§711 Rule 35(b) Substantial Assistance Motions
3d Circuit says substantial assistance does not justify compassionate release. (150)(711) Defendant moved for compassionate release under the First Step Act, 18 U.S.C. § 3582(c)(1), claiming that his substantial assistance to the government constituted an “extraordinary and compelling circumstance” that justified his release. The district court denied the motion. The Third Circuit affirmed, noting that under Fed. R. Crim. P. 35(b), only the government can move for post-sentencing substantial assistance. U.S. v. Claude, __ F.4th __ (3d Cir. Oct. 27, 2021) No. 20-3563.
11th Circuit allows government to withdraw Rule 35(b) motion six years after it was filed. (711) Defendant pleaded guilty to RICO and fraud charges. He entered a cooperation agreement with the government that required him to provide information to the government and in return the government would file a motion under Federal Rule of Criminal Procedure 35(b). Within a year after sentencing, the government filed a Rule 35(b) motion to preserve the district court’s jurisdiction to act on a motion. Six years later, without the district court acting on the motion, the government sought to withdraw it, stating that defendant had provided materially false information. The district court granted the motion to withdraw and the Eleventh Circuit affirmed, finding that the government’s discretion to file a Rule 35(b) motion had not ended when the government filed the “placeholder” motion six years’ earlier. U.S. v. Rothstein, __ F.3d __ (11th Cir. Sept. 30, 2019) No. 18-11796.
2d Circuit allows appeal from denial of substantial assistance motion. (711)(850) Defendant pleaded guilty to wire fraud. He cooperated with the government both before and after sentencing. After sentencing, the government filed a motion under Federal Rule of Criminal Procedure 35(b) seeking a reduction of defendant’s sentence because of his cooperation. The district court denied the motion, and the defendant filed a notice of appeal under 18 U.S.C. § 3742(a)(1). The Second Circuit held it had jurisdiction to review the denial of the Rule 35(b) motion because defendant was claiming that the district court relied on erroneous facts. U.S. v. Doe, __ F.3d __ (2d Cir. Sept. 9, 2019) No. 17-1868.
2nd Circuit affirms denial of Rule 35(b) motion despite government’s recommendation. (711) Defendant pleaded guilty to fraud and was sentenced to 120 months. After his sentence, defendant cooperated in a separate case involving investment fraud. The government then filed a motion under Federal Rule of Criminal Procedure 35(b) seeking a reduction in his sentence based on his cooperation. The district court denied the motion without issuing an opinion. The Second Circuit remanded for a statement of reasons. On remand, the district court again denied the motion because defendant had already received the benefit of his cooperation in another case in another district and because he had lied to the court while on presentencing release. The Second Circuit upheld the denial, finding that Rule 35(b) motions are discretionary and that the district court gave adequate reasons under 18 U.S.C. § 3553(a) for denying the motion in defendant’s case. U.S. v. Katsman, __ F.3d __ (2d Cir. Oct. 10, 2018) No. 16-2583.
8th Circuit affirms denial of hearing on government’s refusal to file substantial assistance motion. (711) Defendant argued that the government should have been required to file a substantial assistance motion, and that the district court abused its discretion in denying his request for a “bad-faith hearing.” The Eighth Circuit found no error. Defendant’s plea agreement stated that if he provided substantial assistance, the government in its sole discretion “may, but shall not be required to,” move for a downward departure. The government thus was under no duty to move for a substantial assistance departure. Defendant was not entitled to a hearing based on his mere assertion of bad faith. Although defendant voluntarily participated in interviews, the government contended that he was not truthful, and withheld significant information. Because defendant offered no evidence that the government’s decision was based on an unconstitutional motive, and because the refusal was rationally related to a legitimate government end, defendant failed to satisfy his threshold burden. U.S. v. Zeaiter, __ F.3d __ (8th Cir. June 11, 2018) No. 16-4066.
7th Circuit remands for explanation for limited substantial assistance reduction. (711) While defendant was serving a 212-month sentence for drug charges, the government moved for a reduction under Federal Rule of Criminal Procedure 35(b)(2)(C), asking the judge to reduce defendant’s sentence by 25 percent as a reward for his substantial assistance in prosecuting Brindley, the lawyer who represented him. Brindley, however, was acquitted. The judge granted defendant only a 14 percent reduction. The Seventh Circuit remanded for the district court to further explain why it only granted a 14 percent reduction rather than the 25 percent requested by the government. First, the court suggested that defendant was somehow to blame for Brindley’s acquittal, even though there was no indication that defendant lied or otherwise had any incentive to see Brindley acquitted. Other remarks suggested that the judge thought defendant had not tried hard enough to have Brindley convicted, although there was no evidence of this. Also missing from the judge’s statement was a satisfactory explanation of why she chose to reduce defendant’s sentence by only 14 percent. U.S. v. Harrington, 834 F.3d 733 (7th Cir. 2016).
11th Circuit says court not required to use percentage-based approach to sentence reduction. (192)(711) Defendant’s original 73-month sentence was the product of a §5K1.1 departure from his guideline range of 87-108 months. He later moved for a sentence reduction based on Amendment 782. The court recalculated his new advisory range as 70-87 months, and then used a “percentage-based approach” to reduce defendant’s sentence by 17% to 58 months. Defendant had asked the district court to use a “level-based approach” to determine the degree of its departure instead. The Eleventh Circuit held that the district court erred in believing that was required to use the percentage-based approach. Under §1B1.10(b)(2)(B), a court in a §3582(c)(2) proceeding “may” depart downward from the defendant’s amended guidelines range to a degree comparable to the original §5K1.1 departure. The court may apply “a reduction comparably less than the amended guideline range.” §1B1.10(b)(2)(B). Application Note 3 to §1B1.10 gives as an example a percentage-based approach, but this approach was not required. The court’s mistaken belief about its discretion constituted procedural error, and the error was not harmless. U.S. v. Marroquin-Medina, __ F.3d __ (11th Cir. Apr. 1, 2016) No. 15-12322.
1st Circuit holds that court did not improperly fail to consider defendant’s cooperation. (711)(742) Defendant argued that the court should have reduced his offense level, or at least imposed an agreed-upon sentence, because of his “complete and candid cooperation” with the government, in accordance with §5K1.1 Although the parties acknowledged defendant’s assistance in the plea agreement, the First Circuit held §5K1.1 inapplicable. The government did not file a substantial assistance motion, nor was there a mention of one in the sentencing transcript or in defendant’s sentencing memo. On appeal, defendant did not challenge the government’s decision not to file such a motion. Defendant’s claim that the court should have considered his assistance to the government was essentially an argument that the court did not properly consider the §3553(a) factors. The panel rejected this argument, noting that court stated that it considered the §3553(a) factors. A court need not verbalize every §3553(a) factor. U.S. v. Reyes-Rivera, __ F.3d __ (1st Cir. Jan. 29, 2016) No. 14-1712.
11th Circuit says court cannot eliminate restitution in a Rule 35(b) substantial assistance motion. (610)(711) Defendant pled guilty to fraud charges, in violation of 18 U.S.C. §1349. As part of his sentence, he was required to pay $4,405,305 restitution to his victims. While in prison, he assisted authorities in an unrelated case, and the government filed a Rule 35(b) motion to reduce his sentence. The district court granted the motion and reduced defendant’s term of incarceration from 97 to 42 months, and terminated defendant’s obligation to pay restitution. The Eleventh Circuit reversed the restitution order, holding that Rule 35(b) provided no legal authority to eliminate defendant’s restitution obligation. The Mandatory Victims Restitution Act makes restitution mandatory for certain crimes, like the fraud offense to which defendant pled guilty, “[n]otwithstanding any other provision of law.” 18 U.S.C. §3663A(a)(1). The district court could not reduce defendant’s restitution as a reward for his substantial assistance. U.S. v. Puentes, __ F.3d __ (11th Cir. Oct. 5, 2015) No. 14-13587.
1st Circuit says court may consider defendant’s cooperation under § 3553(a), even without a government motion. (711) Defendant argued that the court erred in determining that it could not consider the extent of his cooperation with the government as a basis for a downward variance, in the absence of a § 5K1.1 motion from the government. The Fifth Circuit agreed that, in varying from the guidelines, a sentencing court has discretion to consider the defendant’s cooperation with the government as a § 3553(a) factor, even if the government has not made a § 5K1.1 motion. Nonetheless, the court did not err in its assessment of the § 3553(a) factors. When defendant identified cases from other circuits permitting the consideration of a defendant’s cooperation, the court stated that it “understood the argument,” and went on to hear extensive argument from defendant about his cooperation. Accordingly, the record indicated that the court understood that it had the discretion to consider the extent of appellant’s cooperation in fashioning the appropriate sentence. U.S. v. Landron-Class, 696 F.3d 62 (1st Cir. 2012).
1st Circuit says crack amendment did not apply to defendant who received Rule 35(b) reduction below mandatory minimum. (711) Defendant was originally sentenced to a statutory minimum sentence of 120 months for distributing cocaine base. He was then given a reduced sentence of 72 months under Rule 35(b) based on his substantial assistance. The Sentencing Commission later amended the crack cocaine guidelines, and defendant moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The First Circuit held that defendant was not eligible for a sentence reduction. Sentences imposed pursuant to the substantial assistance provision remain “based on” the original restricted guidelines range, which continues to serve as the anchor for the ultimate sentence. Although courts sometimes implement Rule 35(b) reductions by “lowering” the defendant’s offense level and recalculating the guidelines range, that method employs a fiction. The “lowered” offense level is nothing more than a useful way of quantifying the defendant’s assistance. Defendant’s sentencing range was not “lowered” by the crack amendments, and therefore he was not eligible for a reduction. U.S. v. Roa-Medina, 607 F.3d 255 (1st Cir. 2010).
1st Circuit limits sentence below statutory minimum to cases involving assistance to government. (711) Defendant was originally sentenced to 63 months. He cooperated with the government, which led to the successful prosecution of his cousin. After defendant cooperated, the government moved under Rule 35(b)(1) to reduce defendant’s sentence to 48 months. Defendant sought a sentence below 48 months, arguing that all of the ordinary statutory factors could be considered afresh. A prior version of Rule 35(b) required the lowered sentence to “reflect a defendant’s subsequent, substantial assistance.” However, the current version of Rule 35(b), which became effective in 2002, does not contain any language requiring the reduced sentence to “reflect” a defendant’s substantial assistance. The First Circuit held that for resentence adjustments that go below the statutory mandatory minimum, Rule 35(b) must be read in conformity with 18 U.S.C. § 3553(e). Congress has never changed the statutory rule that such reductions must reflect only the assistance provided. There is nothing in the legislative history of changes to Rule 35(b) that reflects a desire to create a discrepancy for post-sentence adjustments below the mandatory minimum. U.S. v. Poland, 562 F.3d 35 (1st Cir. 2009).
