RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0009p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff–Appellee, -
UNITED STATES OF AMERICA,
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No. 07-3831
v.
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Defendant–Appellant. -
KEVIN GRANT,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 04-00161—Gregory L. Frost, District Judge.
Argued: March 3, 2010
Decided and Filed: January 11, 2011
Before: BATCHELDER, Chief Judge; KEITH, MERRITT, MARTIN, BOGGS,
MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK,
McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.
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COUNSEL
ARGUED: Dennis Belli, Columbus, Ohio, for Appellant. Benjamin C. Glassman,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
ON BRIEF: Dennis Belli, Columbus, Ohio, for Appellant. Benjamin C. Glassman,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, Robyn Jones Hahnert,
Kevin Winters Kelley, ASSISTANT UNITED STATES ATTORNEYS, Columbus,
Ohio, for Appellee.
GIBBONS, J., delivered the opinion of the court, in which BATCHELDER, C.J.,
MARTIN, BOGGS, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
and KETHLEDGE, JJ., joined. MERRITT, J. (p. 23), delivered a separate concurrence.
WHITE, J. (pp. 24–28), delivered a separate opinion concurring in part and dissenting
in part. CLAY, J. (pp. 29–37), delivered a separate dissenting opinion, in which KEITH,
MOORE, and COLE, JJ., joined.
1
No. 07-3831 United States v. Grant Page 2
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant Kevin Grant
pled guilty to possession of a firearm, conspiracy to commit money laundering, and
operation of a continuing criminal enterprise. The district court sentenced Grant to
twenty-five years in prison, the mandatory minimum sentence for those charges. After
Grant’s sentence was affirmed by a panel of this court, the government filed a motion
pursuant to Federal Rule of Criminal Procedure 35(b) to reduce his sentence based on
his substantial assistance in the prosecution of others. The district court granted the
motion and reduced Grant’s sentence to sixteen years. Grant now appeals. He claims
first that the district court erred by not considering the 18 U.S.C. § 3553(a) factors when
deciding the Rule 35(b) motion. Second, Grant claims that the district court erred in its
calculation under the United States Sentencing Guidelines during his original sentencing.
For the following reasons, we affirm.
I.
A.
In 2004, federal agents discovered via an authorized wiretap of Grant’s cellular
telephone that Grant headed a heroin distribution ring in the Columbus, Ohio, area.
Grant traveled to New York to obtain more than 100 grams of heroin at a time, which
he then sold to users in the Columbus area. Grant also “fronted” heroin to at least four
distributors for sale to customers during his time in New York. On August 27, 2004, a
search warrant was executed at the home that Grant shared with Tia Holley, one of his
distributors. Agents seized 168.8 grams of heroin, a 9mm Luger pistol with ammunition,
and $4,174 in cash. A search of a separate apartment rented by Grant yielded multiple
firearms and ammunition. Grant also stored both heroin and money at the home of
Tameka Hairston, the mother of one of his children. Investigators determined that
Holley assisted Grant in concealing the illegal source of his income by depositing over
No. 07-3831 United States v. Grant Page 3
$80,000 into her bank account and by submitting a false loan application to purchase a
2004 Lincoln Aviator. Grant also instructed Hairston to wire money from Columbus to
an associate in New York in order to conceal the source of the funds.
Grant was indicted on September 23, 2004, for possession with intent to
distribute heroin and knowing possession of a firearm in furtherance of a drug-
trafficking crime. On January 13, 2005, the government filed a superseding indictment
charging an additional eighty-four counts, including conspiracy to commit money
laundering and operating a continuing criminal enterprise. Grant subsequently entered
into a plea agreement with the government. Under the agreement, Grant agreed to plead
guilty to counts 3, 7, and 89 of the superseding indictment in exchange for dismissal of
the remaining counts. The parties agreed further that the quantity of heroin attributable
to Grant was at least one kilogram but less than three kilograms and that Grant
supervised at least five individuals in his heroin business.
On April 15, 2005, Grant pled guilty to the knowing possession of a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), which
carried a mandatory minimum sentence of five years in prison consecutive to any other
sentence imposed; conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h), which carried a maximum sentence of twenty years in prison; and operation
of a continuing criminal enterprise in violation of 21 U.S.C. § 848, which carried a
mandatory minimum sentence of twenty years in prison and a maximum sentence of life
in prison. The mandatory minimum sentence, therefore, was twenty-five years in prison.
The Presentence Report (“PSR”) first grouped the continuing criminal enterprise
and money laundering counts by applying the offense level of the most serious count.
See U.S.S.G. § 3D1.2(b) (2004). Operation of a continuing criminal enterprise carries
a base offense level of 38, see U.S.S.G. § 2D1.5 (2004), but money laundering takes the
offense level of the underlying crime, see U.S.S.G. § 2S1.1(a)(1) (2004). The PSR then
determined that the underlying offense of the money laundering count was the
continuing criminal enterprise, and thus the money laundering count carried a base
offense level of 38 as well. The specific offense characteristics of money laundering
No. 07-3831 United States v. Grant Page 4
provide for a two-level increase if the defendant was convicted under 18 U.S.C.
