UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7847
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL EUGENE FARMER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:02-cr-00131-BO-1)
Argued: March 25, 2010 Decided: June 10, 2010
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Chief Judge Traxler joined. Judge Gregory
wrote a dissenting opinion.
ARGUED: Robert John McAfee, MCAFEE LAW, PA, New Bern, North
Carolina, for Appellant. Anne Margaret Hayes, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Michael Farmer appeals the district court’s order granting
the Government’s motion to withdraw its motion under Rule 35 of
the Federal Rules of Criminal Procedure. We affirm.
I.
Farmer pled guilty to conspiracy to distribute and possess
with intent to distribute at least fifty grams of crack cocaine,
in violation of 21 U.S.C. § 846. Pursuant to Farmer’s plea
agreement, the Government agreed to “make known to the Court at
sentencing the full extent of [his] cooperation, but the
Government is not promising to move for departure pursuant to
U.S.S.G. §5K1.1, 18 U.S.C. §3553(e) or Fed. R. Crim. P. 35.”
J.A. 15. Farmer was thereafter sentenced to 262 months
imprisonment.
The Government filed a Rule 35 motion within one year of
Farmer’s sentencing and requested the motion be held in abeyance
until after he had completed his assistance. 1 More than four
years later, Farmer filed a motion requesting a hearing on the
Government’s Rule 35 motion. The Government filed a response to
1
Federal Rule of Criminal Procedure 35(b)(1) provides:
“[u]pon the [G]overnment’s motion made within one year of
sentencing, the court may reduce a sentence if the defendant,
after sentencing, provided substantial assistance in
investigating or prosecuting another person.”
2
the motion, in which it informed the district court that Farmer
had completed his assistance and the Rule 35 motion was ripe for
disposition. However, two months later, and prior to the
district court ruling on the motion, the Government moved to
withdraw its Rule 35 motion. In its motion, the Government
stated that Farmer had been disciplined by prison authorities
for possessing marijuana. At a hearing on the motion, the
district court granted the Government’s motion to withdraw.
Farmer timely appealed.
II.
The United States Supreme Court has held that a district
court may grant a downward departure in the absence of the
Government’s Rule 35 motion if: (1) the government has obligated
itself in the plea agreement to move for a departure; or (2) the
government’s refusal to move for a departure was based on an
unconstitutional motive, such as race or religion. See United
States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994) (citing Wade
v. United States, 504 U.S. 181 (1992)). Here, Farmer does not
argue that the Government breached the plea agreement or that
the Government’s decision to withdraw its motion was based on an
unconstitutional motive. Instead, Farmer argues that the
district court erred by permitting the Government to withdraw
its Rule 35 motion where the Government had represented that he
3
had completed his assistance, and the district court abused its
discretion in not holding an evidentiary hearing on his motion. 2
We find that Farmer’s arguments are foreclosed by United States
v. Hartwell, 448 F.3d 707 (4th Cir. 2006).
In Hartwell, the defendant pled guilty and agreed to
cooperate with the Government for a further reduction of his
sentence. In exchange for his cooperation, the Government, in
the plea agreement, stated:
that [the Government] reserved “its option to seek any
departure from the applicable sentencing guidelines,
pursuant to Section 5K of the Sentencing Guidelines
and Policy Statements, or Rule 35(b) of the Federal
Rules of Criminal Procedure, if in its sole
discretion, the United States determines that such
departure is appropriate.”
Id. at 710 (emphasis added). Within one year of the defendant’s
conviction, the Government filed a Rule 35(b) motion but asked
that it be held in abeyance pending the defendant’s continued
cooperation. A year-and-a-half later, the Government filed a
memorandum recommending that the defendant’s sentence be reduced
from life imprisonment to 38 years imprisonment based on his
cooperation. A few months later, the defendant filed a motion
2
Whether the Government has the discretion to withdraw its
Rule 35 motion is a question of law which we review de novo.
Hunton & Williams v. U.S. Dept. of Justice, 590 F.3d 272, 284
(4th Cir. 2010). We review Farmer’s claim that the district
court should have held an evidentiary hearing for an abuse of
discretion. See United States v. Pridgen, 64 F.3d 147, 150 (4th
Cir. 1995).
4
and affidavit seeking an evidentiary hearing on the Government’s
Rule 35(b) motion, alleging that the Government had breached the
plea agreement and stating that the Government had promised to
reduce his life sentence to 18 years. As a result of the
defendant’s motion (and alleged false statements), the
Government moved to withdraw its Rule 35(b) motion. The
defendant promptly moved to strike his own affidavit, admitting
it contained false statements. Thereafter, without an
evidentiary hearing, the district court permitted the Government
to withdraw its Rule 35 motion.