1st Circuit says prison warden had no authority to promise Rule 35(b) sentence reduction. (711) After his conviction, defendant provided assistance to the warden of the federal prison where defendant was imprisoned. In return, the warden promised to transfer defendant to a lower-security prison and to write a letter to the sentencing court to “create an opportunity to have the sentencing judge consider reducing” defendant’s sentence as a “reward” for his service. The warden did both. The sentencing judge received the letter, but the U.S. Attorney did not file a § 35(b) motion to reduce defendant’s sentence. The court made no effort sua sponte to modify defendant’s sentence as a result of the letter. Years later, defendant moved for a sentence reduction, claiming that the warden’s alleged promise was, in essence, one that bound the government to file a Rule 35(b) motion on his behalf. The First Circuit held the term “government” in Rule 35(b) does not mean a warden, and a warden of a federal prison does not have authority to bind the government to file a Rule 35(b) motion. U.S. v. Ellis, 527 F.3d 203 (1st Cir. 2008).
1st Circuit denies substantial assistance departure where defendant only came to authorities for protection and did not fully cooperate. (711) The district court declined to grant defendant a substantial assistance departure under § 5K1.1 because (a) the government had not requested one, and (b) in the court’s view, defendant was not a viable candidate. The First Circuit found no error. The evidence plainly showed there was no bad faith or impermissible motive in the prosecution’s decision not to request a departure. Defendant did not fully cooperate with the government nor did she cooperate with the goal of assisting the government. Rather, in her dealings with the sellers of stolen drugs, she came to the government for protection when she was threatened by one of the participants in the drug theft ring. She worked with authorities to capture the criminal who made the extortion demands and threatened her. This came after she had earlier obstructed justice by denying any knowledge of the drug theft ring. She never cooperated with the prosecution with information on her primary scheme, the illegal resale of legitimate drugs fraudulently purchased from the drug companies. U.S. v. Marti-Lon, 524 F.3d 295 (1st Cir. 2008).
1st Circuit says Rule 35(b) did not allow reduction in corporation’s fine. (711) Defendant and a corporation of which he owned 85 percent pled guilty to violating campaign finance laws. Defendant’s written plea agreement called for him to pay a fine of $1 million and serve six months of confinement. The corporation agreed to pay a fine of $5 million. The fines reflected a discount because the government could collect a substantial portion from the parties “right up front.” The court imposed sentences consistent with the plea agreements. More than a year later, the corporation filed a Rule 35(b) motion to offset the fine, citing § 8C3.4, which says a court “may” offset the fine on a closely held corporation if an owner holding at least a five percent interest has been fined for the same conduct. The First Circuit held that the district court had no authority to grant the Rule 35(b) motion. A lawful sentence becomes final when judgment is entered. Rule 35(b) was deliberately amended to restrict the opportunity for the judge to revisit a lawfully imposed sentence. Section 8C3.4 says that a court “may” (not “must”) offset the fine imposed on a close corporation. U.S. v. Aqua-Leisure Industries, 150 F.3d 95 (1st Cir. 1998).
1st Circuit says information was “not known” for Rule 35(b) purposes until its value became important. (711) In 1990, defendant pled guilty to drug charges. In 1994, one of her associates was indicted, and defendant’s substantial cooperation resulted in his conviction. A Rule 35(b) motion must be made within one year after sentencing unless the defendant’s substantial assistance involves information “not known” until later. The district court denied the government’s Rule 35(b) motion since defendant’s cooperation took place more than one year after sentencing and was based on information she possessed from the beginning. The Second Circuit construed “not known” broadly; holding that until a defendant becomes aware of its value, or is specifically asked, that defendant does not “know” useful information. If a defendant did not disclose information simply because she was not asked, or was otherwise unaware of its value, there is no reason to reject its later use. U.S. v. Morales, 52 F.3d 7 (1st Cir. 1995).
2nd Circuit says claim that government was attempting to interfere with defendant’s relationship with children was insufficient to challenge lack of § 5K1.1 motion. (711) The government declined to move for a § 5K1.1 departure, noting that defendant had repeatedly lied about his wife’s whereabouts. Defendant contended that the government’s motives were unconstitutional, and that the demand for information concerning his wife’s whereabouts, at a time when her capture would have left his children unattended, amounted to improper interference with the parent-child relationship. However, a court may not inquire into the government’s failure to make a § 5K1.1 motion unless there is a substantial threshold showing of an unconstitutional motive such as the race or religion of the defendant. Defendant failed to allege such an unconstitutional motive. His generalized accusation that the government was improperly attempting to interfere with his relationship with his children was insufficient. U.S. v. Morgan, 386 F.3d 376 (2d Cir. 2004).
2nd Circuit holds that § 3742 governs appeal of Rule 35(b) reduction. (711) After defendant was sentenced, the district court reduced defendant’s sentence by five years based on the government’s Rule 35(b) motion. Defendant appealed the extent of that reduction. The Second Circuit held that an appeal of a Rule 35(b) motion is governed by 18 U.S.C. § 3742 (which confers limited appellate jurisdiction over appeals from sentences), rather than 28 U.S.C. § 1291 which grants broad appellate jurisdiction over appeals of final decisions). The only practical difference between Rule 35(b) and guideline § 5K1.1 is a matter of timing. Section 5K1.1 is based on substantial assistance before sentencing; Rule 35(b) is based on substantial assistance after sentencing. The two should be governed by the same standard. Allowing a Rule 35(b) motion to be governed by a more lenient standard of review would encourage defendants to postpone their assistance until after sentencing. Under § 3742, a defendant may not appeal the extent of a downward departure. Thus, the issue was not reviewable. U.S. v. Doe, 93 F.3d 67 (2d Cir. 1996).
2nd Circuit gives defendant right to comment on government’s Rule 35(b) motion. (711) One year after defendant was sentenced, the government submitted in letter form a Rule 35(b) motion urging a reduction in sentence. On the same day, before defendant became aware that a motion had been made, the court denied the motion in a statement handwritten on the motion. The Second Circuit held that a defendant must have the opportunity to respond to a government’s Rule 35(b) motion. Because guideline § 5K1.1 is similar in language and function, it should inform the construction of Rule 35(b). Just as a defendant may comment on the government’s refusal to move under § 5K1.1, a defendant should be able to comment on the inadequacy of the government’s motion under that section or under Rule 35(b). Otherwise, the government could circumvent constitutional limits on its discretion to make or withhold such a motion. However, a defendant is not entitled to a full evidentiary hearing, as distinguished from a written submission. A district court has the discretion to determine whether such a hearing is necessary. U.S. v. Gangi, 45 F.3d 28 (2d Cir. 1995).
3rd Circuit reverses sentence below statutory minimum based on factors other than defendant’s assistance. (711) In this appeal, the Third Circuit considered what factors a district court may consider when sentencing a defendant below a statutory minimum term of imprisonment, in order to take his assistance to the government into account under 18 U.S.C. § 3553(e). The panel ruled that a district court cannot use factors unrelated to a defendant’s substantial assistance in order to sentence a defendant below the statutory minimum. Every other circuit of appeals to address this issue has reached the same conclusion. The appropriate procedure in such a case is for the court to start with the mandatory minimum sentence as a baseline, and then after granting the §3553(e) motion, to determine the extent to which the defendant’s cooperation warranted a divergence from that baseline. Guideline § 5K1.1 sets out an instructive, although not exhaustive, list of factors a sentencing court should examine when assessing that assistance and determining how far below a statutory minimum it will sentence a defendant pursuant to § 3553(e). U.S. v. Winebarger, 664 F.3d 388 (3d Cir. 2011).
3rd Circuit holds defendant entitled to no relief under old or new Rule 35(b). (711) Defendant argued that his assistance in drug cases entitled him to a reduced sentence under Fed. R. Crim. P. 35(b). The Third Circuit held that defendant was not entitled to relief either under old or new Rule 35(b). His motion under old Rule 35(b) was required to be made within 120 days of sentencing. Defendant did move within that period but the motion was denied and he did not appeal. Defendant’s present motion was years late. His claim under either Rule 35(b) or 28 U.S.C. § 2255 was based on his agreement to provide information to a DEA agent. He claimed the agreement was ratified by the U.S. Attorneys Offices of the for the Eastern and Southern Districts of New York. However, the new Rule 35(b) had not been adopted at the time he claimed to have made his agreement, and there was nothing in the record to support his contention. Moreover, even if his assertions were true, his dealings with Assistant U.S. Attorneys in the Southern and Eastern Districts of New York could not have been enforceable against the U.S. Attorney’s office in the District of New Jersey. U.S. v. Friedland, 83 F.3d 1531 (3d Cir. 1996).
3rd Circuit holds that 25 months was not a reasonable delay under former Rule 35(b). (711) In April 1990, the district court sentenced defendant to 20 years for a pre-guidelines offense. In February 1992, defendant moved to reduce his sentence under former Fed. R. Crim. P. 35(b) (applicable to offenses committed before November 1, 1987). In March 1994, the district court granted the motion and reduced the sentence to five and one half years. It later vacated its order, ruling that it did not have jurisdiction over the motion. The 3rd Circuit agreed, holding that the passage of 25-months from the filing of the motion was not a “reasonable time” under Rule 35(b). The time limitation is intended to prevent courts from waiting to see what action the Parole Board takes before ruling on motions for reduction of sentence. That is exactly what the sentencing court attempted to do in this case. U.S. v. Idone, 38 F.3d 693 (3rd Cir. 1994).
