*3 BATCHELDER, Chief Judge; Before: KEITH, MERRITT, MARTIN, BOGGS, MOORE, COLE, GILMAN, CLAY, GIBBONS, SUTTON, ROGERS, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, and Circuit Judges. GIBBONS, J., opinion delivered the BATCHELDER, court, C.J., in which MARTIN, GILMAN, BOGGS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, JJ„ and MERRITT, 819), joined. (p. J. delivered a WHITE, at the home that Grant shared (pp. executed concurrence. J. separate 819-22), opinion Holley, one of separate with Tia his distributors. delivered heroin, dissenting part. concurring part grams and 168.8 Agents seized CLAY, 822-27), (pp. delivered a ammunition, J. Luger pistol 9mm in which separate dissenting opinion, $4,174 separate A search of a cash. COLE, JJ., KEITH, MOORE, joined. yielded Grant multi- apartment rented and ammunition. also ple firearms Grant OPINION the home money stored heroin at both GIBBONS, SMITH Circuit JULIA Hairston, the of one of of Tameka mother *4 Judge. Investigators his determined children. pled Kevin Grant Defendant-appellant Holley concealing that Grant in assisted firearm, possession conspira- of a guilty to by deposit- of his illegal the source income money laundering, oper- to commit and cy $80,000 and ing over into her bank account continuing enterprise. ation of a criminal by submitting application a false loan to to The district court sentenced Grant a 2004 Lincoln Aviator. Grant purchase twenty-five years mandatory in the prison, money also Hairston to wire instructed Af- charges. minimum sentence for those an in New from to associate Columbus by ter Grant’s sentence was affirmed a York in to conceal the order source court, government of this a panel the filed funds. pursuant to Federal Rule motion of Crimi- 23, September Grant was indicted on nal reduce Procedure to his sentence 2004, with to possession for intent distrib- his in based on substantial assistance the knowing a possession ute heroin and of of The district court prosecution others. in furtherance drug-traffick- firearm of a and granted motion reduced Grant’s January 13, ing gov- crime. On years. ap- to sixteen Grant now a superseding ernment filed indictment peals. He claims first that the district counts, an additional charging eighty-four considering court erred not the 18 conspiracy money to commit including deciding factors when U.S.C. continuing laundering operating and a Second, motion. Grant claims enterprise. subsequently criminal Grant erred in district court its calcula- plea agreement into a entered Sentencing tion under the United States government. Grant agreement, Under during original sentencing. his Guidelines 7,3, to agreed plead guilty to counts and reasons, following For the we affirm. superseding
89 of the in ex- indictment I. change remaining dismissal of for agreed parties counts. The further A. quantity heroin to of attributable agents In federal via an discovered one kilogram Grant was at least but less wiretap authorized of Grant’s cellular tele- kilograms than three and that Grant su- a heroin phone Grant headed distribu- in pervised at least five individuals his Columbus, ring Ohio, tion in area. heroin business. Grant to New York to obtain traveled 15, 2005, guilty On to April pled Grant time, than grams more of heroin at a in knowing possession a firearm he then to users in which sold the Colum- in drug trafficking furtherance of a crime bus area. Grant also “fronted” heroin to 924(c)(l)(A)(i), violation of 18 U.S.C. at least four cus- distributors sale to a minimum sen- which carried during tomers his time in New York. On 27, 2004, prison in to August years a search warrant was tence of five consecutive to imposed; conspiracy sentencing, government to Prior any other sentence laundering in violation of 18 money request commit filed a for a departure downward 1956(h), maxi- (2004). which carried a U.S.C. U.S.S.G. 5K1.1 The twenty years prison; mum sentence government explicitly request did not continuing criminal en- operation departure 3553(e); under 18 U.S.C. of 21 terprise in violation U.S.C. thus, district court the authority lacked mandatory minimum sen- carried impose sentence below the twenty years in and a prison tence of Rather, minimum. citing Grant’s “excel The prison. maximum sentence life date, government lent” cooperation sentence, therefore, mandatory minimum the statutory recommended minimum sen years prison. twenty-five was twenty-five years, years tence of seven (“PSR”) first Report The Presentence below the bottom end of the Guidelines enterprise continuing criminal grouped the range. indicated that applying money laundering counts cooperation yet was complete count. the offense of the most serious level that, if testify he continued to truthful *5 3D1.2(b) (2004). Operation See U.S.S.G. ly, government file a would motion criminal continuing enterprise of a carries to Rule recommending a 38, level of base offense see U.S.S.G. years. further reduction to sixteen At the (2004), money laundering 2D1.5 but sentencing hearing on October underlying takes the offense level of the objected Grant to the calculation of his (2004). 2Sl.l(a)(l) crime, see U.S.S.G. offense level. The court district denied under- The PSR then determined that the objections, finding that the calculations of lying money laundering offense in the PSR were The correct. district enter- continuing count was the criminal months, court then 300 sentenced Grant to prise, money laundering and thus twenty-five years, or in prison. appeal, On count carried a base offense level of 38 as panel this of court affirmed. See United specific well. The offense characteristics Grant, 214 Fed.Appx. States v. money laundering provide of a two- for Cir.2007). panel The declined to address level increase if the defendant was convict- argument Grant’s that the district court 1956(h), giving ed under 18 U.S.C. improperly range calculated his Guidelines adjust- money laundering Grant’s count an any alleged because errors were rendered ed offense level of 40. See U.S.S.G. when the imposed harmless district court (2004). 2Sl.l(b)(2)(B) grouped, Once statutory minimum Id. at sentence. therefore, had an of Grant offense level 520-21. reduced to 37 points was then three for of responsibility. With a acceptance B. V, history category criminal 16, 2007, April On the government filed Guidelines was 324 months range to 405 request for a pursu- sentence reduction imprisonment for the continuing criminal 35(b). ant to Rule One effect this mo- counts, money enterprise laundering tion was that the district for the first with for the to sentence firearm count authority impose time had to a sen- consecutively. be recom- served The PSR tence below the minimum. See guideline mended the minimum sentence 35(b)(4). government Fed.R.Crim.P. The months, thirty-two or years, indicated that Grant’s was cooperation now enter- continuing months on the criminal “substantially complete” and he had “con- prise money fol- laundering counts charges mini- tributed to the resolution lowed month the 60 majority mum pending against sentence on the firearm count. the vast of his was not as extensive prise gov- The distributors.” ... fellow heroin —that and, therefore, a lesser sen- many testified noted that Grant CCEs also ernment trial. in a state homicide The Court is not prosecution tence is warranted. requested therefore talk about or listen to whether here to reduction to sixteen nine-year history was ov- criminal the defendant’s origi- of the sentence to half years, equal money or whether errepresented in the PSR. nally recommended should be subsumed laundering count the defendant’s fami- requested the motion and the CCE or joined