On appeal, we held that the plea agreement language in
Hartwell – i.e., “in its sole discretion” – gave the Government
the discretion of whether to pursue a Rule 35 motion and also
included the discretion to withdraw it. Id. at 718. We further
held that the Government’s language in its memorandum supporting
its Rule 35(b) motion, representing that Hartwell had provided
assistance and his sentence should be reduced, did not alter the
Government’s discretion. See Id. at 719. Finally, we held that
because the Government had the discretion to withdraw its
motion, “the district court did not abuse its discretion in
denying Hartwell an evidentiary hearing.” Id. at 720.
We find Farmer’s appeal wholly analogous to Hartwell.
Here, the Government did not obligate itself to file a Rule 35
motion in the plea agreement and, indeed, expressly retained its
5
discretion to pursue (or not) a Rule 35 motion. See J.A. 15.
(specifying that “the Government is not promising to move for
departure pursuant to U.S.S.G. §5K1.1, 18 U.S.C. §3553(e) or
Fed. R. Crim. P. 35”) (emphasis added). This discretion to
file a Rule 35(b) motion, therefore, likewise gave the
Government the discretion to withdraw such a motion. See
Hartwell, 448 F.3d at 718. Further, like Hartwell, the
Government represented that Farmer had provided assistance and
that the Rule 35(b) motion was ripe for disposition. However,
as we held in Hartwell, such a representation does not affect
the Government’s discretion to withdraw its motion prior to the
district court ruling on the motion.
Finally, because we hold that the Government retained its
discretion to withdraw its Rule 35 motion, we do not believe the
district court abused its discretion in not holding an
evidentiary hearing in this case. Accordingly, the district
court did not err in allowing the Government to withdraw its
Rule 35 motion. 3
3
We disagree with the dissent’s characterization of our
holding. The dissent argues that under our holding, the
“[G]overnment retained absolute and unfettered discretion to
withdraw its Rule 35(b) motion,” and the Government’s discretion
“has no bounds.” This assertion ignores the specific
limitations we recognized from the outset – namely, that the
Government could not withdraw a Rule 35 motion if (1) it bound
itself in the plea agreement, or (2) its withdrawal is based on
an unconstitutional motive. See Wallace, 22 F.3d at 87.
(Continued)
6
III.
For the foregoing reasons, we affirm the decision of the
district court.
AFFIRMED
Further, we disagree with the dissent’s analysis that the
Government’s post-plea representation that it would present a
specific account of Farmer’s cooperation modifies the original
plea agreement. We find no support in law to support this
contention and do not believe that the Government’s
representations here divest it of the discretion it has under
Hartwell to withdraw the Rule 35(b) motion. In short, the
dissent’s analysis is misplaced in light of the facts and
controlling law. At bottom, the Government did not promise to
make a Rule 35 motion, and it had the discretion to withdraw any
such motion that it did make so long as there was no
unconstitutional motive in doing so.
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GREGORY, Circuit Judge, dissenting:
The majority finds that the government retained absolute
and unfettered discretion to withdraw its Rule 35(b) motion.
Under its approach, such discretion has no bounds. However, the
government in this case relinquished its initial discretion
when, after it filed a Rule 35(b) motion, it represented to the
court that Farmer completed his assistance and therefore the
government would detail such assistance at the Rule 35(b)
hearing. In other words, the government’s representations
ripened its initial discretionary motion into an irrevocable
act. Because I believe the issue of whether Farmer’s sentence
should be reduced was reserved solely for the district court
from that point forward, I respectfully dissent.
Although the government had no legal obligation under the
initial plea agreement to file a Rule 35(b) motion, it did in
fact file a Rule 35(b) “placeholder motion” on January 23, 2004,
requesting that “a ruling . . . be held in abeyance, until
[Farmer] has completed his assistance.” J.A. 25 (emphasis
added). While the motion makes no reference to retaining any
discretion to withdraw the motion, we may infer that the
government retained discretion in the event that Farmer did not
complete his assistance to its satisfaction. See, e.g., United
States v. Hartwell, 448 F.3d 707, 719 (4th Cir. 2006) (emphasis
added) (finding that the government had discretion to withdraw
8
the Rule 35 motion and “that this discretion included the right
to withdraw that motion for Hartwell’s failure to cooperate”).
What the motion makes clear is that the bargained-for exchange
was Farmer’s continued cooperation for the government’s
subsequent support for a Rule 35(b) motion ruling.
More than four years later, the government filed a response
to Farmer’s request for Rule 35(b) hearing. It is this response
that represents the termination of the government’s discretion
concerning whether to pursue a Rule 35(b) motion. The
government’s response on June 12, 2008, stated that Farmer had
“completed his assistance” and that at the requested hearing,
“the Government will present a specific account of the
defendant’s cooperation.” J.A. 29-30 (emphasis added). 1 From
that point forward, the government was obligated to set out
Farmer’s cooperation.
