United States v. Tadio
2011 U.S. App. LEXIS 23243
| 9th Cir. | 2011Background
- Tadio pled guilty to witness intimidation under 18 U.S.C. § 1512(b)(1).
- PSR calculated Offense Level 27 and Criminal History Category V, yielding a 120–150 month range under guidelines (limited by statutory max).
- After arrest, Tadio cooperated against associates; government moved for downward departure to 70–87 months; district court sentenced 87 months in March 2008.
- Post-sentencing, Tadio provided additional credible cooperation; government moved in January 2010 for a 24-month Rule 35(b) reduction; defense sought 48 months, arguing misvaluation of cooperation and harsher comparisons to others.
- District court granted 24-month reduction, to 63 months, citing substantial assistance and consistency with Guidelines; Tadio appealed alleging improper consideration of non-assistance factors and low valuation of assistance.
- Issue: Whether non-assistance factors may influence the extent of a Rule 35(b) reduction after substantial assistance is found; Held: Yes, non-assistance factors may be considered and may increase or decrease the reduction beyond the value of assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can non-assistance factors influence Rule 35(b) reductions? | Tadio: non-assistance factors should not be used to set the reduction amount. | Government: non-assistance factors may be used to determine extent of reduction. | Symmetrical consideration allowed; non-assistance factors may affect reduction in either direction. |
| Is appellate jurisdiction proper to review the amount of reduction? | Tadio argues appellate review of reduction amount is available under § 3742. | Government: jurisdiction only to review legal questions; reduction amount reviewable. | Jurisdiction exists to review the legality of the use of factors; the case is dismissed as to the reduction amount and affirmed on the legal standard. |
| Did Rule 35(b) amendments permit considering § 3553(a) factors? | Tadio) Rule 35(b) only allows assistance-based adjustment. | Government: 3553(a) factors may be considered alongside assistance. | Rule 35(b) permits considering § 3553(a) factors in determining the amount of reduction, symmetrically. |
| Was the district court’s approach consistent with Rule 35(b) text and amendments? | Tadio: approach misreads reflect language and 2002 amendments. | Government: current text allows considering non-assistance factors. | Court adopted symmetrical interpretation consistent with text and amendments. |
Key Cases Cited
- Clawson v. United States, 650 F.3d 530 (4th Cir.2011) (whether a district court can rely on non-assistance factors in Rule 35(b) proceedings)
- Grant v. United States, 636 F.3d 803 (6th Cir.2011) (en banc; non-assistance factors may reduce or limit reduction under Rule 35(b))
- Shelby v. United States, 584 F.3d 743 (7th Cir.2009) (non-assistance factors may temper Rule 35(b) relief; one-way vs. symmetrical approach)
- Poland v. United States, 562 F.3d 35 (1st Cir.2009) (assistance-only rule in Rule 35(b) context discussed; mentions limitation below mandatory minimum)
- Manella v. United States, 86 F.3d 201 (11th Cir.1996) (non-assistance factors may influence reduction, not solely limited to assisting value)
- Doe v. United States, 351 F.3d 929 (9th Cir.2003) (recognizes use of §3553(a) factors in denying Rule 35(b) relief)
- Auld v. United States, 321 F.3d 861 (9th Cir.2003) (assistance-based relief; relates to Rule 35(b) interpretations)