within Grant reduced below be further That has that his sentence at all. been ly background, a fur- argued that years. Grant and, sixteen previous hearings resolved at (a) was warranted because: ther reduction Grant, your my thinking, Mr. resolved in the assistance substantial provided he considerably. got enough I’ve favor (b) his co-conspirators; of his prosecution redoing things that have do without con- beyond what was went cooperation much to the benefit of completed, been plea agreement because by the templated defendant, but, Grant, I’m Mr. in an Ohio homi- for the state he testified against you. All I’m going to hold this carrying penal- the death prosecution cide is, going I am not to listen going say (c) supported ty; the evidence ever, any arguments, now 924(c) count under 18 U.S.C. firearm to sentences have been regard en- a two-level Guidelines could have been im- and which have been agreed upon convic- separate rather than a hancement posed. *6 (d) continuing tion; scope of Grant’s many smaller than enterprise criminal was United 6-7, Proceedings at Transcript of (e) others; of V history category a criminal (S.D. Grant, v. States No. CR-2-04-161 of Grant’s overrepresented the seriousness 2007). 27, prosecu- After the April Ohio (f) count record; money laundering actually clarified that Grant had never tion into the con- have been “subsumed” should and had nine-year to the reduction agreed count; (g) enterprise criminal tinuing argue to for a always right maintained his children had the mother of two of Grant’s reduction, the court modified its greater cancer, leaving the chil- recently died from still reiterated its position slightly, but available as parent dren without a natural rejection of Grant’s seven complete of five caregiver. a arguments: 35(b) Rule hearing A was held on the to are you’re referring issues that 27, court con- April 2007. The motion on 3553(a) is- guideline issues and Section any as to whether addi- arguments sidered at the the Court entertains sues warranted Grant’s tional reduction was sentencing, initially, not at the time of penalty in the death case testimony state Now, you if time a Rule 35 motion. that the remainder of Grant’s but indicated your assistance has argue want to a Rule were not relevant at arguments everyone de- and above what been over 35(b) hearing: outset, substantial at the being fined as today talk in is not here to The Court that, a argue can and that’s you then resentencing bringing up terms of than argument, and I’m more relevant in- enhancement two-point issues of the that---- But with willing to listen to charge. five-year consecutive stead of any guideline argument or regard to today to deter- is not here The Court up brought that were of the other issues scope and breadth mine memorandum, I to. will not listen is, enter- continuing criminal CCE—that
809 arguments, imposed law.”); At the close of that was Id. at 10-11. violation govern- granted court 625, district v. Chapman, United States 532 F.3d 35(b) (7th Cir.2008) Rule motion and reduced ment’s (explaining 628 that an as months, to 192 sixteen Grant’s sentence or sertion a “methodological alleges error timely years. appeal This followed. subject an of law jurisdiction error to our 3742(a)”) (quotations under section omit II. ted); Doe, 929, United States v. 351 F.3d Before we reach the merits of (9th Cir.2003) 932 that an (holding appel arguments, we must address jurisdiction late has under argument juris government’s that we lack to determine whether a district court can appeal. diction to hear this Where consider factors other than substantial as 35(b) motion, grants district court Rule motion); when resolving sistance a Rule 35 jurisdiction this court no has review Manella, v. United States F.3d 203 departure extent of for sub the downward (11th Cir.1996) (same); United States v. cf. stantial assistance. United Mor States Santillana, 540 F.3d Cir. an, (6th Cir.2003). 2008) (noting that jurisdic this court has However, U.S.C. exceptions created tion review a decision where district provide jurisdiction us with court misunderstood its discretion as a sentence, including review a final those law). matter of imposed “[A] after a reduction. appeal an final may defendant ‘otherwise III. (1) imposed if sentence’ was issue in The core this is appeal whether (2) law; imposed in violation of was as a may district court consider factors out- incorrect application result of an side value of the substantial assistance (3) greater than sentencing guidelines; provided by a in ruling defendant on a specified applicable the sentence in the motion to reduce his sentence (4) guideline for an range; imposed was and, considered, if such factors be there is no guideline offense for which *7 they may how affect extent the plainly (quot is Id. at unreasonable.” 792 reduction. 3742(a)). ing § 18 U.S.C. on Based differences between the texts Although ultimately seeking is a Grant 3553(e) of 18 U.S.C. and Rule 35 result- sentence, to on greater ap- reduction his 2002, ing from amendment of the rule in peal methodology he that arguing is the argues Grant that a sentence reduction impose the district court used to his sen- 35(b) solely under Rule is not limited to Specifi- tence was in violation of the law. of the value the defendant’s assistance. cally, Grant claims that the district 3553(a) Rather, he contends that factors of by misappre- committed an error law may be used as a for reducing basis it to con- hending the factors was allowed 35(b) when a Rule motion 35(b) is deciding sider in the motion. Rule Moreover, says made. he that the Therefore, Su- appeal subject his is to our 3742(a)(1).1 preme jurisdiction Court’s decision in United States v. under 18 U.S.C. (“[Section] 3742(a)(1) Booker, 220, 738, per- See id. at 794 543 U.S. 125 S.Ct. 160 (2005), appeal mits a to 621 defendant final sentence L.Ed.2d which mandates that framing part appeal challenging 1. in the Based on the of the issues over that the appellant’s panel in initial brief before the this of the sentence reduction. That view extent court, however, view, my expressed changed, in dissent from the the iteration of the panel opinion, jurisdiction was that we lacked en banc review. issues for 810 Comm’r, Limited, 324, 3553(a) 286 F.3d factors Inc. v. consider
district courts
sentence,
(6th Cir.2002).
consid-
requires
imposing
when
3553(a) factors
post-sen-
at
eration of
35(b)
matter, Rule
general
As a
is
35(b)
Final-
determinations.
tencing Rule
intended
“facilitate law enforcement
to
history of
ly,
procedural
insists
he
to elicit
enabling
government
the
valuable
a full
him
consideration
his case has denied
that,
a criminal defendant
...
assistance from
He
of
factors.
reasons
depart
by asking
court could not
he
...
because the district
after
was sentenced
origi-
minimum
at his
below the
judge to reduce
sentencing,
nal
the court should have been
compensation for the assis
sentence as
able
consider
to
provided.”
United States v.
tance
he
with the
motion.
connection
(7th Cir.2009).
743,
Shelby,
files its motion
When
arguments in turn
consider Grant’s
We
sentencing,
year
within
one
reject
and
them.
35(b)(1) controls:
A.
(1)
Upon
govern-
In
General.
to the
of Rule
first look
text
We
year
one
ment’s motion made within
words
and
give
plain
their
may
the court
reduce a sen-
sentencing,
time
meaning at the
of their en
ordinary
if:
tence
language
plain,
is
our
actment. Where
(A)
defendant,
sentencing,
after
according
...
enforce
“sole function
is to
it
provided
in in-
substantial assistance
Trustee,
Lamie v. U.S.
its terms.”
prosecuting
vestigating or
another
526, 534, 124 S.Ct.
157 L.Ed.2d
U.S.
person; and
(citation omitted).