4th Circuit permits court to consider factors outside defendant’s cooperation in determining extent of Rule 35(b) reduction. (711) Defendant argued that the district court erred in considering factors other than his substantial assistance when determining the extent of his sentence reduction under Rule 35(b). The district court had found that the violent nature of defendant’s offense, his criminal history, and a prior sentence reduction under § 5K1.1 were all proper factors to be considered in determining the extent of any Rule 35(b) sentence reduction. The Fourth Circuit held that the district court did not err in considering factors other than defendant’s cooperation when determining the extent of a Rule 35(b) sentence reduction. First, nothing in the plain language of Rule 35(b) restricts the district court from considering other factors. Furthermore, allowing the district court to consider all relevant sentencing factors was consistent with the broad discretion afforded to the district court during sentencing. Imposing appropriate sentences requires that courts be able to balance all relevant sentencing factors when determining a defendant’s actual sentence reduction. U.S. v. Davis, 679 F.3d 190 (4th Cir. 2012).
4th Circuit allows appeal of extent of Rule 35(b) sentence reduction. (711) Defendant argued that the district court committed reversible error by considering factors other than his substantial assistance when determining the extent of his sentence reduction under Rule 35(b). The district court found that while defendant’s substantial assistance warranted a sentence, the violent nature of his offense, his criminal history, and a prior sentence reduction under § 5K1.1 were proper factors to be considered in determining the extent of any sentence reduction. The Fourth Circuit held that it had appellate jurisdiction over defendant’s appeal. In claiming that the district court was wrong as a matter of law to consider any factors other than his assistance to law enforcement in determining the extent of his sentence reduction, defendant challenged the lawfulness of the district court’s sentencing methodology, not the discretionary appropriateness of its ultimate decision. U.S. v. Davis, 679 F.3d 190 (4th Cir. 2012).
4th Circuit finds defendant waived right to appeal denial of government’s Rule 35(b) motion. (711) As part of his plea agreement, defendant waived his right to appeal “any sentence.” During his incarceration, the government filed a motion under Rule 35(b), seeking to reduce his sentence based on his assistance to the government in an unrelated case. The district court denied this motion, and defendant appealed. The Fourth Circuit ruled that defendant’s appeal of the court’s denial of the government’s Rule 35(b) motion was within the scope of defendant’s appellate waiver, and dismissed the appeal. The panel rejected defendant’s argument that because the possibility of a Rule 35(b) proceeding was not discussed at his allocution, he “could not have knowingly and intelligently agreed to waive any rights related” to such a proceeding. The appeal was within the scope of the appellate waiver. Under U.S. v. Pridgen, 64 F.3d 147 (4th Cir. 1995), an appeal from a district court’s decision on a Rule 35(b) motion is an appeal of the sentence at which the Rule 35(b) motion was aimed. Thus, defendant was appealing “any sentence” as described in the waiver. Further, defendant’s waiver explicitly covered appeals based on “any ground set forth in 18 U.S.C. § 3742.” U.S. v. Thornsbury, 670 F.3d 532 (4th Cir. 2012).
4th Circuit reverses Rule 35(b) reduction that was based on factors other than defendant’s cooperation. (711) The government filed a Rule 35(b) motion seeking a 20 percent reduction in defendant’s 96-month sentence based on defendant’s cooperation. However, based on evidence from defendant that he would not be able to receive his preferred ADHD medication in prison because it was not on the BOP’s approved medication list, the district court reduced his sentence to one day. The Fourth Circuit reversed, holding substantial assistance is the sole basis on which a Rule 35(b) reduction may be made. In deciding whether to grant a Rule 35(b) motion, a district court may not consider any factor other than the defendant’s substantial assistance to the government. The panel also rejected defendant’s claim that a longer period of incarceration in his case would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. The BOP’s response “reflected [a] plan to carefully develop an individualized treatment regime for defendant’s [ADHD] based on a review of his medical records, his doctor’s treatment recommendations, and a medical screening.” U.S. v. Clawson, 650 F.3d 530 (4th Cir. 2011).
4th Circuit holds that “original term of imprisonment” was sentence after Rule 35 reduction. (711) Defendant was convicted of crack charges, and sentenced to 235 months. The court later reduced his sentence to 187 months for his substantial assistance based on the government’s Rule 35 motion. Defendant sought a sentence reduction under 18 U.S.C. § 3582(c)(2) based on recent guideline amendments that reduced the offense levels for crack cocaine. The district court refused to reduce his sentence because his 187-month sentence was one month below the low end of the amended guideline range. However, under § 1B1.10(b), a court may reduce a below-guidelines sentence when the “original term of imprisonment imposed was less than the term of imprisonment … applicable to the defendant at the time of sentencing.” The Fourth Circuit held that defendant’s “original term of imprisonment” was the already-reduced sentence he was serving at the time of the § 3583(c)(2) motion. Thus defendant was eligible for a reduction. Because it was unclear whether the district court properly considered the current sentence as the “original sentence,” the panel vacated and remanded to the district court. U.S. v. Stewart, 595 F.3d 197 (4th Cir. 2010).
4th Circuit holds that discretion to file Rule 35(b) motion also included discretion to file motion to withdraw motion. (711) A year after defendant’s sentencing, the government filed a motion under Rule 35(b) for a reduction of sentence to toll the one-year time limit imposed by that rule. The government later filed a motion to withdraw it motion because of defendant’s lies and his lack of full disclosure. Defendant argued that the district court erred in granting the government’s motion to withdraw its Rule 35(b) motion because, under the plea agreement, the government did not retain the discretion to withdraw a previously filed sentence reduction motion. The Fourth Circuit held that the language in the plea agreement giving the government “sole discretion” to file a Rule 35(b) motion also included the discretion to file a motion to withdraw it. The government did not relinquish its discretion when it imposed new conditions on defendant in view of deficiencies in his cooperation. There was no evidence that the government acted in bad faith or for improper motives. U.S. v. Hartwell, 448 F.3d 707 (4th Cir. 2006).
4th Circuit holds that defendant could appeal court’s order granting government motion to withdraw Rule 35(b) motion. (711) A year after defendant’s sentencing, the government filed a motion under Rule 35(b) for a reduction of sentence to toll the one-year time limit imposed by that rule. The government later filed a motion to withdraw its motion because of defendant’s lies and lack of full disclosure. The district court granted the motion and denied defendant’s motion for an evidentiary hearing. The Fourth Circuit held that it had authority to hear defendant’s appeal under either 18 U.S.C. § 3742(a) or 28 U.S.C. § 1291(a). To the extent defendant contended that the district court erred in construing the plea agreement so as to permit the government to withdraw its earlier 35(b) motion, he was challenging the legal foundation of the sentence. To the extent defendant claimed that the government breached the plea agreement, he was not challenging the sentence directly, but the court’s refusal to require the government to comply with the agreement. When the court granted the government’s motion to withdraw its Rule 35(b) motion, it entered a final order rejecting defendant’s specific performance claim, which is appealable under § 1291. U.S. v. Hartwell, 448 F.3d 707 (4th Cir. 2006).
4th Circuit rejects late Rule 35(b) motion where information was known within one year after sentencing. (711) Defendants provided important information to the government about a drug conspiracy, but they did so more than one year after they were sentenced for their own drug-related crimes. Rule 35(b) motions generally must be filed within one year after sentencing. However, an exception is made where the defendant’s substantial assistance involved information not known by the defendant until one year or more after sentencing. Defendants argued that Rule 35(b) should be interpreted to excuse the late filing here because the investigation on which defendant cooperated could not have been undertaken within the one year period and therefore they could not have cooperated with one year of their sentencing. The Fourth Circuit refused to interpret this provision liberally to permit the late filing where the information sought had been known by the defendants before the expiration of one-year period. Although such a liberal reading would serve the government’s interest in obtaining the defendants’ cooperation, the one-year limit reflects the rule’s additional policy of bring finality to sentencing at some point in time and frustrating manipulation by defendants. The court rejected U.S. v. Morales, 52 F.3d 7 (1st Cir. 1995), which held that a defendant does not “know” information within the meaning of Rule 35(b) until becoming aware of its value or being specifically asked. U.S. v. Carey, 120 F.3d 509 (4th Cir. 1997).
4th Circuit says failure to conduct evidentiary hearing on Rule 35(b) motion is reviewable. (711) Defendant asserted that the district court abused its discretion by failing to conduct an evidentiary hearing on the government’s Rule 35(b) motion, and that the sentence was imposed in violation of law. The Fourth Circuit held that this could be reviewed under § 3742(a)(1). However, the court found the claim had no merit and the decision not to hold the evidentiary hearing was not an abuse of discretion. The district court was not “confused” about the extent of defendant’s assistance. The court accepted the level of assistance alleged by the government and concluded that a sentence reduction was not warranted. U.S. v. Pridgen, 64 F.3d 147 (4th Cir. 1995).
4th Circuit says denial of Rule 35(b) motion is not reviewable. (711) The government filed a timely Rule 35(b) motion for a sentence reduction based on the assistance defendant had given in the prosecution of his wife. The district court denied the motion, finding that defendant’s assistance was not substantial. The Fourth Circuit held that the court’s denial of the Rule 35(b) motion was not reviewable. Section 3742(a) governs the instances in which a defendant may appeal a district court ruling on a Rule 35(b) motion. Because § 3742(a) does not permit a defendant to appeal a refusal to depart downward from, or reduce a sentence within an applicable guideline range, the court dismissed defendant’s appeal. U.S. v. Pridgen, 64 F.3d 147 (4th Cir. 1995).
4th Circuit upholds denying continuance pending government’s “substantial assistance” decision. (711) Defendant argued that the district court abused its discretion by denying his motion to continue sentencing until the government determined whether it would file a substantial assistance motion under § 5K1.1. At the time of sentencing, the government had interviewed defendant concerning his knowledge of other criminal matters, but had not yet decided whether to call him as a witness in future criminal cases. The Fourth Circuit held that the denial of the continuance was not an abuse of discretion. Defendant gave no estimate of the length of his requested continuance or when any possible trial at which he would testify for the government would take place. His plea agreement stated that the government had no duty to file a motion for a substantial assistance reduction. Although a later Rule 35(b) motion could not take into account defendant’s actions before sentencing, it could account for defendant’s future testimony. U.S. v. Speed, 53 F.3d 643 (4th Cir. 1995).
5th Circuit holds that government was not required to inform court of defendant’s cooperation in separate investigation. (711) While serving his 151-month drug sentence, defendant provided assistance to the DEA in connection with the investigation and prosecution of two individuals. The government filed a motion to reduce defendant’s sentence to 120 months, which the court granted. Defendant filed a pro se Motion for Further Reduction of Sentence, alleging that the court had not been apprised of the full extent of his cooperation with the government. He noted that at the time of the Rule 35(b) hearing, he was in the process of informing on a third individual, for which he was entitled to a further sentence reduction. The Fifth Circuit found no error. While the government may have been required to give the court accurate information as to the individuals on which it based its Rule 35 motion, defendant was incorrect that the government also had to apprise the court of his assistance in other investigations. Because the government was not moving for a reduction in sentence as to the third individual, it was under no obligation to supply the court with information regarding that case. U.S. v. Grant, 493 F.3d 464 (5th Cir. 2007).