§ 1956(h), giving Grant’s money laundering count an adjusted offense level of 40. See
U.S.S.G. § 2S1.1(b)(2)(B) (2004). Once grouped, therefore, Grant had an offense level
of 40, which was then reduced three points to 37 for acceptance of responsibility. With
a criminal history category of V, Grant’s Guidelines range was 324 to 405 months
imprisonment for the continuing criminal enterprise and money laundering counts, with
any sentence for the firearm count to be served consecutively. The PSR recommended
the minimum guideline sentence of 384 months, or thirty-two years, 324 months on the
continuing criminal enterprise and money laundering counts followed by the 60 month
mandatory minimum sentence on the firearm count.
Prior to sentencing, the government filed a request for a downward departure
pursuant to U.S.S.G. § 5K1.1 (2004). The government explicitly did not request a
departure under 18 U.S.C. § 3553(e); thus, the district court lacked the authority to
impose a sentence below the statutory minimum. Rather, citing Grant’s “excellent”
cooperation to date, the government recommended the statutory minimum sentence of
twenty-five years, seven years below the bottom end of the Guidelines range. The
government indicated that Grant’s cooperation was not yet complete and that, if he
continued to testify truthfully, the government would file a motion pursuant to Rule
35(b) recommending a further reduction to sixteen years. At the sentencing hearing on
October 6, 2005, Grant objected to the calculation of his offense level. The district court
denied the objections, finding that the calculations in the PSR were correct. The district
court then sentenced Grant to 300 months, or twenty-five years, in prison. On appeal,
a panel of this court affirmed. See United States v. Grant, 214 F. App’x 518 (6th Cir.
2007). The panel declined to address Grant’s argument that the district court improperly
calculated his Guidelines range because any alleged errors were rendered harmless when
the district court imposed the statutory minimum sentence. Id. at 520–21.
No. 07-3831 United States v. Grant Page 5
B.
On April 16, 2007, the government filed a request for a sentence reduction
pursuant to Rule 35(b). One effect of this motion was that the district court for the first
time had the authority to impose a sentence below the statutory minimum. See Fed. R.
Crim. P. 35(b)(4). The government indicated that Grant’s cooperation was now
“substantially complete” and he had “contributed to the resolution of the charges
pending against the vast majority of his . . . fellow heroin distributors.” The government
also noted that Grant testified for the prosecution in a state homicide trial. The
government therefore requested a nine-year sentence reduction to sixteen years, equal
to half of the sentence originally recommended in the PSR.
Grant joined the motion and requested that his sentence be further reduced below
sixteen years. Grant argued that a further reduction was warranted because: (a) he
provided substantial assistance in the prosecution of his co-conspirators; (b) his
cooperation went beyond what was contemplated by the plea agreement because he
testified for the state in an Ohio homicide prosecution carrying the death penalty; (c) the
evidence that supported the firearm count under 18 U.S.C. § 924(c) could have been a
two-level Guidelines enhancement rather than a separate conviction; (d) the scope of
Grant’s continuing criminal enterprise was smaller than many others; (e) a criminal
history category of V overrepresented the seriousness of Grant’s record; (f) the money
laundering count should have been “subsumed” into the continuing criminal enterprise
count; and (g) the mother of two of Grant’s children had recently died from cancer,
leaving the children without a natural parent available as a caregiver.
A hearing was held on the Rule 35(b) motion on April 27, 2007. The court
considered arguments as to whether any additional reduction was warranted by Grant’s
testimony in the state death penalty case but indicated that the remainder of Grant’s
arguments were not relevant at a Rule 35(b) hearing:
The Court is not here today to talk in terms of resentencing and bringing
up issues of the two-point enhancement instead of a five-year
consecutive charge. The Court is not here today to determine the scope
and breadth of the CCE—that is, continuing criminal enterprise—that
No. 07-3831 United States v. Grant Page 6
was not as extensive as many CCEs and, therefore, a lesser sentence is
warranted. The Court is not here to talk about or listen to whether the
defendant’s criminal history was overrepresented or whether the money
laundering count should be subsumed within the CCE or the defendant’s
family background, at all. That has been resolved at previous hearings
and, by my thinking, Mr. Grant, resolved in your favor considerably.
I’ve got enough to do without redoing things that have been completed,
much to the benefit of the defendant, but, Mr. Grant, I’m not going to
hold this against you. All I’m going to say is, I am not going to listen to
any arguments, now or ever, with regard to sentences that have been
agreed upon and which have been imposed.
