United States v. Scott W. Rothstein, 939 F.3d 1286

Scott Rothstein, a former attorney, pleaded guilty to charges arising from a Ponzi scheme and entered a written cooperation agreement promising truthful, complete cooperation.
The agreement gave the Government “sole and unreviewable” discretion to evaluate the quality and significance of Rothstein’s cooperation and said the Government "may" file a Rule 35(b) motion if cooperation was favorable, but did not require filing.
Within one year of sentencing the Government filed a "placeholder" Rule 35(b)(1) motion to preserve jurisdiction, expressly reserving the right to withdraw the motion if Rothstein breached the plea agreement or lied. Rothstein’s counsel joined that filing.
Years later the Government concluded Rothstein provided false material information and moved to withdraw the Rule 35 motion; the District Court granted withdrawal and denied Rothstein’s request for an evidentiary hearing.
Rothstein appealed, arguing (1) the Government lacked power to withdraw a filed Rule 35 motion because the plea agreement did not expressly permit withdrawal, and (2) he was entitled to an evidentiary hearing to prove he had provided substantial assistance.
The Eleventh Circuit affirmed, holding the Government retained discretion to withdraw and that no evidentiary hearing was required absent claims of unconstitutional motive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Government could withdraw a previously-filed Rule 35(b) motion despite the plea agreement not expressly mentioning withdrawal	Rothstein: once the Government filed the Rule 35 motion, it lost any right to withdraw unless the agreement expressly reserved that right	Government: agreement left sole, unreviewable discretion to evaluate cooperation; the placeholder motion and its express reservations (joined by defense counsel) put Rothstein on notice and implied power to withdraw	Court: Government could withdraw; plea agreement’s grant of sole discretion includes withdrawal; no hyper-technical limitation imposed
Whether Rothstein was entitled to an evidentiary hearing to prove he provided substantial assistance	Rothstein: hearing required to show compliance and that Government breached agreement	Government: purely legal question; hearing unnecessary absent allegation of unconstitutional motive; Wade bars entitlement to a hearing on mere substantial-assistance claims	Court: No hearing required; denial was not an abuse of discretion; hearing only required if Government acted for unconstitutional reasons

United States v. Copeland, 381 F.3d 1101 (11th Cir. 2004) (standard of review for plea-agreement breach reviewed de novo)
Wade v. United States, 504 U.S. 181 (1992) (Government has power, not duty, to file substantial-assistance motions)
United States v. McNeese, 547 F.3d 1307 (11th Cir. 2008) (applies Wade principle to Rule 35(b))
United States v. Nealy, 232 F.3d 825 (11th Cir. 2000) (Government’s refusal to file/reduce sentence is unreviewable absent unconstitutional motive)
United States v. Padilla, 186 F.3d 136 (2d Cir. 1999) (distinguishable case where plea agreement expressly required filing if assistance met threshold)
United States v. Hartwell, 448 F.3d 707 (4th Cir. 2006) (holding discretion to file includes discretion to withdraw)