5th Circuit finds no right to counsel at Rule 35(b) motion to reduce sentence. (711) Because of confusion over who represented him, defendant testified at the trial of his co-defendant without having counsel negotiate a sentence reduction. The government moved to reduce his sentence under Rule 35(b), but mailed the motion to defendant’s former counsel. The district court granted the government’s motion and reduced defendant’s sentence by 60 months to a term of 202 months. Defendant later filed a § 2255 petition arguing that he was denied his right to counsel during negotiations on the Rule 35 motion as well as the right to oppose or answer the government’s motion. The Fifth Circuit held that a defendant has no right to counsel at a Rule 35(b) motion to reduce sentence. The motion is not trial related so no 6th Amendment right attaches at this stage. The fact that it may affect an inmate’s sentence is insufficient to trigger a due process right to counsel because the inmate faces no threat of additional loss of liberty and is simply given the opportunity to obtain a lighter sentence. U.S. v. Palomo, 80 F.3d 138 (5th Cir. 1996).
5th Circuit says defendant’s motion to reduce sentence was unauthorized. (711) Judgment was entered November 3, 1993. On November 4, 1993 defendant moved for an extension of time to move for a reduction of sentence. The district court granted leave, and defendant filed the motion on November 30, 1993. The motion was denied February 4, 1994, and defendant appealed from that order on February 11, 1994. The notice stated that the appeal was taken pursuant to 18 U.S.C. § 3742(a). The 5th Circuit held that defendant’s motion for a sentence reduction was unauthorized and without a jurisdictional basis. Therefore, it could not be appealed. The motion did not fit any provision of Rule 35. Only the government can file a motion for a sentence reduction under Rule 35(b). Rule 35(c) pertains only to the correction of arithmetical, technical or clear error. And 18 U.S.C. § 3742 only permits a direct appeal of a sentence or conviction. Defendant did not appeal his judgment of conviction. U.S. v. Early, 27 F.3d 140 (5th Cir. 1994).
6th Circuit reverses departure below statutory minimum based on factors unrelated to substantial assistance. (711) The government moved for a downward departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, based on defendant’s substantial assistance. The district court determined that the value of defendant’s assistance warranted a downward departure of three offense levels. It then varied further downward because of a policy disagreement with the then-applicable crack-cocaine guidelines. The Sixth Circuit ruled that the second downward departure was improper, holding that the only permissible basis for a below-minimum sentence is the defendant’s substantial assistance. Only factors related to a defendant’s cooperation may influence the extent of a departure pursuant to § 3553(e). U.S. v. Williams, 687 F.3d 283 (6th Cir. 2012).
6th Circuit affirms despite argument that court improperly considered possible future Rule 35 reduction. (711) The district court granted defendant a 24-month downward variance to account for his cooperation with the government, and sentenced him to 71 months. Defendant argued for the first time on appeal that the district court failed to consider several of his mitigating arguments and instead, improperly considered the possibility of future sentence relief under Rule 35. The Sixth Circuit found that the record did not demonstrate any error by the district court. Defendant’s primary argument at sentencing was that, due to his substantial assistance, he deserved a lower sentence. The record clearly reflected that the district court thoroughly addressed this argument, and defendant in fact received a 25% reduction in his sentence. The district court considered “the core thrust of all of the arguments” that defendant actually presented, and thus its explanation of its sentence was adequate. Although it was possible to interpret the district court’s comment in a way that suggested that it based its sentence on the possibility of a future Rule 35(b) motion, the better interpretation was that the court properly sentenced defendant based on its assessment of the cooperation he had provided as of the date of sentencing. U.S. v. Judge, 649 F.3d 453 (6th Cir. 2011).
6th Circuit, en banc, says court may not consider § 3553(a) factors in determining extent of Rule 35(b) reduction. (711) Defendant received a 25-year mandatory minimum sentence based on his guilty plea to money laundering, firearms charges, and operation of a continuing criminal enterprise. The government later filed a Rule 35(b) motion for a sentence reduction based on defendant’s cooperation. Defendant argued that the § 3553(a) factors may be used as a basis for reducing a sentence when a Rule 35(b) motion is made. The Sixth Circuit, en banc, held that Rule 35(b) did not require or authorize the consideration of the § 3553(a) sentencing factors in determining the extent of the reduction. Booker did not require consideration of the § 3553(a) factors in the context of a Rule 35(b) motion. The Sixth Amendment right to trial by jury, the topic of concern in Booker, has no application to a Rule 35(b) motion. The fact that the district court could not, due to the mandatory minimum, give full consideration to the § 3553(a) factors at his original sentencing was immaterial. The district court gave him the lowest possible legal sentence. Application of § 3553(a) is not constitutionally required. U.S. v. Grant, 636 F.3d 803 (6th Cir. 2011) (en banc).
6th Circuit says defendant cannot appeal denial of retroactivity motion for “reasonableness.” (711) The district court refused to reduce defendant’s sentence based on his motion to apply a retroactive guideline amendment under 18 U.S.C. § 3582(c)(2) or the government’s Rule 35b) motion. Defendant argued that the denial of the reduction was “unreasonable.” The 6th Circuit ruled that defendant could not appeal the denial of a sentence reduction based on Booker unreasonableness. See U.S. v. Parker, 543 F.3d 790 (6th Cir. 2008) (allegations of unreasonableness do not confer appellate jurisdiction over Rule 35(b) determinations). The Supreme Court’s decision in Dillon v. U.S., 130 S.Ct. 2683 (2010) that the Booker remedial opinion has no force in § 3582(c)(2) proceedings compels the conclusion that Booker‘s other specific “remedial amendment” – its promulgation of unreasonableness review – does not apply to proceedings under § 3582(c)(2). U.S. v. Bowers, 615 F.3d 715 (6th Cir. 2010).
6th Circuit says district court did not deny downward departure based on possibility of Rule 35(b) motion. (711) Defendant pleaded guilty to harboring illegal aliens pursuant to a plea agreement that required him to cooperate with the government. After defendant entered the agreement, but before sentencing, defendant met with government agents and provided information about the recruitment of illegal aliens for his business. Investigators used this information to generate leads, but no investigations or prosecutions had been aided at the time of sentencing. At sentencing, the government moved for a downward departure under § 5K1.1. The district court denied the motion, explaining that defendant had begun to cooperate only after first trying to flee the U.S. and that defendant’s cooperation was incomplete. The court added that the possibility existed that defendant would provide meaningful cooperation, but that should be the subject of a motion under Rule 35(b). On appeal, defendant argued that the district court improperly relied on the possibility that the government would file a Rule 35(b) motion. After reviewing the transcript of defendant’s sentencing, the Sixth Circuit concluded that the district court relied on the extent of defendant’s cooperation prior to sentencing, and not on the possibility that the government would file a Rule 35(b) motion. U.S. v. Rosenbaum, 585 F.3d 259 (6th Cir. 2009).
6th Circuit orders resentencing due to consideration of possible motion based on future cooperation. (711) Defendant contended that, in imposing sentence, the district court improperly considered the possibility that his sentence would be reduced by a future Rule 35(b) motion. The court sentenced defendant to 70 months, “with the understanding that there probably will be subsequent motions filed subsequently [sic] ….” The Sixth Circuit reversed, ruling that sentencing courts cannot consider the potential for a future sentence reduction in imposing sentence. Because the court could not “conclude on the record … that the district court would have imposed the same … sentence” in absence of this influence, the panel vacated defendant’s sentence and remanded for resentencing. U.S. v. Recla, 560 F.3d 539 (6th Cir. 2009).
6th Circuit will not review claim of prosecutorial misconduct where defendant failed to raise issue below and did not allege unconstitutional motive. (711) Defendant argued that the district court committed plain error when it failed to find prosecutorial misconduct by the U.S. Attorney for not filing a § 5K1.1 motion. However, the government stated that it would not file such a motion because defendant was one of the last conspirators to come and speak to the government, and thus was not in a position provide much new information, and the information he provided was vague and not of substantial assistance. Seven co-conspirators cooperated before defendant was even arrested. Moreover, defendant failed to raise this issue below. Because defendant failed to raise the issue below, and did not allege any unconstitutional motivation, the Sixth Circuit found the claim of prosecutorial misconduct not reviewable. U.S. v. Gates, 461 F.3d 703 (6th Cir. 2006).
6th Circuit rules court did not consider possibility of Rule 35 reduction when ruling on § 5K1.1 motion. (711) In summarizing defendant’s assistance in support of its § 5K1.1 motion, the government noted that defendant would also likely be used as a witness in pending and future cases. The district court asked whether, if defendant provided substantial assistance in those cases, the government anticipated filing a motion pursuant to Rule 35. The government agreed that it would. Defendant challenged the downward departure granted by the district court, arguing that the court improperly considered the possibility of a post-sentencing reduction when ruling on the government’s § 5K1.1 motion. The prospect of Rule 35(b) relief in the future cannot alter or influence the decision of the prosecution or the deliberation of the court at sentencing. U.S. v. Drown, 942 F.3d 55 (1st Cir. 1991). However, a court’s mere mention of possible future cooperation of the possibility of filing a Rule 35 motion alone will not invalidate the district court’s ruling on a motion for a § 5K1.1 at sentencing. Here, the district court simply referred to the possibility that the government might move for an additional reduction of sentence after sentencing if defendant continued to provide substantial assistance. U.S. v. Ridge, 329 F.3d 535 (6th Cir. 2003).
6th Circuit holds that 18 U.S.C. § 3742(a) applies to appeal of Rule 35(b) reduction. (711) The government filed a motion to reduce defendant’s sentence pursuant to Rule 35(b) based on his substantial assistance. The district court granted the motion, but refused to consider defendant’s request for reconsideration of the extent of the reduction. Defendant then appealed. The Sixth Circuit held that 18 U.S.C. § 3742(a), which defines the circumstances under which a defendant may appeal an “otherwise final sentence,” applies to a defendant’s appeal of a district court’s sentence reduction under Rule 35(b). The district court’s reduction of defendant’s sentence under Rule 35(b) is a “sentence.” Because defendant’s appeal did not fall within the narrow appellate jurisdiction provided for in § 3742(a), the panel dismissed the appeal for lack of jurisdiction. U.S. v. Moran, 325 F.3d 790 (6th Cir. 2003).