(2004)
plain
“The
(B)
statutory language
ambiguity
reducing
ness or
the sentence accords
language
determined
reference
Sentencing
with the
commission’s
itself,
context
which
specific
guidelines
policy
statements.2
used,
language is
broader context
(2006).
35(b)(1)
Fed. Rule
P.
Crim.
as a whole.” Robinson v.
the statute
(b)(2),
Subsection
the subsection under
Co.,
340, 117
Shell
519 U.S.
S.Ct.
Oil
requested
the government
(1997).
2. version of Rule is some- Committee on Criminal Rules's notes 2007 The current the version at the Amendments. what different from in effect Booker, sentencing. the time of Grant’s After impact analysis change This not our does on Rules of Practice and Proce- Committee case, signifi- this inflates its and the dissent (b)(1)(B), deleted subsection which limit- dure Advisory by suggesting cance Com- authority to ed the court’s reduce sentence general language explanatory mittee’s about "reducing where the situations sentence import relates the of Booker somehow to Rule Sentencing with the commission's reasons, accords particular. Among 35 in other this guidelines policy Because statements.” unwarranted because same conclusion is Booker excised subsection language Advisory appears in the Committee's Sentencing had manda- made Guidelines *9 Furthermore, (b)(2) addition, 3. specifies 43(b)(4) subsection 4. In the title of Rule de- ''may” grant the district court a sentence re- proceeding scribes a Rule 35 as a “Sentence duction “if the defendant’s substantial assis- Correction” and dictates that a defendant tance involved’’ certain factors. Fed. present need not be for such a "correction or 35(b)(2). (b)(3) R.Crim.P. And subsection al- proceeding. reduction of sentence” Fed. presentence lows the district court to consider 43(b)(4). R.Crim.P. cooperation evaluating” a "[i]n "substantial assistance.” Fed.R.Crim.P. 35(b)(3). a defendant’s sub- to reflect (b)(3) con- a sentence further provides
Subsection in the in- assistance sequent, substantial a defendant’s courts that It instructs text. of another vestigation prosecution into or taken may be assistance presentence offense, to an who has committed evaluating person whether when consideration is a fac- assis- that such assistance substantial the extent provided has defendant policy guidelines not exclude the applicable this does tor Although tance. con- by Sentencing factors could be that other issued possibility statements of magnitude deciding to 28 U.S.C. when sidered Commission reduction, that the rule 994(a). it is instructive evaluating assis- a method of only specified 1984, Pub.L. Act of Sentencing Reform any reference to consid- and omitted tance 215, 98-473, § The Sen- 98 Stat.2016. No. anywhere in the factors of other eration created 18 U.S.C. tencing Reform Act also Therefore, reading although plain rule. 3582, post-sentencing which allowed for ambiguous, an of the rule is of the text in certain de- modification of sentence 35(b) as the context of Rule of examination fined situations: suggests that the district strongly a whole of Im- Imposed of an Term Modification in examin- its discretion court acted within modify may not prisonment. The court of Grant’s assistance.5 ing the value it has been imprisonment once a term (1) any case— imposed except that — B. 35(b)’s focus on argues that Rule Grant (B) modify imposed an may the court was assistance reductions for substantial to the extent imprisonment term of to the by the 2002 amendments altered by stat- expressly permitted otherwise rule, permits that the rule now consid- so by Rule 35 of the Federal ute or determining eration of Procedure. Rules of Criminal In order to of a reduction. the extent 3582(c)(1)(B). 18 U.S.C. we turn to the argument, evaluate this depart below mandato- authority The history and Rule 35’s amend- legislative given not ry minimum sentences was 35(b)’s authorization history. ment Anti-Drug until the Abuse district courts of substantial-assistance-based 1986, further amended Rule Act of which Congress was enacted reductions of the 1984 35 before the effective date Act of 1984. Sentencing Reform part amended, the new Rule amendments. As amendment, was not to take The 35(b) provided: 1,1987, read: effect until November Changed for Cir- Correction Sentence Changed Sentence for Cir- Correction of court, on motion of cumstances. The court, on motion cumstances. Government, may year one Government, within may year within one sentence, lower sentence, imposition of a lower after the imposition after the permit specific would is a vided because 5. We note also that Rule 35 general that a sentence exception to the rule to resentence a defendant district court subsequently be modified. 18 U.S.C. substantively reasonable procedurally and 3582(c)(1)(B). Congress provided that a States, U.S. v. United term. Gall Cf. may modify a sentence "to district court (2007). L.Ed.2d 445 128 S.Ct. expressly permitted ... extent otherwise that Rule Again context indicates allowed a full- 35...." Id. If Rule 35 of a expressly define the "extent” 35 must resentencing, then it would have made scale than fashion in a more limited modification Congress to have limited little sense Grant surmises. *10 pro- "expressly” to "the extent” modification a sentence to reflect a plied defendant’s sub- at original sentencings and Rule 35(b) sequent, substantial assistance in the in- applied post-sentence to reduction vestigation prosecution of another They provided motions. each a limited person offense, who has committed an in defendant, circumstance which a by pro guidelines accordance with the poli- and viding assistance, substantial could obtain cy by statements issued Sentencing a reduction of his sentence a below manda pursuant Commission to section 994 of tory minimum. The critical language in 28, title United States Code. The each, from perspective, was that authority court’s to lower a sentence the reduction in the sentence was to be under this subdivision includes the au- given “to subsequent, reflect thority to lower such sentence to a level substantial assistance.” Fed.R.Crim.P. by below that established statute as a 35(b) (1987) added).6 (emphasis Because minimum sentence. both passed rules were and took effect 1986, contemporaneously, Anti-Drug permitted Abuse Act of both Pub.L. No. dis 99-570, 1009, trict § court to 100 Stat. 3207-8. sentence below a mandatory minimum, 3553(e), § same Act also created and both express constituted ex permits ceptions imposition flnality-of-sentence of an initial to the sen- rule in § tence a statutory 3582(c)(1)(B), below minimum upon the the two are often inter preted defendant’s substantial consistently, assistance and the along with their government’s motion. pro- The statute Guidelines counterpart, § U.S.S.G. 5K1.1.7 See, vides: e.g., Monus, United States v. 20 Fed. 511, (6th (e) Appx. Cir.2001) (“A 512 n. 1 authority impose Limited a sen- 3553(e) § motion under pre-sentence tence is the below minimum. 35(b) Government, equivalent motion.”); of a Upon motion of the Rule Unit Marks, 971, ed States v. authority shall have the 244 F.3d impose 973 n. 1 (8th Cir.2001) a sentence below a (collecting level established cases and stating, statute as a minimum “In analyzing application 35(b), sentence so as to of Rule rely reflect a upon defendant’s substantial we ... assis- cases decided under § investigation tance or prosecution 5K1.1 ... U.S.C. of another person 3553(e)....”); § who has Perez, committed an United States v. (10th Cir.1992) offense. Such sentence imposed 34, shall be 955 F.2d (applying in accordance with guidelines requirement file a policy statements issued the Sentenc- § motion under 5K1.1 before a court has ing Commission to section 994 jurisdiction to pursu consider reduction 28, of title United States Code. ant 35(b)); to motions under Rule United Doe, States 203 n. 7 Anti-Drug Abuse Act of Pub.L. No. Cir.1991) (“Rule 35(b) 3553(e) § (codified § must 99-570, 100 Stat. 3207-7 be read consistently with their 3553(e)). Sentencing at 18 U.S.C. 5K1.1.”). Guidelines counterpart, effect, At the they time went into 3553(e) and 18 U.S.C. rejected were essen- We have the notion that factors identical, 3553(e) tially except ap- not related to cooperation may be consid- 3553(e) language 6. The is identical save 7. permit Section 5K1.1 itself does not a re- “subsequent.'' for the word minimum, This reflects the duction below a al- timing differences between the rule and the though accompanied by it is often a motion statute; 3553(e) while rewarded a defen- 3553(e), under permit which does such a pre-sentencing cooperation, dant’s reduction. applied post-sentencing assistance. *11 814 3558(e) Procedure.9 motion. tee on Rules Practice and §a in connection with
ered
Bullard,
2002,
v.