Whether a sentencing reduction is ultimately warranted
based on Farmer’s cooperation is an issue to be determined
exclusively by the district court. See United States v. Stumpf,
476 F.2d 945, 946 (4th Cir. 1973) (per curiam) (noting that a
Rule 35(b) motion is “addressed to the sound discretion of the
district court”). Rule 35 provides that “[u]pon the
1
This latter promise is left out of the majority’s
description of the government’s June 12, 2008, response.
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government’s motion made within one year of sentencing, the
court may reduce a sentence if the defendant after sentencing,
provided substantial assistance in investigating or prosecuting
another person.” Fed. R. Crim. Pro. 35(b)(1) (emphasis added).
The government not only filed a placeholder motion within the
one-year time period, it later submitted that the matter was
ripe for disposition. Promising to detail Farmer’s cooperation
at the hearing and informing the court that Farmer’s assistance
was complete brought at end to the government’s ability to
withdraw its Rule 35(b) motion.
By crying “discretion,” the government cannot be allowed to
thwart an essential function of the court, consideration of
filed motions. Under the majority’s approach, after the
assistance is complete and the government has requested a
ruling, at the very hearing it requested, the government could
withdraw a Rule 35(b) motion just as the court is considering
the merits and is minutes away from issuing its ruling from the
bench. There must be a boundary to the government’s ability to
renege on an unconditional Rule 35(b) motion filed with the
court. I find that such line has been crossed in this case.
The government, of course, would be free at the hearing to
present any evidence relevant to sentencing. However, the fact
that Farmer was disciplined by prison authorities for possessing
10
marijuana 2 does not forfeit the already-filed Rule 35(b) motion
given the government’s representations to the court and the
court’s inherent power to hear motions. The ultimate decision
is still the court’s, not the government’s.
Furthermore, it is the government’s relinquishment of
discretion in its June 12, 2008, response that distinguishes
this case from our decision in United States v. Hartwell, 448
F.3d 707, a case the majority, in error, asserts controls the
outcome. In Hartwell, the Rule 35(b) placeholder motion
specifically reserved the government’s discretion to withdraw
“if the defendant fails to fulfill his responsibilities.” 448
F.3d at 711. In the government’s subsequent memorandum
supporting its Rule 35(b) motion, “[in] addition to detailing
the nature and value of Hartwell’s cooperation, the government
also outlined problems with his cooperation.” Id. By providing
both details of the value of Hartwell’s cooperation and the
problems associated with it, the government made apparent that
its ultimate support for a Rule 35(b) ruling was not yet
determined. The government then added a footnote to the
memorandum specifically retaining discretion to withdraw the
2
This happened before the government submitted to the court
that Farmer completed his assistance. Indeed, Farmer was
subject to a discipline hearing on March 16, 2006, more than two
years before the government filed a motion with the court
stating that the matter was ripe for disposition.
11
motion based on its determination that substantial assistance
had not been provided:
The Government considers defendant’s anticipated
truthful testimony against [B.N.] as the principal
basis for the filing of this motion. If, for any
reason, defendant fails to provide truthful testimony
during the [B.N.] prosecution, the Government will
take the position that defendant has engaged in a
material breach of his plea agreement and his
commitment to provide substantial assistance to the
Government.
Id. (alteration in the original) (emphasis added). Thus, the
government made clear that the assistance constituting the basis
for the motion was not yet complete, and therefore, we found
that “in the government’s March 10, 2003 memorandum in support
of its Rule 35(b) motion, . . . there is no language to suggest
a relinquishment of the government’s discretion.” Id. at 719.
In the case before us, the government’s response on June
12, 2008, contains language abandoning discretion. As opposed
to the government’s memorandum in Hartwell making clear that
Hartwell’s future assistance was critical to the government’s
support of its Rule 35(b) motion, here, the government stated
that Farmer had “completed his assistance.” Furthermore, unlike
the memorandum in Hartwell, the response here indicates no
problems with Farmer’s assistance. Indeed, to this day, the
government points to no flaws in the substantial assistance
Farmer provided. And while the government explicitly retained
discretion in its Hartwell memorandum, in Farmer’s case, the
12
government did just the opposite by promising that at the
requested hearing, “the Government will present a specific
account of the defendant’s cooperation.” Whereas the memorandum
in Hartwell made clear that the government had not yet ceded its
discretion, today we have before us a case where the government
stated that the Rule 35(b) motion was “ripe for disposition.”
See J.A. 29. Therefore, not only is Hartwell inapposite, but it
supports Farmer’s position that the government no longer had
discretion to withdraw.
Based on the foregoing analysis, I find that the district
court erred as a matter of law when it permitted the government
to withdraw its Rule 35(b) motion. The court erred in not
considering whether Farmer’s sentence should be reduced based on
the substantial assistance that he provided. Accordingly, I
would reverse the decision of the district court and remand with
instructions that the court consider the government’s Rule 35(b)
motion.
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