Transcript of Proceedings at 6–7, United States v. Grant, No. CR-2-04-161 (S.D. Ohio
April 27, 2007). After the prosecution clarified that Grant had never actually agreed to
the nine-year reduction and had always maintained his right to argue for a greater
reduction, the court modified its position slightly, but still reiterated its complete
rejection of five of Grant’s seven arguments:
The issues that you’re referring to are guideline issues and Section
3553(a) issues that the Court entertains at the time of sentencing,
initially, not at the time of a Rule 35 motion. Now, if you want to argue
that your assistance has been over and above what everyone defined as
being substantial at the outset, then you can argue that, and that’s a
relevant argument, and I’m more than willing to listen to that. . . . But
with regard to any guideline argument or any of the other issues that
were brought up in the memorandum, I will not listen to.
Id. at 10–11. At the close of arguments, the district court granted the government’s Rule
35(b) motion and reduced Grant’s sentence to 192 months, or sixteen years. This timely
appeal followed.
II.
Before we reach the merits of Grant’s arguments, we must address the
government’s argument that we lack jurisdiction to hear this appeal. Where the district
court grants a Rule 35(b) motion, this court has no jurisdiction to review the extent of
the downward departure for substantial assistance. United States v. Moran, 325 F.3d
790, 793 (6th Cir. 2003). However, exceptions created in 18 U.S.C. § 3742(a) provide
us with jurisdiction to review a final sentence, including those imposed after a Rule
No. 07-3831 United States v. Grant Page 7
35(b) reduction. “[A] defendant may appeal an ‘otherwise final sentence’ if the sentence
(1) was imposed in violation of law; (2) was imposed as a result of an incorrect
application of the sentencing guidelines; (3) is greater than the sentence specified in the
applicable guideline range; or (4) was imposed for an offense for which there is no
guideline and is plainly unreasonable.” Id. at 792 (quoting 18 U.S.C. § 3742(a)).
Although Grant is ultimately seeking a greater reduction to his sentence, on
appeal he is arguing that the methodology the district court used to impose his sentence
was in violation of the law. Specifically, Grant claims that the district court committed
an error of law by misapprehending the factors it was allowed to consider in deciding
the Rule 35(b) motion. Therefore, his appeal is subject to our jurisdiction under 18
U.S.C. § 3742(a)(1).1 See id. at 794 (“[Section] 3742(a)(1) permits a defendant to appeal
a final sentence that was imposed in violation of the law.”); United States v. Chapman,
532 F.3d 625, 628 (7th Cir. 2008) (explaining that an assertion of a “methodological
error alleges an error of law subject to our jurisdiction under section 3742(a)”)
(quotations omitted); United States v. Doe, 351 F.3d 929, 932 (9th Cir. 2003) (holding
that an appellate court has jurisdiction under § 3742(a) to determine whether a district
court can consider factors other than substantial assistance when resolving a Rule 35
motion); United States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996) (same); cf. United
States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008) (noting that this court has
jurisdiction to review a decision where a district court misunderstood its discretion as
a matter of law).
III.
The core issue in this appeal is whether a district court may consider factors
outside the value of the substantial assistance provided by a defendant in ruling on a
Rule 35(b) motion to reduce his sentence and, if such factors may be considered, how
they may affect the extent of the reduction.
1
Based on the framing of the issues in the appellant’s initial brief before the panel in this court,
my view, expressed in dissent from the panel opinion, was that we lacked jurisdiction over that part of the
appeal challenging the extent of the sentence reduction. That view changed, however, with the iteration
of the issues for en banc review.
No. 07-3831 United States v. Grant Page 8
Based on differences between the texts of 18 U.S.C. § 3553(e) and Rule 35
resulting from amendment of the rule in 2002, Grant argues that a sentence reduction
under Rule 35(b) is not limited solely to the value of the defendant’s assistance. Rather,
he contends that § 3553(a) factors may be used as a basis for reducing a sentence when
a Rule 35(b) motion is made. Moreover, he says that the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), which mandates that district courts
consider § 3553(a) factors when imposing a sentence, requires consideration of
§ 3553(a) factors at post-sentencing Rule 35(b) determinations. Finally, he insists that
the procedural history of his case has denied him a full consideration of the § 3553(a)
factors. He reasons that, because the district court could not depart below the statutory
minimum at his original sentencing, the court should have been able to consider the
§ 3553(a) factors in connection with the Rule 35(b) motion.
We consider Grant’s arguments in turn and reject them.
A.
We first look to the text of Rule 35(b) and give the words their plain and ordinary
meaning at the time of their enactment. Where the language is plain, our “sole function
. . . is to enforce it according to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534
(2004) (citation omitted). The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v. Shell
Oil Co., 519 U.S. 337, 340 (1997). Where a plain reading “fails to produce a conclusive
result, or where it leads to ambiguous or unreasonable results, a court may look to
legislative history to interpret a statute.” Limited, Inc. v. Comm’r, 286 F.3d 324, 332
(6th Cir. 2002).