the defendant
Rule 35
In
States
In
the committee modified
United
by
erred
not
that the district court
argued
general restyling
of the
part of
“as
family
regarding
facts
his
considering
easily
to
Rules make them more
Criminal
incarcera-
background and the effects of
style
and to make
and termi-
understood
(submitted
part
as
tion on his children
the rules.”
nology
throughout
consistent
memorandum)
deter-
when
his
35(b) Advisory
Fed.R.Crim.P.
Committee
below
mining
departure
the extent of the
Rules’s notes 2002 amend-
on Criminal
gov-
to the
minimum
also made
sub-
ments.
committee
3553(e).
390
motion
ernment’s
under
amendment
rule that ex-
stantive
to the
Cir.2004).
(6th
413,
re-
414-15
F.3d
We
during
the time
which a Rule
tended
jected
argument, finding
“[o]ur
requested.
could be
Id. The
reduction
ability for
case law confirms the limited
above,
rule, quoted
new version
departures,” which “must be
downward
to
sen-
allowed courts
reduce defendants’
assis-
solely upon the ‘substantial
based
they provide
should
substantial as-
tences
by
Id. at
tance’ rendered
the defendant.”
sistance,
specified
no
longer
but
Snelling, 961
(quoting
416
United States v.
reduction “reflect” that assistance. This
(6th Cir.1991))
93,
(quotation
97
F.2d
advisory
change
thought
was
omitted). Moreover, “only
marks
to be
and does not
committee
substantive
relating
cooperation
to a defendant’s
necessarily
way,
operate in a substantive
pursu-
departure
influence
extent of a
accordingly
change
and
we treat
3553(e).”
(quoting
ant
United
Id.
only. Id.
“stylistic”
Winston,
248,
v.
F.3d
1999 WL
States
198
(6th
1999) (un-
Poland,
20,
993925,
In
States
the First
at *3
United
v.
Cir. Oct.
decision))
published
(quotation
recognized
table
marks
the obvious tension be-
Circuit
omitted). This
consistent
conclusion is
tween the
deletion of the
amendment’s
have
the views
other circuits that
language
rule’s “to reflect”
and the adviso-
addressed
issue.8
ry
change
committee’s assertion that the
(1st
35,
stylistic.
purely
was
562 F.3d
39
3553(e)
unchanged
Section
has remained
Cir.2009). The
ex-
district court read the
enactment,
since its
while Rule
has
in an
language
cised
back into the rule
undergone various
under the au-
revisions
thority
Enabling
to avoid a
Act
attempt
Judicial Conference Commit-
Rules
54,
Ahlers,
Advisory
appropriate
8. See United States
305
62
drafted
Commit-
v.
F.3d
Williams,
(1st Cir.2002);
tee,
United States v.
551
subject
public
the amendment
notice
182,
(2d Cir.2009);
F.3d
186-87
United States
and comment. The
are considered
comments
Hood,
226,
(4th
2
Cir.
v.
556 F.3d
234 n.
incorporated,
approval
is needed
Desselle,
2009); United
815 2072(b), conflict, § and the see 28 U.S.C. C. affirmed, although on differ-
First Circuit
that,
argues
Grant also
even if Rule
parallels
The clear
in the
grounds.10
ent
35(b) does not address whether the court
35(b)
3553(e)
§
of Rule
led
histories
3553(a) factors,
§
may consider
Booker re
that “Congress
the court to believe
doubt- quires consideration of them when a court
intended” that “reductions for sub-
less
35(b)
resentences
to a Rule
mo
statutory
stantial assistance below the
Initially,
tion.
we note that
the Sixth
minimum—whether at initial
right
by
Amendment
to trial
jury,
topic
governed by
on sentence
Booker,
[be]
of concern in
has no application to
reduction —
35(b)
the same standards.”
Id. at 40. There-
a Rule
motion. The Booker discus
fore, the court reasoned that even if the
sion of a district court’s consideration of
3553(a)
in-
language
“to reflect”
had never been
factors occurs in the context of
35(b),
explanation
cluded in Rule
“the courts would still
the Court’s
sentencing pro
advisory
have
the two
cedures to be utilized in an
guide
considered
enactments in
materia,
regime.
line
post-Booker
As Booker and
para
being
there
no obvious rea-
clarified,
precedents have
procedural
why Congress
son
would want the reflects
requirements
and substantive
attendant to
apply
limitation
one context but not
original sentencings are not mandatory in
in the other.” Id. The district
prop-
Booker,
other contexts. See
543 U.S. at
erly
grant
greater
refused to
a reduction
258,
D.
practicalities
the
of the context.
account
Finally,
suggests
Grant
requires
case
of his
procedural posture
35(b)
faced with Rule
When
3553(a)
factors be considered
that the
motion,
initially
district court must
de
Rule
government’s
connection with
did in fact
cide whether
the defendant
35(b)
argument
The basis for this
motion.
If he did
render substantial assistance.
that,
he was
assertion
because
is Grant’s
not,
explicit
denied. The
the motion is
min
mandatory
to the
originally sentenced
rule
relief
“if’
language
permits
of the
sentence,
of consid
deprived
imum
he was
If,
assistance.
there has been substantial
3553(a)
at that
factors
eration of
however,
court
determines
Therefore,
consideration
posits,
time.
he
provide
defendant did
substantial assis
3553(a)
required
factors is
now
of the
rule, then
meaning
tance within the
of the
35(b)
motion
government’s
ample
court
gives
the rule
the district
of the
has removed the barrier
motion is
granting
The
of the
discretion.
minimum sentence.
any
discretionary, as is the extent of
re
problematic.
argument
This
given. The.government
rec
duction
sentencing hear
original
Grant’s
Whether
reduction, but
particular
ommend a
3553(a)
full consideration of
ing included
district court need not follow the recom
original sen
factors is immaterial to his
is free to
mendation. The district court
gave
him the
tence. The district
greater
any
or
reduction than
give lesser
And
possible legal
appli
lowest
sentence.