7th Circuit says court’s refusal to vary based on defendant’s cooperation was abuse of discretion. (711) Defendant contended that the district court imposed an unreasonable sentence when it refused to reduce his sentence based on his cooperation. A district court may consider a defendant’s cooperation with the government as a basis for a reduced sentence, even if the government has not made a § 5K1.1 or Rule 35 motion. It would be reversible error if the court had said that it could not independently consider defendant’s cooperation because the government did not make a § 5K1.1 motion. Here, however, the court repeatedly said that it knew that it had the discretion under 18 U.S.C. § 3553 to lower defendant’s sentence because of his cooperation, but chose not to. The Seventh Circuit found no abuse of discretion. U.S. v. Leiskunas, 656 F.3d 732 (7th Cir. 2011).
7th Circuit bars basing Rule 35(b) reduction on factors other than substantial assistance. (711) Twelve years after defendant was sentenced, the government filed a Rule 35(b)(2) motion, recommending that his sentence be reduced by 30 months to reflect substantial assistance that he had provided more than a year after he had been sentenced. Instead, the judge reduced defendant’s sentence by 115 months, on the basis of the sentencing factors that are now required to be considered by 18 U.S.C. § 3553(a). The Seventh Circuit held that the judge was not authorized to reduce defendant’s sentence on the basis of the statutory sentencing factors. Rule 35(b) confers an entitlement on the government, rather than on the defendant, to allow them to elicit valuable assistance from a defendant more than a year after he has been sentenced. If the happenstance of the government’s wanting to reward the defendant modestly for some post-sentencing cooperation allowed the judge to consider the full range of sentencing factors in § 3553(a), it would create arbitrary distinctions between similarly situated defendants, would create the equivalent of a judge-administered parole system, and would impair the objectives of Rule 35(b). U.S. v. Shelby, 584 F.3d 743 (7th Cir. 2009).
7th Circuit affirms government’s refusal to make substantial assistance motion. (711) Defendant argued that the government improperly withheld a substantial assistance motion. Although there were some gaps in the record regarding the type and level of assistance that defendant provided to the government, the Seventh Circuit held that defendant failed to make a “substantial threshold showing” that the government improperly withheld the substantial assistance motion. The prosecutor’s comments about defendant fathering 10 children with six different women was merely an aside that seems unrelated to the government’s decision to withhold the motion. Moreover, defendant’s attorney essentially conceded at the hearing that the government had a rational basis for withholding the motion because defendant’s incarceration had rendered him useless. The government was not required to inform defendant that his incarcerated status would make it harder for him to cooperate, which in turn would diminish the chances that he would be the beneficiary of a substantial assistance motion. U.S. v. Billings, 546 F.3d 472 (7th Cir. 2008).
7th Circuit reviews Rule 35(b) sentence reduction for violation of law, not for reasonableness. (711) While serving their sentences, defendants provided substantial assistance to the government. The government filed Rule 35(b) motions to reduce their sentences, which the district court granted, reducing one defendant’s sentence from 120 to 102 months, and the second defendant’s sentence from 84 to 72 months. On appeal, defendants argued that the district court failed to properly consider their arguments for greater sentence reductions. An appeal from a Rule 35(b) order is an appeal from an “otherwise final sentence” over which the appellate court has limited jurisdiction. Section 3742 does not grant appellate courts jurisdiction to review a district court’s exercise of its discretion under Rule 35(b). Thus, the Seventh Circuit found that its review of a Rule 35(b) sentence reduction was more limited than its review of an original sentence. The court will examine only whether the reduction was imposed in violation of the law, not whether the new sentence imposed was reasonable. The panel upheld the sentences imposed here. The district court could properly consider defendant’s criminal history and the nature of their crimes. Although the court did not explicitly address all of the arguments defendants raised for a lower sentence, there was no reason to doubt that the district court considered defendants’ arguments. U.S. v. Chapman, 532 F.3d 625 (7th Cir. 2008).
7th Circuit upholds government’s refusal to file substantial assistance motion. (711) At sentencing, the government advised the court that it had decided not to file a substantial assistance motion under § 5K1.1 because the officers believed that defendant had not been candid with them as to the source of the cocaine that was found on him. Defendant argued that the government’s reason was pretext since one of the officers testified in state court for purposes of a search warrant that defendant was both truthful and reliable. The Seventh Circuit upheld the government’s refusal to file the substantial assistance motion. Defendant had provided meaningful information to law enforcement that resulted in the filing of marijuana charges against another individual. However, the fact that he was forthcoming with his knowledge of the marijuana offense did not mean that he was forthcoming with regard to the cocaine source. The government, under the terms of the agreement, reserved the discretion to judge whether defendant rendered substantial assistance in that context. It did that, and found that defendant was less than cooperative. Under these circumstances, the government was under no obligation to file a substantial assistance motion. U.S. v. Miller, 458 F.3d 603 (7th Cir. 2006).
7th Circuit holds that government refusal to file Rule 35(b) motion was irrational and made in bad faith. (711) Before sentencing on a 2001 drug charge, defendant and his attorney discovered that, due to a bureaucratic bungle, he had spent two extra years in prison for a 1993 conviction. After much wrangling with the government, he agreed to cooperate, and when the government filed a Rule 35(b) motion in a year’s time, defendant would argue for an additional reduction premised on the two extra years he wrongly spent in prison. As the one year deadline for filing the Rule 35(b) motion approached, more disputes broke out between defendant and the government, and the government ultimately refused to file the motion, claiming defendant had created an adversarial relationship with the government by threatening a lawsuit, the government had an interest in deterring frivolous lawsuits, and defendant had breached the plea agreement by failing to pay a fine. The district court rejected each of these reasons and found them “pretextual for the real reason” – the government’s desire to use its control over the Rule 35(b) motion as a tool to secure a release from liability for the two extra years defendant spent in prison on his previous conviction. Nonetheless, although the government’s behavior was “questionable,” the district court found its conduct did not amount to bad faith. The Seventh Circuit disagreed. The government failed to convincingly articulate a rational reason for withholding the Rule 35(b) motion. The government’s attempt to block defendant’s unrelated civil suit was “so far afield from the purpose of § 5K1.1 and Rule 35(b) as to be irrational.” The underlying facts led “inescapably to the conclusion that the government acted in bad faith.” U.S. v. Wilson, 390 F.3d 1003 (7th Cir. 2004).
7th Circuit says notice of appeal deprived district court of jurisdiction to hear Rule 35(b) motion. (711) During the pendency of defendant’s appeal, the government filed a Rule 35(b) motion to reduce defendant’s sentence. The district court granted the motion, and reduced defendant sentence by several months. The Seventh Circuit held that the filing of a notice of appeal deprived the district court of jurisdiction to consider the government’s Rule 35(b) motion. The filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over the aspects of the case involved in the appeal. Once the notice of appeal has been filed, the district court lacks jurisdiction to rule on a Rule 35(b) motion. The Seventh Circuit vacated the district court’s order and affirmed the original judgment in all respects, but remanded the case to the district court for the limited purpose of permitting the district court to issue a new order to effect the change in sentence that the court attempted to accomplish in its Rule 35(b) order. U.S. v. Turchen, 187 F.3d 735 (7th Cir. 1999).
7th Circuit holds time limits in Rule 35(b) are jurisdictional. (711) On April 24, 1995, the court departed downward pursuant to the government’s § 5K1.1 motion and sentenced defendant to 233 months. On September 12, 1996, the government filed a motion for an additional downward departure pursuant to Rule 35(b) based on defendant’s post-sentencing cooperation. Although the government requested a 53-month departure, the court granted only a 12-month reduction. Defendant argued that the court abused its discretion by failing to reward him adequately for his post-sentencing cooperation and also considered improper factors in determining the extent of the departure. The Seventh Circuit held that § 3742 applies to appeals challenging the extent of a Rule 35(b) sentence reduction. Thus, it lacked jurisdiction to consider the extent of the departure. Moreover, the court lacked authority to consider the departure motion because it was untimely. Rule 35(b) permits the motion to be made “within one year after imposition of the sentence.” The one-year limit is jurisdictional and cannot be waived by the government. The only exception is where “the defendant’s substantial assistance involves information or evidence not known by the defendant until one year or more after imposition of sentence.” The exception was not applicable here. U.S. v. McDowell, 117 F.3d 974 (7th Cir. 1997).
7th Circuit says denying Rule 35(b) substantial assistance motion was abuse of discretion. (711) Defendant originally received a 10-year sentence for his criminal activities as a member of a street gang. Based on his cooperation in the prosecution of other gang members, the government moved for a reduction in sentence under Rule 35(b). After criticizing the government for misconduct in the other cases that resulted in new trials and reduced sentences for the other gang members, the district court denied the motion. The Seventh Circuit held that the district court abused its discretion in denying the Rule 35(b) motion. The judge’s decision to deny relief did not relate to the proof of defendant’s cooperation. Instead, the judge engaged in a “wide-ranging criticism” of the government’s conduct in the related cases and seemed to charge defendant with complicity because he, as a government witness in those cases, accepted favors from the government. Defendant showed his entitlement to a reduced sentence of no more than the six years received by the non-cooperating gang members. U.S. v. Lee, 46 F.3d 674 (7th Cir. 1995).
7th Circuit concludes court considered proper factors in making Rule 35(b) reduction. (711) Defendant was originally the beneficiary of a section 5K1.1 motion, under which he received a 10-year sentence that was one-half of the mandatory minimum for his offense. The government later moved under Rule 35(b) for an additional 40 percent reduction in sentence to reflect defendant’s continued assistance to the government. The 7th Circuit held that the district court’s refusal to reduce defendant’s sentence beyond the 40 percent was not an abuse of discretion. The district court considered both the nature of the defendant’s offense and the extent of his cooperation with the government. Given defendant’s central role in the continuing criminal enterprise, a reduction beyond 40 percent was unwarranted. Defendant did not support his claim that similarly-situated defendants had received greater reductions. U.S. v. Jones, 34 F.3d 495 (7th Cir. 1994).
