
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  __________________          No. 92-2215                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     HAKEEM FAHM,                                Defendant, Appellant.                                                                                      ____________________          No. 93-1012                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     HAKEEM FAHM,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________               Randy Olsen, with  whom David N. Cicilline was  on brief for               ___________             __________________          appellant.               Edwin J. Gale, United States Attorney, for appellee.               _____________                                                                                      ____________________                                   January 5, 1994                                                                                      ____________________                    CYR, Circuit Judge.   After failing to appear  for sen-                    CYR, Circuit Judge.                         _____________          tencing on credit-fraud charges in January 1991 before the United          States District Court for the District of Rhode Island, appellant          Hakeem  Fahm was  sentenced  to  a  twenty-month prison  term  in          September 1992.   Three months  later, the district  court recon-          sidered the original sentence sua sponte and imposed a twenty-one                                        ___ ______          month  prison term.   We  deny  Fahm's appeal  from the  original          sentence and conclude that the district court  was without juris-          diction to "correct" it under Fed. R. Crim. P. 35(c).                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Fahm pled guilty in Rhode Island federal district court          on November 29, 1990,  to credit card fraud and  conspiracy.  See                                                                        ___          18 U.S.C.     1029(a)(2) (fraudulent  use of  unauthorized access          devices) and (b)(2)  (conspiracy to violate   1029(a)(2)).   Fahm          was twenty-one years  of age at  the time.   Less than one  month          later, while  released pending  sentencing, he  was arrested  for          obstructing a  Rhode Island police  officer in connection  with a          motor  vehicle violation, whereupon he  fled, failed to report to          his pretrial  services officer,  and violated  bail by  absenting          himself from the federal sentencing hearing scheduled for January          1991.  Shortly thereafter  Fahm committed the crime  of attempted          credit card  fraud, for which  he was convicted and  sentenced in          the United  States District Court  for the District  of Delaware.                                          2          After serving  a five-month sentence  on the latter  charge, Fahm          was returned  to the District  of Rhode Island for  sentencing on          the offenses of conviction.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Appeal from the Original Sentence.          A.   The Appeal from the Original Sentence.               _____________________________________               1.   Reduction for Acceptance of Responsibility                    Reduction for Acceptance of Responsibility                    __________________________________________                      3E1.1(a) (Nov. 1990).                      3E1.1(a) (Nov. 1990).                    _____________________                    Notwithstanding his abscondence  and subsequent federal          conviction while awaiting  sentencing on the offenses  of convic-          tion,  Fahm frivolously asserts that the district court committed          clear error,  see United States  v. Royer,  895 F.2d 28,  29 (1st                        ___ _____________     _____          Cir. 1990),  by denying him a two-level reduction for "acceptance          of responsibility" pursuant to  U.S.S.G.   3E1.1(a) (Nov.  1990).          We find it  quite unremarkable that Fahm's  belated protestations          of remorse fell on  deaf ears in  the district court ("I  frankly          don't believe  . . . that [the defendant is]  sorry. . . .).  See                                                                        ___          United  States v.  O'Neil,  936  F.2d 599,  600  (1st Cir.  1991)          ______________     ______          (district court may look to later conduct to  determine sincerity          of defendant's claimed acceptance of responsibility).               2.   Upward Departure for Underrepresented Criminal History               2.   Upward Departure for Underrepresented Criminal History                    ______________________________________________________                      4A1.3 (Nov. 1991).                      4A1.3 (Nov. 1991).                    ___________________                    Next,  Fahm  challenges  the  upward departure  imposed                                          3          pursuant to U.S.S.G.   4A1.3,1 which provides in relevant part:                    If  reliable information  indicates that  the                    criminal history category does not adequately                    reflect  the seriousness  of the  defendant's                                 ___________  __ ___  ___________                    past criminal conduct or the likelihood  that                    ____ ________ _______ __ ___ __________  ____                    the defendant  will commit other  crimes, the                    ___ _________  ____ ______ _____  ______                    court may  consider imposing  a sentence  de-                    parting from the  otherwise applicable guide-                    line range . . . .          (Emphasis  added.)  Ignoring the overburden,  Fahm argues that no          unusual circumstances distinguish his case from the "mine-run for          th[e]  offense[s]" of conviction.  United States v. Aguilar-Pena,                                             _____________    ____________          887 F.2d 347, 350 (1st Cir. 1989).                    a.   The Decision to Depart.                    a.   The Decision to Depart.                         ______________________                    The  original  presentence report  (PSR)  recommended a          six-to-twelve month guideline sentencing range (GSR), based on an          adjusted base offense level (ABOL) of ten and a level  I criminal          history category (CHC).   The PSR addendum prepared  prior to the          sentencing hearing held on  September 30, 1992 ("first hearing"),          proposed a level II CHC based on Fahm's intervening Delaware sen-          tence.  See U.S.S.G.    4A1.2 cmt. 1.  At the  first hearing, the                  ___          district court advised Fahm that it intended to depart to CHC IV,          because (i)  Fahm committed the  Delaware offense while  on bail,          see id.  at   4A1.3; United  States v.  Calderon, 935 F.2d  9, 12          ___ ___              ______________     ________          (1st  Cir. 1991) (commission  of offense while  on release repre-          sents  breach  of  commitment to  court),  (ii)  CHC  II underre-                                        ____________________               1The revised presentence report recommended criminal history          category II, based  on Fahm's similar Rhode Island  state convic-          tion for fraudulent use of  credit cards and his "prior sentence"          on the federal credit-fraud offense in Delaware.  See U.S.S.G.                                                               ___          4A1.1(b), 4A1.2(a)(1),(4), cmt. 1.                                          4          presented his actual criminal conduct, and (iii) the CHC would be          higher  were any  of  several pending  state and  federal charges          later  to result in  conviction, see U.S.S.G.    4A1.3(e); United                                           ___                       ______          States v. Figaro, 935 F.2d 4, 7 (1st Cir. 1991).2          ______    ______                    The decision to depart is subject to bifurcated review.          First,  all  "quintessentially  legal"   rulings  underlying  the          decision  to depart,  such  as  whether  the  guideline  language          permits or forbids  departure for the kinds of  reasons relied on                                                _____ __  _______          by the sentencing  court, are subject to plenary  review.  United                                                                     ______          States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993).   Second, in          ______    ______          reviewing  its "judgment  call"  as  to  whether  the  particular                                                                 __________          circumstances  warrant  departure,  id.  at 951-52,  "appropriate          _____________                       ___          respect" is due the sentencing court's "superior 'feel' for the .          . . case."   United States v. Ramirez, No. 93-1403, slip. op at 7                       _____________    _______          (1st Cir. Dec. 9, 1993).                                        ____________________               2Fahm  does not argue that the original sentence contravened          U.S.S.G.   4A1.3, which instructs the sentencing court to consid-          er  the adequacy of  the next higher (or  lower) CHC, rather than          leapfrogging.  See United States v. Aymelek, 926 F.2d 64, 70 (1st                         ___ _____________    _______          Cir. 1991)  (noting that  sentencing court  is "specifically  in-          structed  to use  'as  a  reference, the  guideline  range for  a          defendant with a  higher or lower  criminal history category,  as          applicable'"  (quoting U.S.S.G.   4A1.3, p.s.)); United States v.                                                           _____________          Polanco-Reynoso,  924 F.2d 23,  25 (1st  Cir. 1991)  (approving            _______________          4A1.3 departure to next CHC).   Since Fahm's one oblique allusion          to the leapfrogging methodology  appears in a parenthetical to  a          case citation, unaccompanied  by argumentation, we adhere  to our          settled rule that  "issues adverted to  in a perfunctory  manner,          unaccompanied  by  some effort  at  developed argumentation,  are          deemed waived."   United States v.  Zannino, 895 F.2d 1,  17 (1st                            _____________     _______          Cir.),  cert. denied, 494  U.S. 1082 (1990)  (citations omitted).                  _____ ______          See also United  States v. Emery, 991 F.2d 907, 913 n.9 (1st Cir.          ___ ____ ______________    _____          1993) (  4A1.3 departure above CHC VI).                                          5                    (i)  Legal Rationale for Departure.                    (i)  Legal Rationale for Departure.                         _____________________________                    The guidelines explicitly countenance upward departures          pursuant to U.S.S.G.    4A1.3, based on the  rationale adopted by          the district court  in this case:  "[T]he  criminal history score          is  unlikely to  take  into  account all  the  variations in  the          seriousness of criminal  history that may occur  . . . . particu-                                                                   ________          larly . . . in  the case of younger defendants  (e.g., defendants          _____                                            ____          in their early twenties or  younger) who are more likely to  have          received repeated lenient treatment, yet who may actually pose  a          greater  risk  of  serious  recidivism  than  older  defendants."          U.S.S.G.   4A1.3, backg'd. (emphasis added).  Given Fahm's youth,          the similarity and  contemporaneity of his criminal  conduct, and          the  fact that  he had  but one  countable "prior  sentence," see                                                                        ___          U.S.S.G.    4A1.2 cmt. 1, the district court correctly determined          that  departure  was  permissible  pursuant  to     4A1.3(d),(e),          provided reliable  information demonstrated that CHC  II signifi-          cantly underrepresented the seriousness of Fahm's actual criminal          history and the risk of recidivism.  Id.                                               ___                    (ii) Factual Grounds for Departure.                     (ii) Factual Grounds for Departure.                          _____________________________                    Were  we called  upon to  do  so, we  would review  the          sentencing court's findings of fact  for clear error, Rivera, 994                                                                ______          F.2d at 950,  but Fahm challenges neither the  reliability of the          criminal history evidence  nor the factual findings  on which the                                          6          departure decision was based.3                    Nor  can we fault the district court's "judgment call,"          see  United States  v. Diaz-Villafane,  874 F.2d  43,  49-50 (1st          ___  _____________     ______________          Cir.),  cert. denied, 493  U.S. 862 (1989),  that Fahm's criminal                  ____  ______          history  warranted an  upward departure  pursuant  to U.S.S.G.             4A1.3(d),(e),  a ruling we review with the considerable deference          due  the  sentencing court's  "special  competence" and  superior          "feel" in the circumstances of the particular case, Ramirez, slip                                                              _______          op. at 7;  Rivera, 994  F.2d at  951-52.  In  far less  egregious                     ______          circumstances we  have sustained  an upward  departure where  the          offenses of  conviction were  committed while  the defendant  was          awaiting final  disposition  of  a similar  state  charge.    See                                                                        ___          Calderon, 935  F.2d at 12.   Fahm committed these  offenses while          ________          awaiting disposition of similar Massachusetts charges (larceny of          an automobile and obtaining property under false pretenses) which          had  yet to  result  in  conviction.   See  U.S.S.G.    4A1.3(e).                                                 ___          Furthermore, while  awaiting sentencing on the  instant offenses,          he committed  a similar  credit-fraud  felony in  Delaware.   See                                                                        ___          United States v. Moore, 931  F.2d 3, 4 (1st Cir. 1991)  (offenses          _____________    _____                                        ____________________               3The  district  court  grounded its  decision  to  depart on          information contained in the PSR and its addenda, derived primar-          ily  from public records,  that Fahm recently  engaged in similar          adult criminal conduct that had not resulted in conviction, see                                                                        ___          4A1.3; Ramirez, slip op. at 8, and that he had committed offenses                 _______          while released pending the disposition  of other charges.  As for          the evidence that Fahm absconded before sentencing on the instant          charges, the public record is  irrefutable.  See United States v.                                                       ___ _____________          Garcia,  978 F.2d  746, 749  (1st Cir.  1992) (upholding    4A1.3          ______          departure where  there was  no dispute  that defendant  committed          offenses after absconding on another charge).  There was no clear          error in the factual findings underlying the decision to depart.                                          7          involving  "the same sort  of dishonesty and  misappropriation of          other  people's property"  are "similar").    