The
the sub
recommendation.
value of
3553(a)
constitutionally
cation of
is not
governing princi
stantial assistance is the
thus has no sta
required.
provision
The
discretion,
and the
ple in this exercise
given by
it
beyond
tus
that which is
statute
may not
reduction
exceed
value
in a
routine
given
or rule
context. Courts
assistance.
ly
according to man
sentence defendants
without refer
The role that we have outlined for dis-
datory mínimums and do so
a Rule
trict courts in the resolution of
ence to the
factors because the
35(b)
impose
motion does not
obli-
relevant statutes restrict
their discretion.
resentenc-
Penney,
gation
to conduct a new Booker
See United States v.
F.3d
(“[Section] 3553(a)
(6th Cir.2009)
have not modified the nature
ing,
fac
and we
35(b) hearing.
limitation of
congressionally man
of a Rule
Our
apply
tors do not
(citation
omitted).
sentences.”)
rulings to a determination of
dated
Thus,
of substantial assistance does not
our conclusion that Rule
does
the value
traditionally
broad discretion
require
or authorize consideration of
eliminate
valuing
effectively
that district courts exercise
forecloses
argument.
assistance.
Determining
Assigning
extent
case.
years
number of
or
would,
which a sentence should be reduced
in prison
months
to a
coopera-
course,
as a matter of
include consider
tion is not
task that can be carried out
ation of the defendant’s activities on behalf
certainty.
with mathematical
One district
much
and how
his assis
judge might decline to consider the contex-
helped
investigation
prose
tance
mention;
tual factors we
another might
cution of another. But the extent of the
deem them useful. The choice is that of
might
by other fac
tempered
reduction
be
Contrary
the district court.
to the fears of
affecting the
tors
valuation.
district
*14
the dissent about district court “confu-
judge might wish to consider the context
sion,”
judges
fully
district
are
capable of
surrounding
valuing
the initial sentence
weighing the contextual factors we men-
example,
the assistance. For
a district
tion, as appropriate,
ultimately
arriv-
might recognize
that a defendant’s
ing at a conclusion
any
as to the extent of
extremely high
is of
value
assistance
but
reduction.
recognize
fully valuing
coop
also
One unfortunate consequence of accept-
give
eration would
the defendant a sen
ing
arguments
Grant’s
would have been
tence much lower than co-defendants who
creating
unwarranted
dispari-
culpable. Giving
were far less
a lesser
defendants,
Grant,
ties between
like
whose
might
reduction under these circumstances
cooperation with the government
at
occurs
if
Similarly,
well be warranted.
the defen
in part
least
after sentencing and those
among
dant was
the least
in a
culpable
who, by happenstance, complete their co-
case,
extremely
multi-defendant
his
valu
operation
before
sentencing.
Under
able
could
fully
assistance
be
rewarded.
scenario,
Grant’s
defendants in his situa-
typical
Another
situation involves consider
tion would receive full consideration of
capacity
abiding
ation of defendant’s
3553(a)
§
factors
connection with a re-
A
prior
the law.
defendant whose
duction
mandatory minimum,
below a
activity
criminal
or not
non-existent
too
while those
sentenced
to a mo-
fully
serious could be
rewarded for his
3553(e)
tion under
would not. See Bul-
assistance,
valuable
while the valuable co
lard,
range, we affirm Grant’s sentence. WHITE, HELENE N. Circuit Judge, MERRITT, Judge, concurring. Circuit concurring and dissenting. insisting While that in re-sentencing for question is whether in allowing for substantial assistance a court need not re departure from mandatory minimum sen- consider all of the factors that tences for defendants whose substantial need to be at original considered sen recognized assistance is govern- tencing, opinion our Court’s the instant ment, Congress intended that the sentenc- case states that the sentencing judge may ing court be restricted to consideration of sentences, variety consider a wide in given, the assistance foreclosing con- cluding “consistency with sideration of other unrelated circum- factors, in order to make sure *16 stances or characteristics of the offense or unjust.” that the reduced sentence is not the defendant. goes say The Court on to that the district judge might wish to consider the “context” I that determined the initial in va assistance, luing the as taking well as into The majority concludes that consider- account “a of a consideration defendant’s permissible ation of other factors is capacity abiding by the law.” The evaluating whether the defendant should Court makes it clear that sentencing the receive the full sentence reduction that may weigh court “these sorts contextual would otherwise correspond to the assis- initially considerations after being consid tance. by As conceded the majority, Fed. by ered a district court in determining the R.Crim.P. in its current form signals value of cooperation any and the extent of no intent to restrict the court’s consider- 3553(e) reduction under and 5K1.1.” ation to the value or circumstances of the Nevertheless, I concur in the disposition court’s of this assistance. parallel provi- sion, gives 3553(e),1 case because it the district widely U.S.C. has been plan.” common scheme or U.S.S.G. authority impose Limited to a sentence be- (2004). § 3D1.3 Upon statutory motion low minimum. — Government, the court shall have mistakenly authority 12. The district court have impose be- the to a sentence below a disregard govern- lieved that it could not by level established statute as a minimum give ment’s recommendation and a lesser re- sentence so as to reflect a defendant’s sub- case, duction. If that is indeed the its error investigation stantial assistance in the or was prosecution harmless. It is obvious from the record person of another who has given that reduction would have been committed an offense. Such sentence smaller, accepted gov- had the court not imposed shall be in accordance with the ernment's recommendation. guidelines policy and statements issued Sentencing Commission to 3553(e) provides: 1. 18 U.S.C. section 994 of title United States Code. Nevertheless, I am not con- because to circumscribe interpreted one rule to Congress intended vinced allowing consideration of authority, court’s 3553(e) and a under apply to motions valuing to matters relevant only those to motions under apply rule to different iterations Additionally, prior assistance. 