7th Circuit finds defendant failed to prove government promised to file Rule 35(b) motion. (711) In a § 2255 motion, defendant alleged that he did not appeal his sentence because the government promised it would move to reduce his sentence under Rule 35(b) for his assistance in further drug prosecutions. The 7th Circuit held that it had jurisdiction under 28 U.S.C. § 2255 to review the claim, but upheld dismissal of the petition. Defendant satisfied the jurisdictional requirement under 28 U.S.C. § 2255 because he was, in essence, claiming his incarceration was unconstitutional. His failure to directly appeal his sentence did not bar the habeas petition because he alleged that the promise induced him to forego his appeal. Nonetheless, the petition was properly dismissed because he failed to present any evidence that the government promised to file a Rule 35(b) motion. His mere allegation of an understanding or promise was insufficient to merit an evidentiary hearing. Bischel v. U.S., 32 F.3d 259 (7th Cir. 1994).
8th Circuit rules failure to have defendant participate in Rule 35(b) hearing did not affect substantial rights. (711) Defendant was sentenced to 240 months. The government then filed a Rule 35(b) motion, recommending a 10-percent sentence reduction based on defendant’s substantial assistance. The district court held a telephonic hearing with government and defense counsel, but defendant was not present. The court then granted a 10-percent sentence reduction. Defendant appealed, arguing that his plea agreement created a due process right to participate in the Rule 35(b) hearing, and that the government breached the agreement by allowing the Rule 35(b) hearing to proceed in his absence. The Eighth Circuit construed the agreement to provide defendant with the right to participate in the Rule 35(b) hearing, Thus the district court committed plain error, but the error did not affect defendant’s substantial rights. The Eighth Circuit distinguished U.S. v. Lewis, 673 F.3d 758 (8th Cir. 2011), on the ground that unlike Lewis, the defendant here failed to identify any additional information or arguments he would have made. He also did not identify anything to suggest that the district court would have granted a larger reduction if he had been personally allowed to participate. U.S. v. Hanshaw, 686 F.3d 613 (8th Cir. July 26, 2012).
8th Circuit has no jurisdiction to consider defendant’s challenge to extent of Rule 35(b) reduction. (711) Defendant argued on appeal that the district court improperly limited the extent of his Rule 35(b) sentence reduction based on a factor unrelated to the value of his cooperation. The Eighth Circuit held that it lacked jurisdiction to consider defendant’s appeal. Where the court has jurisdiction over a sentencing appeal under § 3742(a) or (b), the court reviews the extent of a Rule 35(b) sentence reduction for abuse of discretion. But if the issue on appeal is whether the district court abused its discretion in granting or denying a Rule 35(b) motion, or in determining the extent of a sentence reduction, only the government may appeal under § 3742(b)(3). If the defendant appeals, he must establish that the sentence was imposed “in violation of law” to confer appellate jurisdiction under § 3742(a). Here, there was no error of law. The government, in deciding whether to bring a Rule 35(b) motion, must consider reasons related only to the defendant’s substantial assistance. However, the government may make a Rule 35(b) motion based on the defendant’s substantial assistance, and then advise the sentencing court if there are unrelated factors that should preclude or restrict any departure relief. The court had the authority to limit the Rule 35(b) reduction based on factors unrelated to the substantial assistance defendant provided. U.S. v. Rublee, 655 F.3d 835 (8th Cir. 2011).
8th Circuit reverses because Rule 35(b) hearing in defendant’s absence violated plea agreement. (711) The government filed a Rule 35(b) motion to reduce defendant’s sentence due to his substantial assistance. A telephonic hearing was held on the Rule 35(b) motion. Defendant did not participate in the hearing, nor was he even aware that the motion had been filed. However, defendant’s counsel participated in the hearing, and did not object to defendant’s absence. The court granted the 24-month reduction requested by the government. When defendant learned that the Rule 35(b) hearing had been held in his absence, he filed a pro se motion complaining of “bad faith” on the part of the Government and requesting a new Rule 35(b) hearing. The government argued that he waived his right to appeal in his plea agreement. The Eighth Circuit held the plain language of the plea agreement guaranteed defendant the right to participate in the Rule 35(b) hearing. By its terms the agreement gave defendant the right to make comments or present evidence at “any … proceedings related to this case.” By allowing the Rule 35(b) hearing to go forward without giving defendant the opportunity to participate, the government and the district court violated the plea agreement. U.S. v. Lewis, 673 F.3d 758 (8th Cir. 2011).
8th Circuit holds that defendant’s challenge to extent of § 35(b) reduction was not reviewable. (711) In 2003, defendant pled guilty to marijuana charges and was sentenced to 262 months. In 2004, defendant provided assistance to the government in an unrelated case. Based on this assistance, defendant’s sentence was reduced to 130 months under Fed. R. Crim. P. 35(b). In 2007, defendant again cooperated with the government in an unrelated murder trial. Based on this latest cooperation, the government moved under Rule 35(b) for an additional 12-month sentence reduction, which the district court granted. Defendant challenged the sentence on the ground that he was denied an opportunity to be heard in response to the government’s Rule 35(b) motion. The Eighth Circuit held that defendant’s challenges did not satisfy any of the criteria listed in 18 U.S.C. § 3742(a), and therefore they were unreviewable. Defendant argued only one of the criteria – that the sentence was imposed in violation of law. This claim was without merit. This court has never held that a Rule 35(b) defendant has the right to an opportunity to be heard. Absent an unconstitutional motive, the extent to which a court exercises its discretionary authority to depart downward is not subject to review. U.S. v. Williams, 590 F.3d 579 (8th Cir. 2009).
8th Circuit allows departure 50 percent below statutory minimum without extraordinary circumstances. (711) Defendant was convicted of drug charges carrying a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A). The government moved pursuant to § 5K1.1 and 18 U.S.C. § 3553(e) for a departure based on defendant’s substantial assistance. The court sentenced defendant to 180 months. The Eighth Circuit initially vacated the judgment, but the Supreme Court granted certiorari and remanded for further consideration in light of Gall v. U.S., 552 U.S. 38 (2007). At sentencing, the district court stated defendant’s assistance was not extraordinary, for purposes of a 50 percent departure, and that his assistance was average, so it was going to depart by 40 percent. The court also suggested that if permitted, it would depart to 50 or even 55 percent. The Eighth Circuit held that the district court mistakenly believed that it did not have the authority to reduce defendant’s sentence by 50 percent or more of the statutory minimum penalty based on defendant’s substantial assistance, in the absence of extraordinary circumstances. Although the court’s understanding of circuit precedent was reasonable at the time of defendant’s sentencing, the Supreme Court’s decision in Gall changed this precedent. Extraordinary assistance was not required for a 50 percent reduction. U.S. v. Jensen, 586 F.3d 620 (8th Cir. 2009).
8th Circuit holds that it lacked jurisdiction to hear appeal of Rule 35(b) sentence. (711) Defendant originally received a 41-month sentence, but in response to the government’s Rule 35(b) motion, the court later reduced his sentence to 36 months. Defendant had requested a further reduction based on the extent and risks of his cooperation. He appealed the 36-month sentence as unreasonable. The Eighth Circuit held that it lacked jurisdiction to hear the appeal of the Rule 35(b) sentence. Jurisdiction over an appeal of a Rule 35(b) sentence is governed by 18 U.S.C. § 3742(a). Defendant did not satisfy any of the criteria of § 3742(a)(1)-(4). Absent an unconstitutional motive, the extent to which a district court exercises its discretionary authority to depart downward is not subject to review. U.S. v. Haskins, 479 F.3d 955 (8th Cir. 2007).
8th Circuit holds that defendant did not establish that government’s motives were unconstitutional. (711) The government filed a § 5K1.1 motion for a substantial assistance departure, but refused to make a motion under § 3553(e). Thus, the district court lacked authority to depart below the 120-month mandatory minimum sentence. Defendant argued that the district court erred in denying his motion to compel the government to make the § 3553(e) motion. He noted that the government provided no reasons for withholding the motion, which created an inference that the government’s motives were irrational and illegitimate. The Eighth Circuit held that the government provided a sufficient and proper reason to avoid such an inference. The government stated its belief that no further reduction in defendant’s sentence was appropriate. Thus, the government’s reason for withholding a § 3553(e) motion was based “not on a failure to acknowledge or appreciate [the defendant’s] help, but simply on its rational assessment of the cost and benefit that would flow from moving.” Defendant presented no evidence that went beyond his general allegations of improper motive. U.S. v. Pamperin, 456 F.3d 822 (8th Cir. 2006).
8th Circuit holds that defendant did not show that refusal to move for substantial assistance departure was in bad faith. (711) A detailed cooperation agreement required defendant to “fully and completely cooperate” in the investigation of criminal activity. Defendant pled guilty and then testified at the trial of several co-conspirators and before a grand jury which was considering other individuals. She was subsequently granted pretrial release. Defendant then tested positive for drug use within two months of being released. At sentencing, the government refused to file the substantial assistance motion. Defendant contended that the district court should have granted her motion to compel the government to file the § 5K1.1 motion because she had met her cooperation obligation. A plea agreement in which the government specifically retains its discretion under § 5K1.1 will defeat a motion to compel unless the defendant is able to show unconstitutional motive or bad faith. The Eighth Circuit ruled that defendant did not show that the government acted in bad faith. At the release hearing the government indicated that its reaction to a violation of release would be to enforce the 10-year mandatory minimum, but it later agreed to imposition of the safety valve to take her below that 10-year minimum. The record showed the government’s clear position that it did not believe that her assistance had been substantial and its only comment about her drug use was that it undercut her value as a future witness. Not only did defendant’s grand jury testimony not lead to any indictments, but the prosecutor who presented it did not believe she was being completely truthful and stated that he would not allow her to testify if there ever were a trial. The denial of the § 5K1.1 was well within the government’s discretion. U.S. v. McClure, 338 F.3d 847 (8th Cir. 2003).
8th Circuit finds appeal over lack of Rule 35 motion was premature. (711) Defendant claimed that he gave substantial assistance to the government and that the court should have reduced his sentence for that reason. The Eighth Circuit found this argument premature, since defendant bargained for a Rule 35 motion to reduce his sentence, not for a § 5K1.1 downward departure motion. Under Rule 35, the government may move for a reduced sentence at any time up to one year after sentencing. After defendant’s sentencing hearing, which took place in March 2000, an FBI agent testified that the government was still trying to corroborate some of the information defendant had provided. Because the government could still decide to file a Rule 35 motion, the issue was not ripe for review. U.S. v. Spears, 235 F.3d 1150 (8th Cir. 2001).
