872 F.3d 717
5th Cir.2017Background
- Aaron McMahan pleaded guilty to conspiracy to possess with intent to distribute controlled substances and was sentenced (initially 188 months, later reduced to 151 months).
- After sentencing, McMahan provided information that later contributed to the prosecution and sentencing of another drug trafficker.
- The Government filed a Rule 35(b) motion more than six months after McMahan’s sentence, seeking a reduction based on his post‑sentencing substantial assistance.
- The district court denied the Government’s Rule 35(b) motion two days after filing, before McMahan received notice or an opportunity to respond, stating it would not be persuaded to reduce the sentence even if the facts alleged were accepted.
- McMahan appealed, arguing the district court committed reversible error by ruling without providing notice and an opportunity to be heard and asserting a due process violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 35(b) requires notice and an opportunity to be heard before the court rules on a government motion to reduce sentence | McMahan: district court must provide notice and opportunity to respond (relying on Second Circuit's Gangi rule) | Government/Court: Rule 35(b) contains no such requirement; post‑2007 text removed guideline reference so §5K1.1 procedures don't control | No. Rule 35(b) does not require notice or a hearing; district court did not err in ruling before McMahan responded |
| Whether Gangi (2d Cir.) establishes a general right to respond under Rule 35(b) | McMahan: Gangi requires opportunity to respond, drawing analogy to §5K1.1 procedures | Government/Court: Gangi relied on pre‑2007 Rule 35(b) language referencing the Sentencing Guidelines; that language was deleted and Gangi is not controlling | Gangi’s reasoning is inapplicable post‑amendment; Fifth Circuit declines to adopt it |
| Whether due process required notice/hearing in this Rule 35(b) proceeding | McMahan: denial without notice violated due process (argued but not developed) | Government/Court: many post‑sentencing rights (presence, counsel) do not apply; Rule 35(b) is discretionary and reduces only potential punishment | Court declined to reach and rejected the undeveloped due process claim as meritless in context; no violation found |
Key Cases Cited
- United States v. Gangi, 45 F.3d 28 (2d Cir. 1995) (held Rule 35(b) required opportunity to respond based on pre‑2007 text linking Rule 35(b) to §5K1.1)
- United States v. Lightfoot, 724 F.3d 593 (5th Cir. 2013) (standard of review and discussion of differences between sentencing and post‑sentencing rights)
- United States v. Grant, 493 F.3d 464 (5th Cir. 2007) (Rule 35(b) gives court independent discretion; government not bound by its recommendation)
- United States v. Palomo, 80 F.3d 138 (5th Cir. 1996) (no right to counsel at Rule 35(b) proceedings)
- United States v. Booker, 543 U.S. 220 (2005) (reason for 2007 amendment removing mandatory guideline language from Rule 35)
- Wade v. United States, 504 U.S. 181 (1992) (district courts may review a prosecutor’s refusal to file a substantial‑assistance motion when refusal is allegedly unconstitutional)