As a general matter, Rule 35(b) is intended to “facilitate law enforcement by
enabling the government to elicit valuable assistance from a criminal defendant . . . after
he was sentenced . . . by asking the sentencing judge to reduce the defendant’s sentence
as compensation for the assistance that he provided.” United States v. Shelby, 584 F.3d
No. 07-3831 United States v. Grant Page 9
743, 745 (7th Cir. 2009). When the government files its motion within one year of
sentencing, Rule 35(b)(1) controls:
(1) In General. Upon the government’s motion made within one year
of sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in
investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing commission’s
guidelines and policy statements.2
Fed. Rule Crim. P. 35(b)(1)(2006).
Subsection (b)(2), the subsection under which the government requested Grant’s
reduction, then describes the circumstances under which a motion filed more than one
year after sentencing may be granted:
(2) Later Motion. Upon the government’s motion made more than one
year after sentencing, the court may reduce a sentence if the defendant’s
substantial assistance involved:
(A) information not known to the defendant until one
year or more after sentencing;
(B) information provided by the defendant to the
government within one year of sentencing, but which did
not become useful to the government until more than one
year after sentencing; or
(C) information the usefulness of which could not
reasonably have been anticipated by the defendant until
more than one year after sentencing and which was
promptly provided to the government after its usefulness
was reasonably apparent to the defendant.
Fed. R. Crim. P. 35(b)(2).
2
The current version of Rule 35(b) is somewhat different from the version in effect at the time
of Grant’s sentencing. After Booker, the Committee on Rules of Practice and Procedure deleted subsection
(b)(1)(B), which limited the court’s authority to reduce a sentence to situations where “reducing the
sentence accords with the Sentencing commission’s guidelines and policy statements.” Because Booker
excised the statutory subsection that had made the Sentencing Guidelines mandatory, subsection (b)(1)(B)
was similarly deleted “because it treat[ed] the guidelines as mandatory.” Fed. R. Crim. P. 35(b), Advisory
Committee on Criminal Rules’s notes 2007 Amendments.
This change does not impact our analysis of this case, and the dissent inflates its significance by
suggesting that the Advisory Committee’s general explanatory language about the import of Booker
somehow relates to Rule 35 in particular. Among other reasons, this conclusion is unwarranted because
the same language appears in the Advisory Committee’s notes about the 2007 amendments to Federal Rule
of Criminal Procedure 32. The Committee was merely describing Booker, not suggesting an unstated
change in Rule 35(b).
No. 07-3831 United States v. Grant Page 10
The text of the rule does not tell us whether it authorizes district courts to look
to § 3553(a) factors in deciding the extent of a sentence reduction. Subpart (b)(1)(A)
could be read to permit a downward adjustment only on the basis of the defendant’s
substantial assistance, as it is the only part of the rule that provides a justification for a
reduction.3 On the other hand, the rule does not expressly forbid consideration of other
factors, and, at the time Grant was given his post-sentence reduction, subpart (b)(1)(B)
required that the “Sentencing Commission’s guidelines and policy statements” be
considered before granting any reduction. Based purely on a reading of the text, we
cannot conclude that consideration of the § 3553(a) factors is prohibited, permitted, or
required.
We can, however, glean some guidance from the context of the rule, including
its title. The title of Rule 35(b), “Reducing a Sentence for Substantial Assistance,”
undermines Grant’s position in that it specifies that the defendant’s substantial assistance
forms the impetus for the court’s ability to reduce an already-final sentence. Although
the title of a rule or statute is not as critical to our analysis as the text itself, the Supreme
Court previously has looked to titles to aid its analysis. For example, in Begay v. United
States, the Court was faced with the question of whether driving under the influence
qualified as a “violent felony” under the Armed Career Criminal Act (“ACCA”). 553
U.S. 137, 139 (2008). In support of its holding that a DUI was not a violent felony, the
Court observed that the title of ACCA suggested that the Act focused on a “special
danger” created by guns such that it was not enough that a crime presented a “potential
risk of physical injury,” as the dissent argued. Id. at 146–47. When considered in
conjunction with other indicators, the title of the statute led the Court to hold that a DUI
is not a “violent felony.” Similarly, in this case, the title explains that courts are able to
reduce a defendant’s sentence for his substantial assistance.4
3
Furthermore, subsection (b)(2) specifies that the district court “may” grant a sentence reduction
“if the defendant’s substantial assistance involved” certain factors. Fed. R. Crim. P. 35(b)(2). And
subsection (b)(3) allows the district court to consider presentence cooperation “[i]n evaluating” a
defendant’s “substantial assistance.” Fed. R. Crim. P. 35(b)(3).
4
In addition, the title of Rule 43(b)(4) describes a Rule 35 proceeding as a “Sentence Correction”
and dictates that a defendant need not be present for such a “correction or reduction of sentence”
proceeding. Fed. R. Crim. P. 43(b)(4).
