Grant decided en banc: Rule 35s

This discussion is long, but this issue is a big one and this decision is one for which many of us have been waiting....

United States v. Grant, No. 07–3831 (6th Cir. Jan. 11, 2011) (published). En banc. Majority of Chief Judge Batchelder and Judges Gibbons (authored majority opinion), Martin, Boggs, Gilman, Rogers, Sutton, Cook, McKeague, Griffin, and Kethledge. Dissents and concurrences are detailed below.

We’ve blogged about this case in the past. Are the 3553(a) factors fair game once a Rule 35 releases the mandatory minimum?


* April 15, 2005, defendant pleaded guilty to the knowing possession of a firearm in furtherance of a drug trafficking crime (mandatory minimum five years), conspiracy to commit money laundering (maximum sentence of twenty years), operation of a continuing criminal enterprise (mandatory minimum twenty years). Mandatory minimum sentence was thus twenty-five years.

* Guideline range of 324 to 405 months for the continuing criminal enterprise and money laundering counts, with sentence for the firearm count to be served consecutively. PSR recommended the minimum guideline sentence of 384 months (32 years): 324 months on the continuing-criminal-enterprise and money-laundering counts plus the 60-month mandatory minimum for the gun.

* Before sentencing, the government requested a downward departure under 5K1.1. Government explicitly did not request a departure under 18 U.S.C. § 3553(e), so district court lacked authority to impose a sentence below the mandatory minimum. Government recommended the statutory minimum sentence of 25 years (7 years below the bottom end of the GL range).

* Government indicated that if the defendant continued to testify truthfully the government would file a Rule 35(b) motion recommending a further reduction to 16 years.

* The district sentenced the defendant to 300 months (25 years). On appeal, the panel affirmed: United States v. Grant, 214 F. App’x 518 (6th Cir. 2007).

* April 16, 2007, the government filed a request for a sentence reduction under Rule 35(b). District court for the first time had the authority to impose a sentence below the statutory minimum. Government noted that the defendant had testified for the prosecution in a state homicide trial. It requested a 9-year sentence reduction (to 16 years), which was equal to half of the sentence originally recommended in the PSR.

* District court granted the government’s Rule 35(b) motion and reduced the sentence to 192 months (16 years). Defendant appealed.


* While the appeal ultimately sought a greater reduction in sentence, the argument was that the methodology the district court used to impose sentence was in violation of the law. The defendant claimed that the district court committed an error of law by misapprehending the factors it was allowed to consider in deciding the Rule 35 motion. The Court thus had jurisdiction under 18 U.S.C. § 3742(a)(1).


* Whether district courts may consider factors beyond substantial assistance in ruling on a Rule 35(b) motion to reduce sentence, and if such factors may be considered, how do they impact the extent of any reduction.


* Text of rule does not tell whether it authorizes district courts to look to § 3553(a) factors in deciding the extent of a reduction. Based purely on a reading of the text, the Court could not conclude that consideration of the § 3553(a) factors is prohibited, permitted, or required.

* Looking outside text, however, sheds light. The title of Rule 35(b) is: "Reducing a Sentence for Substantial Assistance." This title undermines the defendant’s position. While a plain reading of the text of the rule may be ambiguous, examination of the context of the rule suggests that the district court acted within its discretion in examining only the value of the defendant’s assistance.

* Court has rejected the notion that factors not related to cooperation may be considered in connection with a motion under § 3553(e) motion. Court cites United States v. Bullard.

* Court finds that "At most, the 2002 amendment injected a bit of ambiguity into the text of Rule 35(b). The amendment does not speak to consideration of the § 3553(a) factors. The amendment does not change the purpose of Rule 35(b) or require a departure from the longstanding practice of interpreting the rule in lockstep with § 3553(e) and § 5K1.1. Upon reading the text of the rule in conjunction with its history and broader statutory context, we resolve the ambiguity against [the defendant’s] favored interpretation of the amended rule and conclude that Rule 35(b) permits reductions based on substantial assistance rather than other factors."

* In terms of Booker, the Court notes that the Sixth Amendment right to a jury trial, the topic of concern in Booker, has no application in the Rule 35 context.

* Court also notes, "Most importantly, in United States v. Dillon, 130 S. Ct. 2683, 2693 (2010), the Supreme Court held that Booker does not apply to sentence reductions under 18 U.S.C. § 3582(c)(2), a context closely analogous to Rule 35(b) reductions. Significantly, the Court analogized § 3582(c)(2) proceedings to Rule 35(b) proceedings and described both as ‘congressional act[s] of lenity’ that do not entail ‘plenary’ resentencings."