Thus, the  district          court reasonably  concluded that  CHC II  underrepresented Fahm's          actual criminal history, a finding well supported, inter alia, by                                                             _____ ____          the similar  credit-fraud  related charges  committed within  two          years of the  instant offenses, evidencing  a serious pattern  of          recidivism  not  reflected in  the  conventional CHC  calculation          under  U.S.S.G.    4A1.1 and  4A1.2.  See  Figaro, 935  F.2d at 7                                                ___  ______          ("the recency of  a prior offense may be  considered an indicator          of increased likelihood of  recidivism, exacerbating the serious-          ness  of  a  defendant's criminal  history.");  United  States v.                                                          ______________          Aymelek, 926 F.2d 64, 70 (1st Cir. 1991).          _______                    b.   The Degree of Departure.                     b.   The Degree of Departure.                          _______________________                    The  reasonableness  of  the  degree  of  departure  is          reviewed  with "appropriate respect"  for the  sentencing court's          "special  competence," Rivera, 994  F.2d at 952,  and substantial                                 ______          deference  to its weighting of departure factors properly consid-          ered under  the guidelines.   See Williams v. United  States, ___                                        ___ ________    ______________          U.S. ___,  ___, 112 S. Ct. 1112, 1121 (1992).                    The  criminal conduct alleged in the four cases pending          against Fahm  in Massachusetts and  Rhode Island, as well  as the          federal charge  pending in the  District of Rhode Island,  see 18                                                                     ___          U.S.C.    3146(a)(1) (failure  to  appear for  sentencing), which          were  not reflected in  the CHC calculation,  constituted grounds          which, by analogy,  see Aymelek, 926 F.2d at  70 (using analogies                              ___ _______          for   4A1.3(e) departures), plainly indicated that neither CHC II                                          8          nor III adequately  reflected the seriousness of  Fahm's criminal          conduct.   See U.S.S.G.    4A1.3(e) ("prior,"  "similar" criminal                     ___          conduct not yet resulting in conviction appropriate for consider-          ation  in departure  decision); Diaz-Villafane,  874  F.2d at  50                                          ______________          (pending charges not used in CHC calculation may be considered in          departure decision); United States v. Brown, 899 F.2d 94, 98 (1st                               _____________    _____          Cir.  1990) (nature of conduct involved in pending charges, based          on  record documentation, supports    4A1.3 departure).   But cf.                                                                    ___ ___          U.S.S.G.    4A1.3,  p.s. (prior  arrest  record alone  not  to be                                                          _____          considered  under   4A1.3);  Rivera,  994  F.2d  at  949  (citing                                       ______          Williams, ___ U.S. at ___, 112 S. Ct. at 1117).4          ________                                        ____________________               4Although "mechanistic bean counting" is an inadequate guide          to the reasonableness of departure rulings, see  United States v.                                                      ___  _____________          Emery, 991 F.2d 907, 913-14  (1st Cir. 1993) (where "the sentenc-          _____          ing court[]  [has]  articulated  grounds  for  departing  [which]          permit us adequately  to assess the reasonableness  of the depar-          ture. . . . [n]o more  is exigible."), we  note that the  reason-          ableness of the district court's decision  to depart to CHC IV is          strongly supported by the unadjudicated state and federal charges          pending  against  Fahm,  and by  analogous  criminal  conduct not          reflected in the original CHC  calculation.  There are two felony          charges  pending against Fahm in Massachusetts, dating from 1988,          for larceny  of an automobile and obtaining  property under false          pretenses, see Mass. Gen. L. ch. 266    27A(a), 30, 34.  Further,                     ___          after Fahm defaulted on these two charges, a warrant issued; this          default conduct is  analogous to a federal charge  of flight from          prosecution, see 18 U.S.C.   1073(1); see also Aymelek,  926 F.2d                       ___                      ___ ____ _______          at 71 (federal law governs classification of criminal conduct for          guideline  sentencing purposes).   Moreover,  there  is a  felony          charge  outstanding  against  Fahm  for  violating  Rhode  Island          banking laws in 1990, see R.I. Gen. L.   19-19-2 (issuing fraudu-                                ___          lent  check),  and another  1990  Rhode Island  state  charge for          obstructing a police officer with  the use of an alias,  see R.I.                                                                   ___          Gen. L.   11-32-1 (up to one year in prison), see also Moore, 931                                                        ___ ____ _____          F.2d at 5 n.3 (minor  convictions, in aggregate, can show pattern          of conduct supporting finding of recidivism).               