In this case, the defendant contends that the government broke its plea bargain not to make a sentence recommendation when it opposed the defendant's Rule 35, F.R.Crim.Proc.,
Since we are without power to entertain this appeal if the motion for reduction of sentence was not filed within 120 days, United States v. Mehrtens, 494 F.2d 1172, 1175, n. 1 (5 Cir. 1974); United States v. Granville, 456 F.2d 1073 (5 Cir. 1972), we have determined, sua sponte, that a discussion of jurisdiction is appropriate. On August 26, 1977, the defendant pled guilty to various criminal indictments brought against him. On Tuesday, December 27, 1977, the defendant filed his Rule 35, F.R.Crim.Proc., motion for reduction of sentence. According to Rule 45, F.R.Crim.Proc.,
We find Ewing distinguishable from the present case because we hold that the government did not breach its bargain not to make a sentence recommendation. In Johnson's Rule 35 motion, he argued that he was in need of psychiatric treatment and such treatment was unavailable at his place of incarceration, Terre Haute, Indiana. Johnson suggested that if his sentence were reduced to five years he would be eligible for psychiatric care at the federal facility at Lexington, Kentucky. The government responded that if Johnson is in need of psychiatric care it is available at Terre Haute.
The government agreed not to make a sentence recommendation. It did not agree to stand mute in the face of misinformation concerning the availability of treatment at various federal correctional facilities. See United States v. Miller, 565 F.2d 1273 (3 Cir. 1977). We therefore conclude that the government did not breach its bargain not to make a sentence recommendation. United States v. Ewing, supra, does not give the defendant the right to present an unopposed Rule 35 motion. The government violates Ewing only when its opposition violates the essence of the plea bargain.
Rule 35, F.R.Crim.Proc.
This order was promulgated under authority given the President by 5 U.S.C. § 6103. Sunday, December 25, 1977, was Christmas, a legal holiday. 5 U.S.C. § 6103(a).