35(b), history given 35(b), provision, parallel like its of Rule 35(b) I to Rule cannot various amendments departure language authorizing included conclusion that agree the dissent’s subsequent, sub- “to reflect a defendant’s con- changed permissible amendments assistance.” stantial 35(b) mo- ruling on a Rule siderations be- authority to sentence Congressional tion, majority that agree I with the minimum in cases of low 3553(e) §of to interpretation consistent from 28 assistance comes substantial value of only consideration of the permit which states: U.S.C. assistance, consideration preclude (n) assure that shall Commission unrelated to the assis- of other factors general appro- reflect the guidelines tance, in this case. dictates our decision imposing a lower sentence priateness Bullard, See United States in- imposed, be than would otherwise (6th Cir.2004), therein. and cases cited lower than cluding a sentence is Thus, majority’s I concur with the conclu- mini- as a that established statute 35(b), resentencing sion that in under Rule sentence, to take into account a mum grant a reduc- simply the court’s task is in the substantial assistance tion reflect the defendant’s substantial of another investigation prosecution assistance. an who has committed offense. person join Judge Merritt’s regard, In this I However, nor the neither the Guidelines interpretation of the ma- and the dissent’s explicitly address sen- policy statements jority permit a consideration decision 35(b). tence reductions under factors, including range a broad by the history amply This discussed others, long as *17 I in majority nothing and dissent. find they determining relevant to what sen- are history that either answer to compels appropriately reflects the tence reduction major- question presented. Unlike the assistance. This defendant’s substantial 35(b)’s title, ity, guidance I find no in Rule in not be made a vacu- determination need (b)(3). title Regarding or in subsection um; to craft its own permitted the court is rule, case, in either the reduction is calculus, it intended to arrive long as And, given “for substantial assistance.” that reflects the at a sentence reduction (b)(3)’s authorization to consid- subsection assistance and is defendant’s substantial assistance, mentioning without prior er law. contraiy not otherwise 3553(a) factors, makes sense in the other taking into account as- prior context II considering in sistance is authorized majority’s legal Although I concur in the been substantial assis- whether there has conclusion, majority’s I dissent from 35(b), justifying application tance that conclusion to this case. application of determining appropriate in sen- resentencing on the I would remand for light reduction. It does not shed on tence argu- the additional basis that some of presented. the issue argu- to advance were sought ments Grant Thus, analysis, in I up point determining to this in the value ably relevant appropriate in- sen- compelling argument see no for either his assistance and 35(b). reduction. of Rule tence terpretation argues gov- twenty-five years prison. Grant that the in appeal, On U.S.C. 924(c). position ernment’s 848 and 18 U.S.C. This mo- the fact that its own motion tion for reduction has been solely overlooks made and motion for departure for downward to U.S.S.G. 5K1.1 and not a Rule sentence reduction both 3553(e). Thus, under 18 U.S.C. original guideline sentencing used the twenty-five year mandatory sentence (as range probation calculated applies. statute still officer) “starting point” as the for rec- ommending a sentence reduction of 50% Conclusion end of that range. of the bottom Its In opinion counsel position original current that “the sen- investigating agents, and the Kevin tencing range should not be a consider- date, cooperation, Grant’s warrants a position ation” is inconsistent with the it year seven reduction in sentence at this advocated in the district court. advisory time. Under the sentencing Reply Final at 7. Br. Citations to [Def.’s case, guideline range in his applicable omitted, in emphasis original.] record Be- year seven reduction would require a minimum cause the three offense-level reduction to an of- “starting point” rendered the irrelevant fense history level criminal category sentencing proceeding ap- the initial (235V to 293 in prison). months peal, argues, “starting point” Grant part must be considered as of the Rule Based upon the defendant’s coopera 35(b) proceeding. panel opinion ac- date, tion to the United States recom knowledged argument.2 this years mends a prison argument at this regard this finds time. We believe such a sen government’s in the record. The support tence takes into account all of the rele initial memorandum explained: vant sentencing factors outline in 18 statute, 3553(a),[3] By U.S.C. as well cooper defendant faces a man- as his datory minimum sentence of at least ation to date. panel majority opinion government’s
2.
Footnote
3. The
reference to and reliance
states:
on the 18 U.S.C.
factors is consis
limited,
argues
prosecution
Grant
my
also
experience,
tent with
albeit
on the
sought
the District Court
to reduce his sen-
significant
court.
In a
number of cases in
equal
tence to a number
to half of his
volving sentencing proceedings in the context
*18
original
range,
Guidelines
but that
in
errors
3553(e) motions,
gov
the court and the
sentencing
the initial
calculation resulted in
ernment make reference to and consider 18
higher “starting point,"
high-
a
and hence a
3553(a)
Logically,
U.S.C.
factors.
under
post-reduction
er
sentence than what he
Bullard,
(6th
United States v.
reduced sentence Judges. In the counsel opinion apparent attempt In an to craft a tacit investigating agents, and the Kevin majority compromise, the en banc and con- date, cooperation, warrants a curring opinions away shift their focus in reduction sentence from 25 to 16 from Petitioner and instead create an un- years prison. in This would be 50% manageable legal standard. Because the original advisory reduction from the erroneously district court that it concluded guideline range applicable to the facts may not consider the factors enumerated underlying his conviction. We believe 18 U.S.C. on such sentence takes into account all of motion, this should vacate the dis- Court the relevant factors outlined 3553(a), trict court’s decision and remand for re- 18 U.S.C. as well as the cooperation.[4] deciding consideration.1 Without whether required the district court was to consider was, fact, It is not clear whether there 3553(a), clear, panel majority it is as the understanding an ulti- Grant would found, prohibit- that a district court is not mately receive a equal to one-half ed from In that it doing finding so. was applicable of the otherwise min- Guidelines so, prohibited doing from the district court And, clearly, imum. if there had been I legal committed error. therefore re- understanding, such an it would not have Nevertheless, binding spectfully been on the court. dissent. *19 original panel majority scope
4. The observed the district court fall within the this of dissent, 3553(a). inconsistency government’s position. purposes § in the For of that this Grant, United States v. assumption 781 is not disturbed. But to the ex- Cir.2009). arguments tent fall outside the Petitioner's court, 3553(a), scope in the district its discretion, court, appro- parties, must consider whether it is 1. The district and the ma- assume, jority perhaps erroneously, priate apply that each to those additional factors as well by of the factors advanced Petitioner before for reasons stated herein. 