9th Circuit permits non-substantial assistance factors to affect Rule 35(b) ruling. (711) Under Federal Rule of Criminal Procedure 35(b), a court may reduce a defendant’s sentence “if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” The Ninth Circuit held that once a court determines that a defendant provided substantial assistance, it may consider factors other than that assistance, including the factors listed in 18 U.S.C. § 3553(a), to determine the extent to which the defendant’s sentence should be reduced. U.S. v. Tadio, 663 F.3d 1042 (9th Cir. 2011).
9th Circuit finds no jurisdiction to review extent of post-sentence substantial assistance. (711) The government moved under Federal Rule of Criminal Procedure 35(b) for a 24-month reduction in defendant’s sentence based on his substantial, post-sentencing assistance in prosecuting other defendants. The district court granted the reduction and declined defendant’s request to reduce his sentence by more than 24 months. In denying a greater reduction, the district court cited the circumstances of defendant’s offense and his criminal history. On defendant’s appeal, the government argued that the court of appeals lacked jurisdiction. The Ninth Circuit held that it lacked jurisdiction to consider defendant’s challenge to the extent of the reduction warranted by his substantial assistance; it had jurisdiction only to consider defendant’s claim that the district court improperly relied on factors other than his substantial assistance. U.S. v. Tadio, 663 F.3d 1042 (9th Cir. 2011).
9th Circuit finds no jurisdiction to review extent of post-sentence substantial assistance. (711) The government moved under Federal Rule of Criminal Procedure 35(b) for a 24-month reduction in defendant’s sentence based on his substantial, post-sentencing assistance in prosecuting other defendants. The district court granted the reduction and declined defendant’s request to reduce his sentence by more than 24 months. In denying a greater reduction, the district court cited the circumstances of defendant’s offense and his criminal history. On defendant’s appeal, the government argued that the court of appeals lacked jurisdiction. The Ninth Circuit held that it lacked jurisdiction to consider defendant’s challenge to the extent of the reduction warranted by his substantial assistance; it had jurisdiction only to consider defendant’s claim that the district court improperly relied on factors other than his substantial assistance. U.S. v. Tadio, 663 F.3d 1042 (9th Cir. 2011).
9th Circuit rules pre-sentence cooperation must be assessed in 5K motion, and not only in Rule 35 motion. (711) At defendant’s sentencing, the government filed a motion that credited defendant with assisting the government in an ongoing investigation and asked for a one-level downward departure for substantial assistance. The motion noted that defendant had provided information about other matters but that the value of that information could not then be evaluated. The motion stated that if the information concerning other investigations proved to be valuable, the government would file a motion under Federal Rule of Criminal Procedure 35(b) seeking a further reduction in sentence. Defendant sought a continuance of his sentencing to allow the government to assess his other efforts at cooperation, but the court denied that motion. The Ninth Circuit held that the government could not postpone the evaluation of defendant’s pre-sentencing cooperation beyond sentencing in order to address that cooperation in a Rule 35(b) motion. When the government files a 5K1.1 motion, the court must insist that the motion be based on an evaluation of all the assistance that defendant has provided, but the court need not delay sentencing to allow defendant to complete his cooperation. U.S v. Awad, 371 F.3d 583 (9th Cir. 2004).
9th Circuit holds that extent of substantial assistance reduction is not appealable. (711) The government filed a motion under Federal Rule of Criminal Procedure 35(b) seeking a reduction in defendant’s sentence in return for his substantial assistance to authorities. The district court granted the motion, but defendant appealed, arguing that he should have received a greater reduction. The Ninth Circuit held that it lacked jurisdiction over defendant’s appeal because appeals challenging the extent of a Rule 35 sentence reduction do not fall within any of the categories of appealable sentences authorized by 18 U.S.C. § 3742. U.S. v. Pedroza, 355 F.3d 1189 (9th Cir. 2004).
9th Circuit says court may rely on factors other than substantial assistance in denying a Rule 35(b) motion. (711) The district court denied the government’s second motion under Federal Rule of Criminal Procedure 35(b) on the ground that the sentence it had imposed in response to the government’s first Rule 35(b) motion was a fair sentence that reflected the extent of the defendant’s criminal conduct. The Ninth Circuit affirmed. It held that although a court may rely only on the defendant’s substantial assistance in deciding to grant a Rule 35(b) motion, a court may rely on factors other than the extent of the defendant’s substantial assistance in denying a Rule 35(b) motion. U.S. v. Doe, 351 F.3d 929 (9th Cir. 2003).
9th Circuit finds it has jurisdiction over defendant’s appeal of denial of Rule 35(b) motion. (711) When the district court denied the government’s motion under Federal Rule of Procedure 35(b) seeking a downward departure based on defendant’s substantial assistance, defendant appealed to the Ninth Circuit. That court held that although 18 U.S.C. § 3742 “normally does not permit an appeal of a denial of a Rule 35(b) motion,” it had jurisdiction because defendant was arguing that the district court considered improper factors in deciding whether to deny the government’s Rule 35(b) motion. U.S. v. Doe, 351 F.3d 929 (9th Cir. 2003).
9th Circuit says denial of evidentiary hearing on Rule 35(b) motion is not appealable. (711) After sentencing, the government moved to reduce defendant’s sentence under Fed. R. Crim. P. 35(b) based on his substantial assistance. After a telephone conference call, the judge reduced the sentence more than the government requested, but refused to hold an evidentiary hearing. Defendant appealed. The Ninth Circuit held that Rule 35(b) rulings are not appealable unless they satisfy the criteria for sentence appeals under 18 U.S.C. § 3742. The court thus followed the Eleventh Circuit’s opinion in U.S. v. Chavarria-Herrara, 15 F.3d 1033, 1035-36 (11th Cir. 1994), and rejected the First Circuit’s contrary holding in U.S. v. McAndrews, 12 F.3d 273, 277 (1st Cir. 1993). The appeal was dismissed. U.S. v. Arishi, 54 F.3d 596 (9th Cir. 1995).
10th Circuit upholds consideration of defendant’s role in determining extent of Rule 35(b) departure. (711) Defendant’s original offense level was 31, which resulted in a guideline range of 108-135 months. The government later filed a Rule 35(b) motion to reduce defendant’s sentence. The motion recommended a two-level reduction in offense level to 29 and a sentence of 87 months, based on a guideline range of 87-108 months. The district court granted the motion, but only reduced defendant’s sentence to 97 months, saying that this partial reduction was appropriate given her “pivotal role” in the offense. Defendant claimed that her sentence was imposed in violation of law because the district court considered a factor other than her assistance to the government in determining her sentence. The Tenth Circuit found no error in the court’s consideration of defendant’s role in the offense. The only court to address whether factors other than substantial assistance may be considered in determining the size of a Rule 35(b) sentence reduction rejected defendant’s exclusivity argument. See U.S. v. Manella, 86 F.3d 201 (11th Cir. 1996). Because defendant’s sentence was within the guideline range, the sentence was not otherwise reviewable. U.S. v. Neary, 183 F.3d 1196 (10th Cir. 1999).
10th Circuit holds Rule 35(b) permits court to reduce fine. (711) Based on defendant’s cooperation with police, the district court granted the government’s initial Rule 35(b) motion to reduce his term of imprisonment. The government then filed a second Rule 35(b) motion, seeking to further reduce his sentence and to eliminate or reduce his fine. The district court further reduced his term of imprisonment, but ruled it did not have authority under Rule 35(b) to reduce a fine, because fines are controlled by 18 U.S.C. § 3573. The Tenth Circuit held that Rule 35(b) permits a court to reduce a fine. The rule allows a court to reduce a sentence in to reflect a defendant’s substantial assistance in the prosecution of others in accordance with the sentencing guidelines. The guidelines clearly include fines as a type of criminal sentence. The statutes under which defendant was convicted also include fines as a component of the sentence. U.S. v. McMillan, 106 F.3d 322 (10th Cir. 1997).
11th Circuit holds that Rule 35(b) did not reset limitation period for filing § 2255 motion. (711) Defendant was sentenced in 2004 on drug charges. In 2007, the government moved pursuant to Rule 35(b) to reduce defendant’s sentence. The court granted the motion and reduced defendant’s sentence from 90 months to 66 months. Three months after the court granted the government’s Rule 35(b) motion, and over three years after the time for appealing the 2004 judgment had expired, defendant moved the district court under § 2255 to vacate his sentence, claiming ineffective assistance of counsel. In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress created a one-year statute of limitations for § 2255 motions. The relevant date here was the date on which the judgment of conviction became final. The Eleventh Circuit held that the reduction of defendant’s sentence under Rule 35(b) had no impact on the limitation period for defendant’s motion to vacate. A Rule 35(b) modification does not constitute a new judgment of conviction that restarts § 2255’s statute of limitations clock. Murphy v. U.S., 634 F.3d 1303 (11th Cir. 2011).
11th Circuit orders resentencing based on prosecutor’s withdrawal of substantial assistance motion. (711) Defendant argued that the prosecutor retaliated against him for exercising his Sixth Amendment right to a jury trial by withdrawing the previously filed §5K1.1 downward departure motion. The Eleventh Circuit remanded, although the withdrawal of the motion was arguably harmless. (The plea agreement obligated the prosecutor to recommend a 144-month sentence, and the judge imposed an 87-month sentence). What concerned the panel was that the prosecutor may have misled the judge about the nature and extent of defendant’s cooperation. The prosecutor stated that defendant stopped cooperating with the government once he withdrew his guilty plea. However, the §5K1.1 motion was filed after defendant moved to withdraw his guilty plea. In addition, while defendant did initially deny his participation in a home invasion, he admitted his involvement by March 2002. The §5K1.1 motion was not filed until December 2002, indicating that defendant’s initial lack of candor did not undermine his “substantial” cooperation. U.S. v. Barner, 572 F.3d 1239 (11th Cir. 2009).
