c30:No. 80-1725

JAMES HUNTER, III, Circuit Judge,
dissenting.
Appellant Johnson, convicted for distribution of heroin, was sentenced to three years imprisonment followed by three years statutory parole. Pursuant to 18 U.S.C. § 3651 (1976), she served six months in jail, had the balance of the sentence suspended and was placed on probation for five years. Twenty-two months into the course of her probation she was found in violation of probation, again for possession of heroin, and the district court reimposed the remaining two and one-half years of the original sentence followed by three years statutory parole. Within 120 days after the district court reimposed the balance of the original sentence, she filed a Rule 35 motion for reduction of sentence. The district court dismissed the motion for lack of jurisdiction stating that the 120 day time limit for Rule 35 motions commenced with the imposition of the original sentence not with the reimposition of the balance of the sentence, hence the 120 day time limit had expired. The majority reverses the lower court and grants jurisdiction over appellant’s Rule 35 motion. I respectfully dissent.
The majority advances three reasons for having the 120 day limit of Rule 35 run from the reimposition of the original sentence upon the revocation of probation. Initially, the majority claims a sentencing court has two options when it decides to place a defendant on probation; to wit, “suspend entirely the imposition of the sentence and place the defendant on probation or it may impose a term of imprisonment, suspend its execution, and order probation.” (Majority opinion: page 95). The majority takes the position that the difference between these two options is “one of trifling degree.” Since it is well settled that the 120 day limit of Rule 35 commences from the imposition of sentence when made for the first time pursuant to a probation violation, the majority asserts the limit should also attach to our situation as well— when the sentence was imposed followed by probation and then reimposed pursuant to a probation violation.
There are two problems with this analysis. One, the two probation alternatives stated by the majority are not the sole options that faced the sentencing court in our situation. When a sentencing judge decides to place a defendant on some form of probation, 18 U.S.C. § 3651 outlines two methods.
The first option, as the majority points out correctly, is to suspend the sentence entirely and place the defendant on probation. The second option, is to impose the sentence on defendant, have defendant serve up to six months of that sentence, as Ms. Johnson did here, and then place the defendant on probation.
The second problem is that the difference between the two actual options is not “one of trifling degree”, but rather a legitimate basis for disparate treatment. I agree that where sentence is initially suspended entirely and then only imposed upon a subsequent probation violation the defendant should be allowed to apply for reduction of the sentence within the 120 days of Rule 35. But that is not our case. Indeed, at sentencing, Johnson was put on notice as to the finite term of the sentence imposed — three years imprisonment, three years statutory parole. If she felt the punishment too harsh she should have made a Rule 35 motion at that time. Unlike the defendant on probation whose sentence was never imposed, the appellant knew the duration of her time. She has experienced the opprobrium of the judicial authority and she should apply for a sentence reduction at that time. In addition such a requirement of timely filing advances the goal of establishing an eventual limit to the potential for amendment of sentence. As this court stated in United States v. Dansker, 581 F.2d 69 (3d Cir. 1978) “ ‘some limitation is necessary to protect the district court from continual importunities while the defendant is serving his sentence.’ ” Id. at 73 (quoting United States v. United States District Court, 509 F.2d 1352, 1356 n.6 (9th Cir.), cert. denied sub nom., Rosselli v. United States, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975). Simply, there has to be an end to when a sentence can be modified.
The second rationale advanced by the majority hinges on the requirement that “Rule 35 is intended to give every convicted defendant a second round before the sentencing judge.” (Majority opinion: page 96). Supposedly Ms. Johnson will be denied round two if she is not permitted this additional forum to address her Rule 35 motion.
I respectfully disagree. Ms. Johnson’s initial sentencing hearing — where the three years imprisonment, three years statutory parole sentence was imposed — constituted round one. Round two occurred at the hearing on the parole violation. There Ms. Johnson was given a chance to argue whether a violation actually occurred. If a violation was found she was permitted to address the harshness of the original sentence as well. Title 18, section 3653, concerning the arrest of a probationer, states in pertinent part:
As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and if imposition of the sentence was suspended, may impose any sentence which might originally have been imposed. 18 U.S.C. § 3653 (1976) (Emphasis supplied).
This statute allows the appellant a second forum. The sentencing judge at the probation revocation hearing is not constrained to reimpose the original sentence. He has, as section 3653 indicates, full latitude in sentencing. Section 3653 contemplates a flexible procedure whereby the sentencing judge can modify the original judgment in light of recent events: the seriousness of the probation infraction, or the present rehabilitation of the defendant. This constitutes the second forum the majority asserts is mandated by Rule 35.
Finally, the majority asserts that the 1966 amendments to the Rule, specifically the Advisory Committee Notes, require that the 120 day time of Rule 35 be attached to motions made after a probation violation. To me the Rule lacks clarity and the majority’s construction of the text and the notes gives the rule a construction to which I cannot subscribe.
The 1966 amendments to Rule 35 added a third sentence: “The court may also reduce a sentence upon revocation of probation as provided by law.” This amendment was treated by the Advisory Committee Notes: “The third sentence has been added to make it clear that the time limitation imposed by Rule 35 upon the reduction of a sentence does not apply to such reduction upon the revocation of probation as authorized by 18 U.S.C. § 3653.” By the majority’s construction this passage requires the 120 day limit of Rule 35 to run from the probation violation hearing.
My construction would cut the other way. The Advisory Committee Notes state specifically that the intent of the third sentence of Rule 35 was that the time limitations should not apply to actions authorized by 18 U.S.C. § 3653. To me this is the thrust of Rule 35. Any Rule 35 motions made upon the reimposition of sentence after a probation hearing must be raised at the hearing or not at all. This construction, in my view, squares completely with the discretion afforded the sentencing judge by section 3653.
For the reasons stated above I would affirm the district court’s dismissal of this action.
. As the majority points out, 18 U.S.C. § 3651 also allows the sentencing court to impose a sentence and then suspend the execution of the sentence entirely. This option is not presented by the facts below however.
. The complete text of 18 U.S.C. § 3651 reads:
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months, any court having jurisdiction to try offenses against the United States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.
The court may revoke or modify any condition of probation, or may change the period of probation.
The period of probation, together with any extension thereof, shall not exceed five years.
While on probation and among the conditions thereof, the defendant-
May be required to pay a fine in one or several sums; and
May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and
May be required to provide for the support of any persons, for whose support he is legally responsible.
The defendant’s liability for any fine or other punishment imposed as to which probation is granted, shall be fully discharged by the fulfillment of the terms and conditions of probation.
. The complete text of 18 U.S.C. § 3653 reads:
When directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable.
Whenever during the period of his probation, a probationer heretofore or hereafter placed on probation, goes from the district in which he is being supervised to another district, jurisdiction over him may be transferred, in the discretion of the court, from the court for the district from which he goes to the court for the other district, with the concurrence of the latter court. Thereupon the court for the district to which jurisdiction is transferred shall have all power with respect to the probationer that was previously possessed by the court for the district from which the transfer is made, except that the period of probation shall not be changed without the consent of the sentencing court. This process under the same conditions may be repeated whenever during the period of his probation the probationer goes from the district in which he is being supervised to another district.
At any time within the probation period, the probation officer may for cause arrest the probationer wherever found, without a warrant. At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. Such warrant may be executed in any district by the probation officer or the United States marshal of the district in which the warrant was issued or of any district in which the probationer is found. If the probationer shall be arrested in any district other than that in which he was last supervised, he shall be returned to the district in which the warrant was issued, unless jurisdiction over him is transferred as above provided to the district in which he is found, and in that case he shall be detained pending further proceedings in such district.
As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.

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