No. 07-3831 United States v. Grant Page 11
Subsection (b)(3) provides further context. It instructs courts that a defendant’s
presentence assistance may be taken into consideration when evaluating whether a
defendant has provided substantial assistance. Although this does not exclude the
possibility that other factors could be considered when deciding the magnitude of the
reduction, it is instructive that the rule specified only a method of evaluating assistance
and omitted any reference to consideration of other factors anywhere in the rule.
Therefore, although a plain reading of the text of the rule is ambiguous, an examination
of the context of Rule 35(b) as a whole strongly suggests that the district court acted
within its discretion in examining only the value of Grant’s assistance.5
B.
Grant argues that Rule 35(b)’s focus on reductions for substantial assistance was
altered by the 2002 amendments to the rule, so that the rule now permits consideration
of § 3553(a) factors in determining the extent of a reduction. In order to evaluate this
argument, we turn to the legislative history and Rule 35's amendment history. Rule
35(b)’s authorization of substantial-assistance-based sentence reductions was enacted
by Congress as part of the Sentencing Reform Act of 1984. The amendment, which was
not to take effect until November 1, 1987, read:
Correction of Sentence for Changed Circumstances. The court, on motion
of the Government, may within one year after the imposition of a
sentence, lower a sentence to reflect a defendant’s subsequent,
substantial assistance in the investigation or prosecution of another
person who has committed an offense, to the extent that such assistance
is a factor in applicable guidelines or policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C. 994(a).
5
We note also that Rule 35 is a specific exception to the general rule that a sentence may not be
subsequently modified. 18 U.S.C. § 3582(c)(1)(B). Congress provided that a district court may modify
a sentence “to the extent otherwise expressly permitted . . . by Rule 35 . . . .” Id. If Rule 35 allowed a full-
scale resentencing, then it would have made little sense for Congress to have limited the modification to
“the extent” “expressly” provided because § 3553(a) would permit the district court to resentence a
defendant to any procedurally and substantively reasonable term. Cf. Gall v. United States, 552 U.S. 38,
51 (2007). Again the statutory context indicates that Rule 35 must expressly define the “extent” of a
modification in a more limited fashion than Grant surmises.
No. 07-3831 United States v. Grant Page 12
Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 215, 98 Stat. 2016. The
Sentencing Reform Act also created 18 U.S.C. § 3582, which allowed for post-
sentencing modification of a sentence in certain defined situations:
Modification of an Imposed Term of Imprisonment. The court may not
modify a term of imprisonment once it has been imposed except that—
(1) in any case—
...
(B) the court may modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure.
18 U.S.C. § 3582(c)(1)(B).
The authority to depart below mandatory minimum sentences was not given to
district courts until the Anti-Drug Abuse Act of 1986, which further amended Rule 35
before the effective date of the 1984 amendments. As amended, the new Rule 35(b)
provided:
Correction of Sentence for Changed Circumstances. The court, on
motion of the Government, may within one year after the imposition of
a sentence, lower a sentence to reflect a defendant’s subsequent,
substantial assistance in the investigation or prosecution of another
person who has committed an offense, in accordance with the guidelines
and policy statements issued by the Sentencing Commission pursuant to
section 994 of title 28, United States Code. The court’s authority to
lower a sentence under this subdivision includes the authority to lower
such sentence to a level below that established by statute as a minimum
sentence.
Anti-Drug Abuse Act of 1986, Pub L. No. 99-570, § 1009, 100 Stat. 3207-8. The same
Act also created § 3553(e), which permits the imposition of an initial sentence below a
statutory minimum upon the defendant’s substantial assistance and the government’s
motion. The statute provides:
(e) Limited authority to impose a sentence below a statutory minimum.
Upon motion of the Government, the court shall have the authority to
impose a sentence below a level established by statute as a minimum
No. 07-3831 United States v. Grant Page 13
sentence so as to reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an
offense. Such sentence shall be imposed in accordance with the
guidelines and policy statements issued by the Sentencing Commission
pursuant to section 994 of title 28, United States Code.
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1007, 100 Stat. 3207-7 (codified
at 18 U.S.C. § 3553(e)).
At the time they went into effect, Rule 35(b) and 18 U.S.C. § 3553(e) were
essentially identical, except that § 3553(e) applied at original sentencings and Rule 35(b)
applied to post-sentence reduction motions. They each provided a limited circumstance
in which a defendant, by providing substantial assistance, could obtain a reduction of his
sentence below a mandatory minimum. The critical language in each, from Grant’s
perspective, was that the reduction in the sentence was to be given “to reflect a
defendant’s subsequent, substantial assistance.” Fed. R. Crim. P. 35(b) (1987) (emphasis
added).6 Because both rules were passed and took effect contemporaneously, both
permitted a district court to sentence below a mandatory minimum, and both constituted
express exceptions to the finality-of-sentence rule in § 3582(c)(1)(B), the two are often
interpreted consistently, along with their Guidelines counterpart, U.S.S.G. § 5K1.1.7
See, e.g., United States v. Monus, 20 F. App’x 511, 512 n.1 (6th Cir. 2001) (“A motion
under § 3553(e) is the pre-sentence equivalent of a Rule 35(b) motion.”); United States
v. Marks, 244 F.3d 971, 973 n.1 (8th Cir. 2001) (collecting cases and stating, “In
analyzing the application of Rule 35(b), we rely . . . upon cases decided under § 5K1.1
. . . and 18 U.S.C. § 3553(e) . . . .”); United States v. Perez, 955 F.2d 34, 35 (10th Cir.