11th Circuit finds defendant did not make threshold showing that government withheld § 5K1.1 motion to punish defendant for exercising right to trial. (711) Defendant argued that the government refused to file a motion for a substantial assistance departure under § 5K1.1 to punish him for exercising his Sixth Amendment right to a jury trial. The Eleventh Circuit found it unnecessary to reach that issue because defendant was unable to make the required threshold showing of impropriety. The government offered defendant a § 5K1.1 departure in exchange for both defendant’s cooperation and guilty plea, and defendant expressly acknowledged that the government’s offer was conditioned on his entry of a guilty plea. Thus, the offer was made “in the ‘give-and-take’ of plea bargaining” in which defendant was “free to accept or reject the prosecution’s offer.” In this context, there was “no such element of punishment or retaliation,” and the government’s later refusal to file a § 5K1.1 motion was constitutionally permissible. In addition, the record independently supported an affirmance. There was no claim or evidence that defendant could have provided any assistance in expectation of a § 5K1.1 motion. U.S. v. Dorsey, 554 F.3d 958 (11th Cir. 2009).
11th Circuit allows government to direct substantial assistance motion to specific count. (711) The court sentenced defendant to life imprisonment for Count 1 (heroin conspiracy), and 240 months’ imprisonment for Count 3 (importing heroin), with the terms to run concurrently. After sentencing, the government moved under Rule 35(b) to reduce defendant’s sentence for Count 1 to 240 months based on his substantial assistance. The district court granted the motion in part, reducing the sentence for Count 1 to 120 months, but rejected defendant’s argument that the motion applied to both terms of imprisonment. The Eleventh Circuit held that the government did not overstep its discretion by specifying the term to which its Rule 35(b) motion should apply, and the district court did not err in acting in accordance with this specification. The government’s discretion to seek a substantial assistance reduction is vast. There is no reason why this discretion should not extend to deciding to which term the Rule 35(b) motion should be applied. U.S. v. McNeese, 547 F.3d 1307 (11th Cir. 2008).
11th Circuit finds defendant did not make threshold showing that government withheld §5K1.1 motion to punish defendant for exercising right to trial. (711) Defendant argued that the government refused to file a motion for a substantial assistance departure under §5K1.1 to punish him for exercising his Sixth Amendment right to a jury trial. The Eleventh Circuit found it unnecessary to reach that issue because defendant was unable to make the required threshold showing of impropriety. The government offered defendant a §5K1.1 departure in exchange for both defendant’s cooperation and guilty plea, and defendant expressly acknowledged that the government’s offer was conditioned on his entry of a guilty plea. Thus, the offer was made “in the ‘give-and-take’ of plea bargaining” in which defendant was “free to accept or reject the prosecution’s offer.” In this context, there was “no such element of punishment or retaliation,” and the government’s later refusal to file a §5K1.1 motion was constitutionally permissible. In addition, the record independently supported an affirmance. There was no claim or evidence that defendant could have provided any assistance in expectation of a §5K1.1 motion. U.S. v. Dorsey, 554 F.3d 958 (11th Cir. 2009), vacating and superseding U.S. v. Dorsey, 512 F.3d 1321 (11th Cir. 2008), vacating and superseding U.S. v. Dorsey, 497 F.3d 1221 (11th Cir. 2007).
11th Circuit allows government to direct substantial assistance motion to specific count. (711) The court sentenced defendant to life imprisonment for Count 1 (heroin conspiracy), and 240 months’ imprisonment for Count 3 (importing heroin), with the terms to run concurrently. After sentencing, the government moved under Rule 35(b) to reduce defendant’s sentence for Count 1 to 240 months based on his substantial assistance. The district court granted the motion in part, reducing the sentence for Count 1 to 120 months, but rejected defendant’s argument that the motion applied to both terms of imprisonment. The Eleventh Circuit held that the government did not overstep its discretion by specifying the term to which its Rule 35(b) motion should apply, and the district court did not err in acting in accordance with this specification. The government’s discretion to seek a substantial assistance reduction is vast. There is no reason why this discretion should not extend to deciding to which term the Rule 35(b) motion should be applied. U.S. v. McNeese, __ F.3d __ (11th Cir. Nov. 3, 2008) No. 08-10093.
11th Circuit bars Rule 35(b) reduction for assistance provided more than a year after sentencing. (711) Defendant pled guilty to drug charges. He provided the government with information about the cocaine trafficking operation in which he was involved, and identified a major cocaine distributor. The government was unable to use the information for a variety of reasons. Several years later, after the distributor was apprehended in another district, defendant testified for the government at the man’s trial. Defendant’s testimony was the same evidence that he had provided the government several years earlier. The government filed a Rule 35(b) motion for a sentence reduction. The Eleventh Circuit held that the district court did not have jurisdiction to consider a Rule 35(b) motion for a sentence reduction, where defendant provided information known to him prior to his sentencing, but that information was not useful to the government until over a year after defendant’s sentencing. The one-year time period for the government to file a Rule 35(b) motion is jurisdictional. The only exception is where the defendant provides information or evidence unknown by the defendant until one year or more after imposition of sentence. U.S. v. Orozco, 160 F.3d 1309 (11th Cir. 1998).
11th Circuit finds government’s Rule 35(b) motion gave defendant sufficient relief. (711) Defendant argued that he was entitled to a Rule 35(b) motion to reduce his sentence in exchange for his cooperation in locating certain fugitives. He claimed that the government, through a Deputy U.S. Marshal, promised to reduce his 336-month sentence to 60 months. Many of defendant’s meetings with the Marshal took place after defendant’s attorney learned of them and demanded they cease. After defendant filed a motion to compel a Rule 35(b) motion, the magistrate judge found no enforceable agreement to reduce defendant’s sentence—the Marshal only promised to bring defendant’s cooperation to the attention of prosecutors. The government then filed a Rule 35(b) motion recommending a 3-year reduction to 25 years, and moved to dismiss defendant’s appeal as moot. The Eleventh Circuit held that defendant got exactly what he was asking for—a Rule 35(b) motion from the government. The government acknowledged that defendant’s cooperation was substantial, and defendant was free to argue that his assistance entitled him to a greater reduction than the government recommended. U.S. v. Calderon, 127 F.3d 1314 (11th Cir. 1997).
11th Circuit says court considered proper factors in sentencing on Rule 35(b) motion. (711) The government moved under Rule 35(b), Fed. R. Crim. P., to reduce defendant’s sentence for post sentence cooperation. Although the government recommended a 60-month reduction, the court granted only a seven month reduction. Defendant argued that the court improperly considered factors other than his substantial assistance in ruling on the Rule 35(b) motion. The Eleventh Circuit upheld its jurisdiction to consider the claim. Defendant did not challenge the merits of the court’s Rule 35(b) determination. Instead, he claimed that the court misapplied Rule 35(b) by considering factors other than his substantial assistance. Thus, defendant’s claim was that his sentence was imposed in violation of law. U.S. v. Manella, 86 F.3d 201 (11th Cir. 1996).
11th Circuit says court may consider factors other than substantial assistance in limiting extent of Rule 35(b) reduction. (711) The government moved under Rule 35(b) to reduce defendant’s sentence by 60 months based on his post sentencing cooperation. The district court granted only a seven month reduction, citing the factors under 18 U.S.C. § 3553(a)(1) and (2), including the seriousness of the offense. The court also mentioned the leniency of the original sentence. Defendant argued that the court improperly considered factors other than his substantial assistance in ruling on the Rule 35(b) motion. The Eleventh Circuit held that Rule 35(b) does not prohibit the court from considering factors outside a defendant’s assistance that militate against a sentence reduction. Under U.S. v. Chavarria Herrara, 15 F.3d 1033 (11th Cir. 1994), a court may not consider factors other than a defendant’s cooperation in deciding whether to reduce the sentence. The rule here was not inconsistent. The only factor that may militate in favor of a Rule 35(b) reduction is the defendant’s substantial assistance. However, a court may consider other factors that militate against a reduction, or suggest a smaller reduction. U.S. v. Manella, 86 F.3d 201 (11th Cir. 1996).
11th Circuit says court considered proper factors in sentencing on Rule 35(b) motion. (711) The government moved under Rule 35(b), Fed. R. Crim. P., to reduce defendant’s sentence for post sentence cooperation. Although the government recommended a 60-month reduction, the court granted only a seven month reduction. Defendant argued that the court improperly considered factors other than his substantial assistance in ruling on the Rule 35(b) motion. The Eleventh Circuit upheld its jurisdiction to consider the claim. Defendant did not challenge the merits of the court’s Rule 35(b) determination. Instead, he claimed that the court misapplied Rule 35(b) by considering factors other than his substantial assistance. Thus, defendant’s claim was that his sentence was imposed in violation of law. U.S. v. Manella, 86 F.3d 201 (11th Cir. 1996).
11th Circuit holds refusal to grant government’s request for Rule 35(b) hearing forced breach of plea agreement. (711) As part of defendant’s plea agreement, the government agreed to fully advise the court at the time of any Rule 35 motion made by defendant of the nature and extent of defendant’s post-sentence cooperation. Defendant filed a Rule 35 motion and the government did not respond. The district court denied the motion. The government then filed a Rule 35 motion and a request for a hearing on defendant’s assistance after his sentence. The motion, which for security reasons did not detail defendant’s cooperation, was denied. The 11th Circuit held that the court’s refusal to grant the government’s request for an evidentiary hearing forced a breach of the plea agreement. Implicit in the agreement was the government’s obligation to file a Rule 35 motion in the event that the government deemed defendant’s post-sentencing cooperation to be substantial. In refusing an evidentiary hearing, the district court effectively prevented the government from presenting its Rule 35 motion. U.S. v. Hernandez, 34 F.3d 998 (11th Cir. 1994).
D.C. Circuit upholds government’s refusal to move for sentence below mandatory minimum. (711) The government filed a substantial assistance motion under U.S.S.G. § 5K1.1, asking the court to sentence defendant below the applicable guideline sentencing range. However, the government refused to file a motion under 18 U.S.C. § 3553(e), which would have authorized the court to sentence defendant below the statutory mandatory minimum sentence of 120 months. The D.C. Circuit rejected defendant’s argument that the government’s refusal to make the § 3553(e) motion was irrational and denied him due process. The government explained that defendant’s “long-term and extensive history of drug dealing … and the level of respect he enjoyed around the neighborhood, suggest[ed] that [he] had a more intimate knowledge of the violence around that area that he chose to share.” Thus, although his cooperation was sufficient to warrant a significant departure from the guideline range of 262-327 months, it was not sufficient to earn him a departure below the 120-month mandatory minimum. U.S. v. Motley, 587 F.3d 1153 (D.C. Cir. 2009).