3553(a)-based matter, apparent fusing it is to consider Grant’s preliminary As a by major- arguments.”)), majority the standard announced or whether that In unnecessary confusion.2 ity will lead would hold that the district court lacked (see panel the now vacated ma- her dissent to to do in discretion so event id. at decision, (“[We] that jority Judge opined Gibbons conclude that per- assistance” should be the “substantial mits reductions based on substantial assis- guiding departure factors.”).) factor below a manda- tance rather than other 35(b). tory minimum under Rule See majority point by misses the focusing on Grant, United States F.3d argument Petitioner’s that the district (6th Cir.2009) (Gibbons, J., dissenting). court was required to consider Yet, own, departure in a Judge her factors. This dissent not does majority opinion Gibbons’ en bane would embrace in argument Petitioner’s that re- myri- authorize district courts to consider gard, but rather contends that the district regard long in this as the ad factors court had the discretion to consider addi- —so that acknowledge courts do not the factors case, In tional factors. this the district 3553(a). from emanate court in concluding erred that it did not have discretion to do so. by District courts are instructed the ma- hand, the one that jority opinion, on clarity The lack of in the majority’s require not or authorize con- “does opinion perhaps exemplified by best 3553(a) factors,” yet, on sideration of the majority’s apparent misapplication of its other, may that district courts “take into own standard. precise Whatever the na- practicalities account the context” majority’s ture of the holding, majority valuing the defendant’s substantial assis- minimum at a makes clear that a district (See 816.) Maj. Many Op. tance. at discretion, may, in its consider addi- majority discussed —includ- tional factors to value defendant’s sub- ing the nature of the offense and the de- (See IV.) Maj. stantial assistance. Op. capacity fendant’s to abide the law—are case, In this the district court not “[would] not dissimilar from the factors enumerated about, arguments listen to” Petitioner’s 3553(a). §in District courts will have to instance, history his criminal and the cir- struggle to sort out the internal inconsis- conviction, underlying cumstances of his majority ambiguities tencies and reasoning that these issues are “not [en- may this be opinion, required Court at the time of a Rule 35 mo- tertained] again revisit the issue the near future. (Tr. 6-7.) Curiously, majori- at tion.” majority opinion ty
The difficulties with the finds no error in the district court’s compounded by ambiguous ruling, are though majority nature even holds that holding. of its It is unclear whether the a district court “consider the context majority surrounding valuing would hold the district court the initial sentence in (See 817.) properly Maj. Op. exercised its discretion the assistance.” at (see 3553(a) Maj. at considering Op. plainly 819 The district court failed to consider (“The so, properly district court acted in re- whether it would do instead commit- majority majority’s opinion, given 2. The focuses on the word "confu- because the its inter- argument. ambiguities, sion” to misstate the dissent’s nal inconsistencies and fails to view, Contrary majority’s adequately to the no fair read- instruct district courts on the suggests ing judges proper apply. standard to The dissent does of this dissent district ability judges apply "capable weighing the not doubt the of district are not contextual *20 by majority. (Maj. proper legal majority Op. the the standard had the factors” discussed Rather, 817.) likely apply. announced a standard at confusion is to arise clear assistance,” and if by concluding provided that it could “substantial ting legal error so, not do so. extent the defendant’s sentence what 35(b) Rule is silent should be reduced. Discretion on Re- A. District Court’s may court regarding the factors a district 35(b) sentencing Rule Under reducing in Fed. consider a sentence. See majority’s disposition of The erroneous Park, 35(b); R.Crim.P. States v. United in grounded misinterpreta- is a this case (S.D.N.Y.2008). F.Supp.2d 476-77 35(b). language of plain tion of Rule (providing U.S.S.G. 5K1.1 factors to Cf. a district court Rule does not restrict the in guide reducing guideline range courts exercising its discretion to consider from prior for substantial assistance to sentenc determining proper factors in a various ing). 35(b). under Rule reduction Prior to the 2002 amendments to the may the That a district court consider 35(b) Rules, provided former Rule specifically, supported factors may reduce a sentence “to reflect and, by recent amendments to the Rules subsequent, substantial assis perhaps, express language 35(b)(2) (2001) tance.” Fed.R.Crim.P. 3553(a). supported by It is also added). (emphasis Many courts have re congressional purpose providing for the phrase lied on the “to reflect” to hold that sentence, imposition just par- of a which is factors other than substantial assistance ticularly compelling in a case such as this 35(b) may not be on a Rule considered initially where Petitioner was sentenced to See, e.g., motion. United States Chavar minimum that divested the ria-Herrara, Cir. authority district court of to consider the 1994) (“The 35(b) plain language of Rule the first instance. indicates reduction shall reflect 35(b), Turning to the text of Rule it defendant; the assistance of the it does provides pertinent part, as follows: may not mention other factor that be (1) Upon govern- In General. considered.”). The 2002 amendments to year ment’s motion made within one Rules, however, phras removed this sentencing, may the court reduce a sen- ing, leaving provide Rule for a sen defendant, if sentencing, tence after tencing reduction the defendant’s sub “if provided substantial assistance inves- stantial assistance” was of certain kind. tigating prosecuting person. another 35(b)(2) See (emphasis Fed.R.Crim.P. add (2) Later Upon govern- Motion. ed). year ment’s motion made more than one change plain language This in the sentencing, may after the court reduce significant. if Rule is Whereas the word “re- the defendant’s substantial suggests assistance involved information flect” taking [certain latter into ac- former, became known or useful after one count the the word “if’ denotes 35(b)(2) year as detailed ]. merely precedent.3 a condition Under (2). language, pro- current once a defendant 35(b)(1), Fed.R.Crim.P. Under vides Rule, certain substantial assistance —and plain language of the a district .court thus presented precedent with a Rule motion first satisfies the condition —the must consider whether the defendant has district court reduce the defendant’s (See not, majority disagree. Maj. 3. The does not stantial he did assistance. If motion ("When [Rjule Op. language at explicit 816-17 faced with a is denied. The motion, initially permits the district court must decide relief 'if there has been substan- assistance.”).) whether the defendant did in fact render sub- tial *21 (A) defendant, sentencing, pro- limit a the after Nowhere does the Rule sentence. in investi- to consider addi- vided substantial assistance district court’s discretion factors, prosecuting person; nor does the Rule another pertinent gating tional sentence must that the reduced provide by the be otherwise limited
“reflect” or (B) reducing the sentence accords with defendant’s substantial assis- value of the Sentencing guidelines the Commission’s certainly be an tance-though this would policy statements. See, e.g., States
important factor.
United
(B) (2006) (em-
35(b)(1)(A),
Fed.R.Crim.P.
Garcia,
948,
Fed.Appx.
949-51
v.
added).
Advisory
The
phasis
Committee
.2007).
Cir
(B)
eliminated subsection
to conform the
out,
Booker,
Advisory
majority points
As the
the
Rule to
United States
U.S.
(2005).