1992) (applying the requirement that the government file a motion under § 5K1.1 before
a court has jurisdiction to consider a reduction pursuant to motions under Rule 35(b));
6
The language in § 3553(e) is identical save for the word “subsequent.” This reflects the timing
differences between the rule and the statute; while § 3553(e) rewarded a defendant’s pre-sentencing
cooperation, Rule 35(b) applied to post-sentencing assistance.
7
Section 5K1.1 itself does not permit a reduction below a mandatory minimum, although it is
often accompanied by a motion under § 3553(e), which does permit such a reduction.
No. 07-3831 United States v. Grant Page 14
United States v. Doe, 940 F.2d 199, 203 n.7 (7th Cir. 1991) (“Rule 35(b) and § 3553(e)
must be read consistently with their Sentencing Guidelines counterpart, § 5K1.1.”).
We have rejected the notion that factors not related to cooperation may be
considered in connection with a § 3553(e) motion. In United States v. Bullard, the
defendant argued that the district court erred by not considering facts regarding his
family background and the effects of incarceration on his children (submitted as part of
his sentencing memorandum) when determining the extent of the departure below a
mandatory minimum pursuant to the government’s motion under § 3553(e). 390 F.3d
413, 414–15 (6th Cir. 2004). We rejected the argument, finding that “[o]ur case law
confirms the limited ability for downward departures,” which “must be based solely
upon the ‘substantial assistance’ rendered by the defendant.” Id. at 416 (quoting United
States v. Snelling, 961 F.2d 93, 97 (6th Cir. 1991)) (quotation marks omitted).
Moreover, “only factors relating to a defendant’s cooperation may influence the extent
of a departure pursuant to § 3553(e).” Id. (quoting United States v. Winston, 198 F.3d
248, 1999 WL 993925, at *3 (6th Cir. Oct. 20, 1999) (unpublished table decision))
(quotation marks omitted). This conclusion is consistent with the views of other circuits
that have addressed the issue.8
Section 3553(e) has remained unchanged since its enactment, while Rule 35(b)
has undergone various revisions under the authority of the Judicial Conference
Committee on Rules of Practice and Procedure.9 In 2002, the committee modified Rule
8
See United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002); United States v. Williams, 551 F.3d
182, 186–87 (2d Cir. 2009); United States v. Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009); United States
v. Desselle, 450 F.3d 179 (5th Cir. 2006); United States v. Thomas (Thomas II), 11 F.3d 732, 737 (7th Cir.
1993); United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009); United States v. A.B., 529 F.3d 1275,
1281–82 (10th Cir. 2008); United States v. Mangaroo, 504 F.3d 1350, 1356 (11th Cir. 2007); In re Sealed
Case, 449 F.3d 118, 125 (D.C. Cir. 2006).
9
Before a Federal Rule of Criminal Procedure can be amended, it must go through a seven-step
rulemaking process. After a proposed change to the rule is reviewed and drafted by the appropriate
Advisory Committee, the amendment is subject to public notice and comment. The comments are
considered and incorporated, and approval is needed from both the Advisory Committee and the
Committee on Rules of Practice and Procedure. The full Judicial Conference must also approve the final
rule, which is then subject to final approval by the Supreme Court. If accepted, the rule takes effect after
Congress has been given at least seven months to reject, modify, or defer it. See generally A
Summary for the Bench and Bar, Federal Rules of Practice and Procedure, available at
http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/
RulemakingProcess/SummaryBenchBar.aspx.
No. 07-3831 United States v. Grant Page 15
35 “as part of the general restyling of the Criminal Rules to make them more easily
understood and to make style and terminology consistent throughout the rules.” Fed. R.
Crim. P. 35(b) Advisory Committee on Criminal Rules’s notes 2002 amendments. The
committee also made a substantive amendment to the rule that extended the time during
which a Rule 35(b) reduction could be requested. Id. The new version of the rule,
quoted above, allowed courts to reduce defendants’ sentences should they provide
substantial assistance, but no longer specified that the reduction “reflect” that assistance.
This change was not thought by the advisory committee to be substantive and does not
necessarily operate in a substantive way, and accordingly we treat the change as
“stylistic” only. Id.