* Whether the original sentencing hearing included full consideration of the § 3553(a) factors was immaterial to the original sentence. The district court gave the lowest possible legal sentence. Application of § 3553(a) is not constitutionally required. That provision has no status beyond that which it is given by statute or rule in a given context and courts routinely sentence defendants according to mandatory minimums and without reference to the § 3553(a) factors.

* Explicit language of the rule permits relief only when there has been substantial assistance. If a court determines that a defendant did provide substantial assistance within the meaning of the rule, the rule gives the district court sufficient discretion. The granting of the motion is discretionary, as is the extent of any reduction. The government may recommend a particular reduction, but the district court may exercise its discretion as it sees fit. The district court is free to give a lesser or greater reduction than the recommendation. But the value of the substantial assistance is the governing principle in this exercise of discretion, and the reduction may not exceed the value of the defendant’s assistance.

Judge Merritt’s Concurrence:

Judge Merritt concurred "in the court’s disposition of this case because it gives the district court wide discretion to go above or below the government’s recommendation in substantial assistance cases." The judge "believe[s] this wide discretion gives the district court room in its reconsideration of the sentence to do justice in the case and avoid a sentencing process in which the prosecutor rather than a neutral magistrate controls the sentence."

Judge White, Concurring in Part and Dissenting in Part:

The judge is "not convinced that Congress intended one rule to apply to motions under § 3553(e) and a different rule to apply to motions under Rule 35(b), and given the history of the various amendments to Rule 35(b) [the judge] cannot agree with the dissent’s conclusion that the amendments changed the permissible considerations in ruling on a Rule 35(b) motion." The judge agrees with the majority that the consistent interpretation of § 3553(e) (to permit consideration of the value of the assistance and nothing else) dictates the decision in the case.

The judge concurs with the majority’s conclusion that in a Rule 35 resentencing the court’s task is to grant a reduction that reflects a defendant’s substantial assistance.

Judge Clay’s Dissent (with Judges Keith, Moore, and Cole):

Finds that, without deciding whether the district court was required to consider § 3553(a), "as the panel majority found," district courts are not prohibited from doing so. In finding that it was prohibited from doing so, the district court here committed legal error.

Finds that "Judge Gibbons’ en banc majority opinion would authorize district courts to consider myriad factors in this regard—so long as the courts do not acknowledge that the factors emanate from § 3553(a)."

The district courts are instructed by the majority opinion that Rule 35(b) does not require or authorize consideration of § 3553(a) factors, but that they may take into consideration the practicalities of the context in valuing a defendant’s substantial assistance. Many of these factors(as discussed by the majority and including the nature of the offense and the defendant’s capacity to abide by the law) are similar to the factors enumerated in § 3553(a). The "District courts will have to struggle to sort out the internal inconsistencies and ambiguities of the majority opinion, and this Court may be required to revisit the issue again in the near future," the dissent finds.

While many courts have relied on the phrase "to reflect" in holding that factors other than substantial assistance may not be considered on a Rule 35(b) motion, the 2002 amendments to the rules removed this phrasing and left Rule 35 to provide for a sentencing reduction "if the defendant’s substantial assistance" was of a certain kind.

The change in the plain language of the rule is significant to the dissent. "Whereas the word ‘reflect’ suggests the latter taking into account the former," the dissent points out, "the word ‘if’ denotes merely a condition precedent."

Once Rule 35(b) pierces the mandatory minimum, there is no reason why a defendant should be deprived of a district court’s consideration of the § 3553(a) factors to arrive at an appropriate sentence.

Dissent notes that "Although we have held that district courts may consider only the extent of a defendant’s cooperation on a pre-sentence motion for a downward departure under 18 U.S.C. § 3553(e), . . . [cites Bullard] this limitation is grounded in factors enumerated in the Sentencing Guidelines, U.S.S.G. § 5K1.1, upon which Bullard relies in part. No such factors are present with respect to Rule 35(b)." And "Bullard and the cases it cites as authority were decided at a time when the Sentencing Guidelines were mandatory, and, notably, § 3553(e) requires the reduced sentence ‘to reflect’ the defendant’s substantial assistance, phrasing that was excised from Rule 35(b)."

The dissent concludes, "Contrary to the position taken by the majority, the district court had the discretion to consider the § 3553(a) factors in the context of a Rule 35(b) motion. Whether the district court was required to do so is a question for another day."

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