Yet pending as  well is a federal felony  charge for failure          to  appear at  the sentencing  hearing  originally scheduled  for          January, 1991.   See  18 U.S.C.   3146(a)(1).   Finally,  the CHC                           ___          calculation in  the PSR did  not reflect that Fahm  committed the                                          9                    The grave signs of recidivism relied on by the district          court  likewise weighed heavily in favor  of a substantial upward          departure  as well.5   The pending Massachusetts  false pretenses          and larceny  charges  and the  Rhode  Island banking  law  charge          involved alleged conduct similar to the instant credit card fraud          offense, and Fahm's flight to avoid prosecution in this case is a          carbon copy of his  uncharged conduct of failing to answer to the          Massachusetts charges following release pending prosecution.  See                                                                        ___          U.S.S.G.   4A1.3(e), p.s.   The Rhode Island  obstruction charge,          based  on Fahm's  alleged use  of an  alias to  mislead a  police                                        ____________________          offenses  of conviction after  having defaulted (i.e.,  failed to                                                           ____          appear) on  the Massachusetts  charges, which  would warrant  two          additional CH points.  See U.S.S.G.   4A1.1(d) (add two points if                                 ___          instant offense committed while on bail).               These pending state  and federal charges, combined  with the          two-point   4A1.1(d) increase and the  analogous uncharged crimi-          nal  conduct, would aggregate eight additional criminal points at          a minimum.   Ascribing  even a single  criminal history  point to          each pending state charge, and one to the pending federal charge,          would result  in five  points.   See U.S.S.G.    4A1.1(a),(b),(c)                                           ___          (assigning, respectively,  three points for sentence  above thir-          teen months, two points for sentences between  three and thirteen          months, and  one point  for under three  months).   Neither these          pending  charges,  nor  the analogous  conduct  (amounting  to an          additional one  point),  nor the  two-point   4A1.1(d)  increase,          were taken into  account in the  CHC calculation, which  totalled          three  criminal history  points.   Thus, at  its lowest  range (8          points), the pending  charges, analogous conduct, and  the   4A1-          .1(d) increase,  combined with  the three  points originally  as-          signed, would indicate  a level V CHC.   See U.S.S.G.   5A  (sen-                                                   ___          tencing table).               5At the first hearing, the district court found:               You haven't  spent much  time in jail  in spite  of the               number of  brushes you've had  with the law,  and maybe               that's the  problem . . .  but at age  [21] . . .  it's               about time . . .  for you to accept  responsibility for               what you  did and  pay the penalty  . . . I'm  going to               make an upward departure in this case.                                          10          officer, occurred while he was awaiting sentencing on the instant          offense  as well, see U.S.S.G.   4A1.3(d) (committing crime while                            ___          awaiting sentencing is a factor to be weighed under    4A1.3), as          did the  pending charge for  failing to appear for  sentencing in          Rhode  Island federal  district  court.   These  charges and  the          uncharged analogous conduct all involved criminal activity within          two years of the offenses of conviction.  See U.S.S.G.   4A1.1(e)                                                    ___          (two-point  criminal  history  increase  to  reflect  recency  of          offense); Figaro, 935  F.2d at 7 (treating recency  of offense as                    ______          evidence  of recidivism) (  4A1.3 departure).  The district court          further found that  Fahm had been treated leniently  in the past,          and had persisted    before  and since the offenses of conviction             in the same pattern of credit fraud.                    Given  Fahm's  significantly  underrepresented criminal          history and his serious  recidivism, as evidenced by  the recency          of his criminal  conduct and his commission of  criminal offenses          while  released awaiting prosecution on other charges, the degree          of the departure  imposed by the  district court was  reasonable.          See generally United States v. Joan, 883 F.2d  491, 496 (6th Cir.          ___ _________ _____________    ____          1989) (adopting Diaz-Villafane three-step analysis and  assigning                          ______________          as  factors  in  determining reasonableness  of  departure:   the          seriousness of  the past  conduct, recidivism  risk, conduct  not          resulting in convictions, previous  lenient treatment, and deter-          rent effect) (combined   4A1.3 and   5K2.0 departure).          B.   Reconsideration of Original Sentence.          B.   Reconsideration of Original Sentence.               ____________________________________                    At the September 30 sentencing, after overruling Fahm's                                          11          objection to the   4A1.3 departure ruling and denying his request          to stay "imposition" of sentence, the court immediately proceeded          to  impose  the  twenty-month  prison  sentence  but  nonetheless          allowed defense counsel two weeks within which  to submit written          opposition  to the  departure ruling.   At the  second sentencing          hearing, on December 22, the district court declined to reconsid-          er its   4A1.3 departure  ruling, then indicated that it intended          to correct an earlier oversight  by increasing Fahm's ABOL by two          levels for  unlawful flight  from prosecution.   Defense  counsel          objected that the  court lacked jurisdiction to  reconsider under          Fed. R. Crim.  P. 35 but made no explicit reference to the seven-          day limitation period in Rule 35(c).  See Fed. R. Crim. P. 35(c);                                                ___          infra at  p. 15.   The court  then increased the  original prison          _____          sentence to twenty-one months, bringing it within the revised 21-          to-27 month GSR.                    On appeal, Fahm  claims that the district  court lacked          jurisdiction  to  increase  the sentence  originally  imposed  on          September 30.  See Fed.  R. Crim. P. 35(c).   The government,  on                         ___          the other hand,  characterizes the December 22 hearing  as a mere          continuation  of the first hearing, and accordingly contends that          the seven-day limitation period in Rule 35(c) was not implicated.          Alternatively,  the  government  argues that  the  district court          possessed  inherent power  to  reconsider  the original  sentence          notwithstanding the limitation period in Rule 35(c).  We conclude          that neither government theory is tenable.                                          12               1.   Fed. R. Crim. P. 35(c)(1991).                 1.   Fed. R. Crim. P. 35(c)(1991).                      ___________________________                    The district  court judgment  and docket  entry plainly          reflect  that the twenty-month  prison sentence was  "imposed" on          September 30.   See United States  v. Morillo, ___ F.3d  ___, No.                          ___ _____________     _______          93-1388,  slip op.  at 11  n.8  (1st Cir.  Nov. 8, 1993)  (noting          likelihood  that "imposition of sentence," within meaning of Rule          35(c), occurs on  date judgment entered) (dictum)  (citing United                                                              ______ ______          States v. Zuleta-Molina, 840 F.2d  157, 158 n.1 (1st Cir. 1988));          ______    _____________          United  States v. Carr, 932 F.2d 67, 69 (1st Cir.), cert. denied,          ______________    ____                              ____  ______          112 S.  Ct. 112 (1991); see also Fed.  R. Crim. P. 32(b)(1) ("The                                  ___ ____          judgment  shall  be  signed  by  the judge  and  entered  by  the          clerk.").  Moreover, the September 30 hearing transcript reflects          that  the court pronounced the original sentence after overruling                                                           _____ __________          Fahm's objection to the   4A1.3 departure.  Later in the hearing,          defense counsel  sought to  stay imposition  of sentence  pending                                           __________          submission  of opposition to the   4A1.3 departure.  Although the          court categorically  denied a  stay     leaving its  twenty-month          sentence in  place    it  allowed defense counsel time  to submit          written opposition.   The district  court record thus  belies any          interpretation  that sentence  was  not imposed  on September 30.          Consequently,  we must decide  whether the original  sentence was          subject  to reconsideration by the district court on December 22,          well beyond the time allowed under Rule 35(c).                    Rule 35(c) states:                    (c)   Correction  of  Sentence by  Sentencing                    (c)   Correction  of  Sentence by  Sentencing                    Court.  The court, acting within 7 days after                    Court              ______                    the  imposition of  sentence,  may correct  a                         __________                    sentence  that was  imposed  as  a result  of                                          13                    arithmetical,  technical,   or  other   clear                    error.          (Emphasis  added.)  The advisory committee note explains that new          Rule 35(c) recognizes the power  of a sentencing court to correct          certain  types of sentencing errors "discovered shortly after the          sentence is  imposed."  Fed.  R. Crim. P. 35(c)  advisory commit-          tee's note  (1991 amendment).  Compare  Carr, 932 F.2d  at 71 n.5                                         _______  ____          (pre-Rule 35(c) case).   The relevant  case law likewise  compels          the conclusion  that the  district court  lacked jurisdiction  to          correct  its  original  sentence  beyond  the  limitation  period          prescribed  in Rule  35(c).    