cir. 1972). On September 15, 1972, the district court vacated the sentences of July 30, 1971 (10a, Laytham Appendix), and sentenced each movant to the custody of the Attorney General for 12 years, with the provision that each of them should be eligible for parole at any time determined by the U.S. Board of Parole pursuant to 18 U.S.C. § 4208(a)(2). At the end of the sentencing proceeding, the sentencing judge made these two statements with reference to movants' requests to be imprisoned in a New Jersey institution near their families:
A. As to defendant Janiec (16a of Laytham Appendix):
"Now, under this proviso, Mr. Lowinger [counsel for Janiec], after you have taken the necessary steps in the State Court, find out what that Judge is going to do with that concurrent sentence imposed, being imposed, and then this Court will seriously consider making this sentence a suspended sentence in light of the State sentence."
B. As to defendant Laytham (p. 7 of 9/15/72 transcript in Criminal No. 106-70, D. N.J.):
". . . Mr. Laytham: You contact the state authorities and find out, what, if anything, they are going to do about that state matter, because this Court will seriously consider giving this man a concurrent sentence pursuant to the proper notice of motion filed under Rule 35."
The court also made clear at that sentencing proceeding that counsel for movants could make application for resentencing under F.R. Crim. P. 35 within 120 days (17a, Laytham Appendix).
On January 9 and 10, 1973, motions for reduction of sentence under F.R. Crim. P. 35 by Janiec and Laytham,*fn2 respectively, were filed. On July 27, 1973, the district court filed orders dated July 26, 1973, providing, inter alia, as follows*fn3 (Janiec Appendix, 23-24):
"The matter having been opened to the Court . . . for an Order pursuant to Rule 35 . . . and it appearing that the above named defendants are both presently incarcerated under sentence of this Court and are at the same time serving a concurrent sentence pursuant to the Order of the Honorable Chester A. Weidenburner, Judge of the Union County Court of the State of New Jersey, and it being deemed in the interest of all parties that the defendants above named serve ...