(“Advisory 220,
738,
Rules
Committee on Criminal
125 S.Ct.
Upon sentence, mandatory after available minimum year sentencing, within one years. reduce a sentence if: of 25 Since statute divested the majority baffling 4. The makes the assertion off value of the 2007 Amendments to Rule significance that the dissent "inflates” advisory on the basis the same com- following the amendments to the Rules Book- language accompanies mittee also amend- 2.) (Maj. Op. majority er. at 810 n. Yet the Although seemingly to Rule ments 32. this analyze persuasive does not endeavor to repetitious commentary may that these show Amendments, value of the 2007 and the ma- unique notes are not to Rule the notes jority thereby reli- inflates dissent’s itself accompany sug- nonetheless do Rule 35 and ance the 2007 Amendments. Not on gest anticipated the drafters consider- significance of the 2007 Amendments col- ation of numerous factors on a Rule preferred disposition lateral to dissent’s motion. case, majority completely writes this but *22 826 Cir.2003) context, any authority (holding, to consider a another
district court of years, than 25 the district a “district court’s reduction [defen- sentence less 35(b) the Rule is a dant’s] court did not—and could not—look to sentence under ‘sen- ”). 3553(a) § factors. tence.’ 35(b) pierced Although has the we have held that district Now that Rule minimum, mandatory there is no reason courts consider the extent of a deprived cooperation pre-sentence should be on a why Petitioner departure motion for a downward under district court’s consideration the 3553(a) 3553(e), § guide § factors to its discretion 18 U.S.C. see United States v. (6th Bullard, 390 F.3d 416-17 appropriate and arrive at an sentence.5 Cir. 35(b) 2004), grounded this limitation is in fac posture Rule re-sentenc- Sentencing was ini- tors enumerated in the Guide ing this case—where Petitioner lines, 5K1.1, § mini- tially upon sentenced to a U.S.S.G. which Bul materially part. different from lard relies in No such factors are mum—is not 35(b). sentencings. present respect initial The district to Rule Fur most thermore, court in both instances would have discre- Bullard and the cases it cites sentences, authority tion over the and neither defen- were decided at a time when 3553(a) § yet Sentencing have had the Guidelines were mandato dant would 3553(e) case, and, ry, applied. notably, requires factors In this the mandato- ry precluded minimum sentence the dis- reduced sentence “to reflect” the defen 3553(a) assistance, considering phrasing trict court from dant’s substantial 35(b). sentencing, at initial that was excised Rule factors Petitioner’s from but no consideration of fairness consis- Contrary position to the taken tency supports precluding application their majority, the district court had the discre- now that the district court’s discretion has 3553(a) tion to consider the factors in 35(b). through been restored Rule 35(b) Cf. the context of a Rule motion. Lee, Fed.Appx. United States v. required the district court was Whether (6th Cir.2008) (“A district court’s fail- do a question day. so is for another Be- 3553(a) ure to consider factors would categorically cause the district court re- procedurally in a result unreasonable sen- timely argu- fused to consider Petitioner’s determination, tencing potentially requir- 35(b) ease, ments on the Rule motion in his ing the Circuit to vacate and remand for this Court should vacate the decision resentencing.”). district court and remand for reconsidera- fact, majori- In although ignored tion.
ty, application of the Argu- B. Timeliness of Petitioner’s might statutory right well constitute a of a ments 35(b) defendant in connection awith Rule case, re-sentencing. following government’s Section states that In this sentencing motion, court “shall” certain consider Petitioner filed the fol- statutory factors. To the lowing support arguments extent reasons in of his 35(b) sentencing larger reduction constitutes a for a reduction than “(1) meaning “sentence” within requested: provided of had he had more 3553(a), a court required would be substantial assistance than had been con- 3553(a). See, (2) deal; consider e.g., templated by plea United the initial his Moran, States firearm conviction could have been two- cryptic language, majority (Maj. Op. 5. In ample somewhat trict court discretion.” at 816.) acknowledges "gives that Rule the dis- enhancement, argue your than want to has rather assistance point what five-year everyone manda- been over and above de- charge with a separate *23 (3) outset, sentence; being fined as substantial at the scope and tory minimum that, you argue then can and that’s continuing criminal enter- breadth of his I’m argument, relevant and more than extensive than most such prise was less willing to listen to that.... But with (4) history cate- his criminal enterprises; regard any guideline argument to or actual criminal overrepresented his gory of the other (5) brought up issues were history; money laundering his convic- memorandum, in the I will not listen to. tion should have been subsumed within his conviction; continuing enterprise criminal (Id. 10-11.) at (6) of his the mother of two children transcript proceedings As the of the be- died, recently depriving them of a had clear, fore the district court makes parent natural while he is incarcerated.” summarily court dismissed five of Petition- Grant, F.3d at 776. arguments untimely. er’s six as This was error, inasmuch as the district court had government’s on the hearing At the 35(b) motion, the discretion to hear the balance of Peti- rejected all the district court arguments. tioner’s Since district argument: but Petitioner’s first erroneously found that it could not— today to talk in The Court is not here rather than would not—consider these ar- resentencing bringing up terms of guments, the decision should be vacated in- two-point enhancement issues and the case remanded to the district court five-year charge. of a consecutive stead See, for reconsideration. e.g., United today is not here to deter- The Court v. Chapman, States of the ... scope mine the and breadth Cir.2008) (upholding district court’s consid- enterprise that was continuing criminal prior eration of criminal histories and the many as enter- [such not extensive seriousness of offenses in the context of a and, therefore, a prises] lesser sentence 35(b) motion). is warranted. The Court is not here talk about or listen to whether the de- C. Conclusion history fendant’s criminal was overre- proper disposition The of this case would money laun- presented or whether vacating consist of this the decision Court within dering count should be subsumed remanding court and district [continuing enterprise] criminal remand, case for reconsideration. On family at background, the defendant’s district court should be instructed to con- is, say all.... All Pm I am not going to discretion, sider, appro- in its whether it is going any arguments, to listen to now or 3553(a) factors, priate apply ever, regard to sentences that have arguments to the extent Petitioner’s do upon and which have been agreed been (see supra fit within that section imposed. 1), appropriate note whether it is to con- (Tr. 6-7.) responded at arguments sider Petitioner’s additional right that Petitioner had maintained his reduction as well. greater for a reduction. The dis- argue above, I respect- For the reasons stated trict court then stated as follows: fully dissent. you’re referring to are The issues issues and Section is- guideline entertains at the
sues that the Court sentencing, initially,
time of not at the Now, if you
time of a Rule 35 motion.
notes
the 2007 amendments
Federal
about
(b)(1)(B)
tory,
similarly
was
subsection
delet-
32. The Commit-
Rule Criminal Procedure
Booker,
guidelines
merely describing
sug-
ed "because it
tee was
not
treat[ed]
35(b).
35(b),
gesting
change
mandatory.”
Advisory
Fed.R.Crim.P.
an unstated
(2)
text,
Upon
govern-
reading
Later Motion.
on
we cannot con-
year
than
ment’s motion made more
one
clude that
consideration of the
sentencing,
after
reduce
prohibited, permitted,
factors is
or re-
if
sentence
the defendant’s substantial
quired.
assistance involved:
can, however, glean
We
some guidance
(A) information not known to the de-
rule,
from the context of the
including its
year
fendant until one
or more after
35(b),
title. The title of Rule
“Reducing a
sentencing;
Assistance,”
Sentence for Substantial
un-
(B)
provided by
information
the de-
dermines
position
in that it
government
speci-
fendant to the
within one
year
sentencing,
but which did not
fies that the defendant’s substantial assis-
government
become useful to the
until
tance forms the impetus for the court’s
year
than
sentencing;
more
one
after
ability to
already-final
reduce an
sentence.
Although the title of a rule or statute is
(C) information the usefulness of not as critical to
analysis
our
as the text
reasonably
which could not
have been itself,
Supreme
previously
Court
has
anticipated by the defendant until
looked to titles to
analysis.
aid its
For
year
more than one
after
example, in Begay
States,
v. United
promptly provided
and which was
to Court was faced with the question of
after its usefulness
driving
whether
under the
quali-
influence
reasonably
was
apparent to the defen-
felony”
fied as a “violent
under the Armed
dant.
(“ACCA”).
Career Criminal Act
553 U.S.
35(b)(2).
Fed.R.Crim.P.
137, 139,
128 S.Ct.