Morillo, slip  op.  at 10  ("[Rule                                         _______          35(c)'s]  interval constitutes a limitation . . . and the limita-          tion is  absolute") (dictum); United  States v. Turner,  998 F.2d                                        ______________    ______          534, 536 (7th Cir.), cert. denied, 62 U.S.L.W. 3409 (1993).                                 ____  ______               2.   Inherent Power.               2.   Inherent Power.                    ______________                    The  government  alternatively   contends,  Rule  35(c)          notwithstanding, that  the district court possessed  the inherent          power to reconsider Fahm's ABOL to correct an obvious  oversight.          The government relies on United States v. Rico, 902 F.2d 1065 (2d                                   _____________    ____          Cir.), cert.  denied, 498 U.S.  943 (1990), and United  States v.                 ____   ______                            ______________          Cook, 890 F.2d 672 (4th  Cir. 1989).6  Upon careful consideration          ____          of  the rule, the  advisory committee's  note, and  relevant case          law, we conclude that the court had no inherent power to increase          its original sentence.                                        ____________________               6See also Carr,  932 F.2d at 71 (pre-Rule  35(c) case recog-                ___ ____ ____          nizing limited  "inherent  power" to  reconsider sentence  during          appeal period).                                          14                    The 1991 amendment to Rule 35(c) was intended to codify          the result reached in Rico and Cook but requires as well that the                                ____     ____          sentencing  court act  within the  time frame  prescribed  in the                            ___  ______          rule, see Morillo, slip op. at 11 n.8, so as to:  (i) "reduce the                ___ _______          likelihood of jurisdictional questions in the event of an appeal"          from the original  judgment; (ii) "provide  the parties . . .  an          opportunity  to address [on appeal] the court's correction of the          sentence, or lack  thereof"; and (iii) "reduce  the likelihood of          abuse of the rule by limiting its application to acknowledged and          obvious errors  in sentencing," Fed.  R. Crim. P.  35(c) advisory          committee's  note (1991 amendment).7  See  United States v. Ross,                                                ___  _____________    ____          ___ F.3d ___, 1993 WL 452716 at *5 (7th Cir. 1993); United States                                                              _____________          v. Daddino, 5 F.3d 262, 265  (7th Cir. 1993) (per curiam) (exclu-             _______          sive  authority for  correction of  obvious  judicial errors  and                                                       ________          omissions derives from Rule 35(c)).8                    Since the  narrow window  of opportunity  allowed under          Rule 35(c) closed long before the district court reconsidered its                                        ____________________               7Therefore, for example, even though Fahm's oral request for          reconsideration  of the   4A1.3  departure ruling on September 30          was made within the limitation  period, the court would have been          required to  act  on  the  request within  the  seven-day  period                       ___          (properly  calculated) following entry of the judgment of convic-          tion on October 2, 1992.   See Morillo, slip op. at 10.   Accord-                                     ___ _______          ingly, on December 22 the district court was without jurisdiction          under Rule 35(c) to "correct," in any way, its original sentence.          See also Fed. R. Crim. P. 45(a),(b) (rules governing  computation          ___ ____          and enlargement of time).               8There is  no suggestion,  either by the  parties or  in the          appellate  record, that the twenty-one month sentence was imposed          pursuant  to Fed.  R.  Crim. P.  36.   In any  event, Rule  36 is          considered generally  inapplicable to  judicial errors and  omis-                                                 ________          sions.  Daddino,  5 F.3d at 264-65.   See generally 3  Charles A.                  _______                       ___ _________          Wright, Federal Practice and Procedure   611 (2d ed. Supp. 1993).                  ______________________________                                          15          original sentence, and the court  lacked inherent power to do so,          the original sentence  must be reinstated.  See  Turner, 998 F.2d                                                      ___  ______          at 536  ("The district  court's inaction had  the same  effect as          denying the  motion, making  the judgment final  on the  date the          district judge's power to alter the sentence expired.").                    The  twenty-one  month   prison  sentence  imposed   on                    _______________________________________________________          December 22,  1992, is to  be vacated; the  original twenty-month          _________________________________________________________________          prison sentence imposed on September 30, 1992, is to be reinstat-          _________________________________________________________________          ed.  So ordered.          __   __________                                          16
