United States v. Davis, 2012 U.S. App. LEXIS 9427

Davis robbed a store at gunpoint, exiting his car with a loaded firearm and taking cash.
He was charged with multiple counts but pled guilty to Counts One and Two; Count Three was dismissed.
PSR calculated a guidelines range of 114–121 months before reductions.
Government moved for a 5K1.1 reduction for substantial cooperation; district court granted four-level reduction.
District court then reduced Davis' offense level but noted violent nature and Davis' prior record as factors relevant to the extent of the reduction.
Rule 35(b) hearing granted further reduction request; court decided a 14-month additional reduction, yielding 72 months total; Davis appealed challenging the methodology.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May a district court consider non-cooperation factors in a Rule 35(b) reduction?	Davis: only cooperation may be considered.	Government: other factors may be considered for extent of reduction.	Yes; court may consider additional factors in determining the extent of the reduction.

United States v. Clawson, 650 F.3d 530 (4th Cir. 2011) (threshold grant decision limited to cooperation; not governing extent of reduction)
United States v. Chapman, 532 F.3d 625 (7th Cir. 2008) (district court may consider other factors when determining extent of Rule 35(b) reduction)
United States v. Doe, 351 F.3d 929 (9th Cir. 2003) (district court's consideration of non-cooperation factors proper for extent reduction)
United States v. Rublee, 655 F.3d 835 (8th Cir. 2011) (affirmed use of other factors to limit the departure under Rule 35(b))
United States v. Neary, 183 F.3d 1196 (10th Cir. 1999) (recognizes consideration of §3553(a) factors in Rule 35(b) reductions)
United States v. Pridgen, 64 F.3d 147 (4th Cir. 1995) (jurisdiction and scope of Rule 35(b) review; related to procedure)
United States v. Ruiz, 536 U.S. 622 (2002) (supreme court on jurisdiction of appellate review in sentencing)