In United States v. Poland, the First Circuit recognized the obvious tension
between the amendment’s deletion of the rule’s “to reflect” language and the advisory
committee’s assertion that the change was purely stylistic. 562 F.3d 35, 39 (1st Cir.
2009). The district court read the excised language back into the rule in an attempt to
avoid a Rules Enabling Act conflict, see 28 U.S.C. § 2072(b), and the First Circuit
affirmed, although on different grounds.10 The clear parallels in the histories of Rule
35(b) and § 3553(e) led the court to believe that “Congress doubtless intended” that
“reductions for substantial assistance below the statutory minimum—whether at initial
sentencing or on sentence reduction—[be] governed by the same standards.” Id. at 40.
Therefore, the court reasoned that even if the “to reflect” language had never been
included in Rule 35(b), “the courts would still have considered the two enactments in
para materia, there being no obvious reason why Congress would want the reflects
limitation to apply in one context but not in the other.” Id. The district court properly
refused to grant a reduction greater than what was warranted by the defendant’s
assistance because “Congress has never changed the statutory rule that [Rule 35(b)]
reductions must reflect only the assistance provided,” nor has it shown “any desire to
10
Like the First Circuit, we decline to reach the issue of whether the amendment of Rule 35(b),
if read as Grant advocates, would violate the Rules Enabling Act.
No. 07-3831 United States v. Grant Page 16
create a discrepancy for post-sentence adjustments below the mandatory minimum.” Id.
at 41.
At most, the 2002 amendment injected a bit of ambiguity into the text of Rule
35(b). The amendment does not speak to consideration of the § 3553(a) factors. The
amendment does not change the purpose of Rule 35(b) or require a departure from the
longstanding practice of interpreting the rule in lockstep with § 3553(e) and § 5K1.1.
Upon reading the text of the rule in conjunction with its history and broader statutory
context, we resolve the ambiguity against Grant’s favored interpretation of the amended
rule and conclude that Rule 35(b) permits reductions based on substantial assistance
rather than other factors.
C.
Grant also argues that, even if Rule 35(b) does not address whether the court may
consider § 3553(a) factors, Booker requires consideration of them when a court
resentences pursuant to a Rule 35(b) motion. Initially, we note that the Sixth
Amendment right to trial by jury, the topic of concern in Booker, has no application to
a Rule 35(b) motion. The Booker discussion of a district court’s consideration of
§ 3553(a) factors occurs in the context of the Court’s explanation of sentencing
procedures to be utilized in an advisory guideline regime. As Booker and post-Booker
precedents have clarified, the procedural and substantive requirements attendant to
original sentencings are not mandatory in other contexts. See Booker, 543 U.S. at 258
(listing statutory provisions unaffected by the Court’s holding); see also United States
v. Washington, 584 F.3d 693, 700–01 (6th Cir. 2009); United States v. Johnson, 356 F.
App’x 785, 790–92 (6th Cir. 2009) (concluding that Booker did not affect supervised-
release-revocation proceedings). Most importantly, in United States v. Dillon, 130 S.
Ct. 2683, 2693 (2010), the Supreme Court held that Booker does not apply to sentence
reductions under 18 U.S.C. § 3582(c)(2), a context closely analogous to Rule 35(b)
reductions. Significantly, the Court analogized § 3582(c)(2) proceedings to Rule 35(b)
proceedings and described both as “congressional act[s] of lenity” that do not entail
“plenary” resentencings. Id. at 2691–92. Finally, we note that Grant’s brief cites no
No. 07-3831 United States v. Grant Page 17
authority for its bold assertion that consideration of the § 3553(a) factors is now required
when a district court considers a Rule 35(b) motion for reduction of sentence. We reject
the argument that a district court must consider § 3553(a) factors in connection with a
Rule 35(b) motion. See also United States v. Bowers, 615 F.3d 715, 728 (6th Cir. 2010)
(“[A] defendant’s allegation of Booker unreasonableness in a Rule 35(b) proceeding . . .
is not a cognizable ‘violation of law’ appealable under [18 U.S.C.] § 3742(a).”).
D.
Finally, Grant suggests that the procedural posture of his case requires that the
§ 3553(a) factors be considered in connection with the government’s Rule 35(b) motion.
The basis for this argument is Grant’s assertion that, because he was originally sentenced
to the mandatory minimum sentence, he was deprived of consideration of the § 3553(a)
factors at that time. Therefore, he posits, consideration of the § 3553(a) factors is
required now that the government’s Rule 35(b) motion has removed the barrier of the
mandatory minimum sentence.
This argument is problematic. Whether Grant’s original sentencing hearing
included full consideration of § 3553(a) factors is immaterial to his original sentence.
