APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. On Petition for Writ of Mandamus.
Seitz, Chief Judge, Van Dusen and Sloviter, Circuit Judges.
Based on his alleged participation in a conspiracy to bomb the automobile of his business associate, Lynn P. Dunn, as part of a scheme to collect the proceeds of an insurance policy on Dunn's life, appellee Kenneth Matthews was convicted for maliciously damaging a vehicle used in interstate commerce by means of an explosive; for illegally making a destructive device; for the unregistered possession of a destructive device; and for mail fraud. 18 U.S.C. §§ 2, 371, 844(i); 26 U.S.C. §§ 5861(f), 5871; 26 U.S.C. §§ 5861(d), 5871; 18 U.S.C. § 1341. On April 23, 1975 a sentence of 15 years incarceration was imposed. The convictions were affirmed by this court and on December 1, 1977 Matthews began serving his sentence.
Since June, 1976 Matthews has challenged his sentence in numerous motions which have been the subject of previous decisions by both this court and the district court, as well as one decision by the Supreme Court. In the consolidated actions presently before us the government challenges two orders of the district court relating to two of these motions. In No. 82-5198, the government directly appeals an order reducing Matthews' sentence to time served; in No. 82-3227 the government seeks to vacate that same order via a petition for a writ of mandamus; No. 82-5103 is an appeal from an order of the district court directing the United States Parole Commission to provide Matthews with a new parole hearing utilizing the parole eligibility criteria which would have been applicable at the time of the commission of the crimes for which he was convicted. We will focus only on the facts essential to the government's challenge to these orders.
THE ORDER REDUCING MATTHEWS ' SENTENCE
On August 4, 1978 Matthews filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging, inter alia, that he was denied the effective assistance of counsel because his attorney failed to file a timely motion for a reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure.*fn1 By an order dated March 12, 1979, the district court denied Matthews' motion. However, on June 9, 1980, this court vacated that order and remanded the case to the district court for an evidentiary hearing on Matthews' ineffective assistance of counsel allegation. United States v. Ferri, 624 F.2d 1091 (3rd Cir. 1980). The district court thereafter conducted a hearing and found that Matthews had been denied effective assistance of counsel. Accordingly, the court, following the procedure suggested in United States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980), vacated Matthews' sentence and, on December 2, 1980, reimposed exactly the same sentence as had been originally imposed in 1975. The purpose of the resentencing was to afford Matthews 120 days within which to file a motion to reduce his sentence pursuant to Rule 35. In March, 1981 Matthews' counsel filed two timely Rule 35 motions, one to correct and the other to reduce his sentence. On April 1, 1981, the district court granted both motions and ordered that Matthews' sentence be corrected from 15 years to 10 years*fn2 and reduced from 10 years to 9 years. The April 1, 1981 order also denied various pro se motions to correct the sentence. Although the sentence as originally imposed in 1975 provided for immediate parole eligibility under 18 U.S.C. § 4208(a)(2) (1970) (recodified in 1976 at 18 U.S.C. § 4205(b)(2)), the April 1, 1981 order directed that Matthews would be eligible for parole upon serving one-third of his sentence pursuant to 18 U.S.C. § 4205(a) (1976).
On appeal Matthews claimed, inter alia, that the district court erred in changing his parole eligibility designation. In affirming the April 1, 1981 order on November 13, 1981, we noted that the government had previously "conceded before the district court that Matthews' sentence should be modified to provide for parole pursuant to 18 U.S.C. § 4205(b) (2) (1976)." United States v. Ferri, 673 F.2d 1302 (3rd Cir. 1981) (reprinted in app. at 161a).
On December 1, 1981, the district court entered an order changing Matthews' parole eligibility status. The order stated that "the sentence imposed on December 2, 1980 and corrected by order of court on April 1, 1981 shall remain in full force and effect except that the defendant shall become eligible for parole pursuant to 18 U.S.C. § 4205(b)(2) and not pursuant to 18 U.S.C. § 4205(a)." App. at 165a. Thereafter on March 2, 1982, Matthews filed a second motion for reduction of sentence pursuant to Rule 35. On March 23, 1982, before a response was filed by the government, the district court granted the motion, ordering that Matthews' sentence be reduced to time served and that he be immediately released from custody. The government immediately sought a stay of the district court order, pending appeal to this court. This motion was not ruled upon by the district court and Matthews was released from custody on March 26, 1982.
The government contends that Matthews' March 2, 1982 motion for reduction of sentence was filed outside the time limits established by Rule 35 and that, therefore, the district court was without jurisdiction to grant the motion. Before addressing the merits of this contention, we must first determine whether we have jurisdiction to review the government's challenge to the order reducing Matthews' sentence. The government asserts that the order is "final" and presents the "necessary characteristics of independence and completeness" to be appealable under the general authority of 28 U.S.C. § 1291 and that, alternatively, review is appropriate by way of mandamus.
The government has conceded that 18 U.S.C. § 3731, the statute ordinarily invoked to authorize government appeals in criminal cases, does not authorize an appeal from an order such as the one in question.*fn3 We agree. Neither a sentencing order nor an order reducing a sentence are specifically mentioned in section 3731. As the Fifth Circuit recently stated in United States v. Denson, 588 F.2d 1112, 1125 (5th Cir.), vacated on other grounds, 603 F.2d 1143 (5th Cir. 1979) (en banc):
Section 3731 cannot be construed to authorize a Government appeal from any and every District Court order. To so construe Section 3731 would do violence to Congress' express intention to carefully identify and define the situations in which the Government might appeal.
Accord, United States v. DeMier, 671 F.2d 1200, 1204 n.12 (8th Cir. 1982). Contra, United States v. Hetrick, 644 F.2d 752, 754-55 (9th Cir. 1981).
We turn then to the government's contention that this appeal is authorized under 28 U.S.C. § 1291, which confers on the courts of appeals "jurisdiction of appeals from all final decisions of the district courts of the United States." It is well established that as a general rule "the Federal Government enjoys no inherent right to appeal a criminal judgment, and that the grant of general appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not authorize such a federal appeal." Arizona v. Manypenny, 451 U.S. 232, 246, 68 L. Ed. 2d 58, 101 S. Ct. 1657 (1981). See DiBella v. United States, 369 U.S. 121, 130, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962); United States v. Jannotti, 673 F.2d 578, 580 n.1 (3d Cir. 1982) (en banc), cert. denied, 457 U.S. 1106, 102 S. ...