The district court gave him the lowest possible legal sentence. And application of
§ 3553(a) is not constitutionally required. The provision thus has no status beyond that
which it is given by statute or rule in a given context. Courts routinely sentence
defendants according to mandatory minimums and do so without reference to the
§ 3553(a) factors because the relevant statutes restrict their discretion. See United States
v. Penney, 576 F.3d 297, 317 (6th Cir. 2009) (“[Section] 3553(a) factors do not apply
to congressionally mandated sentences.”) (citation omitted). Thus, our conclusion that
Rule 35(b) does not require or authorize consideration of § 3553(a) factors effectively
forecloses Grant’s argument.
No. 07-3831 United States v. Grant Page 18
IV.
Our conclusion that the § 3553(a) factors have no role in Rule 35(b) proceedings
does not affect the methods by which district courts have traditionally determined the
value of a defendant’s substantial assistance. These methods are not only governed by
the language of the rule and governing statutes, but they also take into account the
practicalities of the context.
When faced with a Rule 35(b) motion, the district court must initially decide
whether the defendant did in fact render substantial assistance. If he did not, the motion
is denied. The explicit language of the rule permits relief only “if” there has been
substantial assistance. If, however, the court determines that the defendant did provide
substantial assistance within the meaning of the rule, then the rule gives the district court
ample discretion. The granting of the motion is discretionary, as is the extent of any
reduction given. The government may recommend a particular reduction, but the district
court need not follow the recommendation. The district court is free to give a lesser or
greater reduction than any recommendation. The value of the substantial assistance is
the governing principle in this exercise of discretion, and the reduction may not exceed
the value of the assistance.
The role that we have outlined for district courts in the resolution of a Rule 35(b)
motion does not impose any obligation to conduct a new Booker resentencing, and we
have not modified the nature of a Rule 35(b) hearing. Our limitation of Rule 35(b)
rulings to a determination of the value of substantial assistance does not eliminate the
traditionally broad discretion that district courts exercise in valuing the assistance.
Determining the extent to which a sentence should be reduced would, as a matter
of course, include consideration of the defendant’s activities on behalf of the government
and how much his assistance helped in the investigation or prosecution of another. But
the extent of the reduction might be tempered by other factors affecting the valuation.
The district judge might wish to consider the context surrounding the initial sentence in
valuing the assistance. For example, a district court might recognize that a defendant’s
assistance is of extremely high value but also recognize that fully valuing the
No. 07-3831 United States v. Grant Page 19
cooperation would give the defendant a sentence much lower than co-defendants who
were far less culpable. Giving a lesser reduction under these circumstances might well
be warranted. Similarly, if the defendant was among the least culpable in a multi-
defendant case, his extremely valuable assistance could be fully rewarded. Another
typical situation involves consideration of a defendant’s capacity for abiding by the law.
A defendant whose prior criminal activity is non-existent or not too serious could be
fully rewarded for his valuable assistance, while the valuable cooperation of a defendant
who is a threat to society might not be rewarded quite so highly. And, finally, a district
judge might properly consider a sentence below a certain point inappropriate for a
defendant convicted of a heinous crime, and thus value his cooperation less, while the
equivalent cooperation of a defendant who is not a threat to society could be fully
valued. These sorts of contextual considerations have traditionally been considered by
district courts in determining the value of cooperation and the extent of any reduction
under § 3553(e) and § 5K1.1.
The appropriate balancing of the determinative factors tied to a defendant’s
substantial assistance is within the sound discretion of the district court and often arises
from the specific context of each case. Assigning a number of years or months in prison
to a defendant’s cooperation is not a task that can be carried out with mathematical
certainty. One district judge might decline to consider the contextual factors we
mention; another might deem them useful. The choice is that of the district court.
Contrary to the fears of the dissent about district court “confusion,” district judges are
fully capable of weighing the contextual factors we mention, as appropriate, and
ultimately arriving at a conclusion as to the extent of any reduction.
One unfortunate consequence of accepting Grant’s arguments would have been
creating unwarranted sentencing disparities between defendants, like Grant, whose
cooperation with the government occurs at least in part after sentencing and those who,
by happenstance, complete their cooperation before sentencing. Under Grant’s scenario,
defendants in his situation would receive full consideration of § 3553(a) factors in
connection with a reduction below a mandatory minimum, while those sentenced
No. 07-3831 United States v. Grant Page 20
pursuant to a motion under § 3553(e) would not. See Bullard, 390 F.3d at 417. The
result we reach maintains congruity between the pre-sentence and post-sentence
contexts.
The practical implications of this decision are quite similar to those of our sister
circuits. Cf. Shelby, 584 F.3d at 748 (“[T]he judge must reserve the right to condition
the grant of a Rule 35(b) motion, in whole or in part, on its consistency with the statutory
sentencing factors, in order to make sure that the reduced sentence is not unjust. But
there is no comparable reason for the judge to reexamine the entire sentence under
section 3553(a).” (citations omitted)); Poland, 562 F.3d at 41 (holding that Rule 35(b)
“reductions must reflect only the assistance provided”); Doe, 351 F.3d at 932–33
(holding that the § 3553(a) factors may be considered, but only for the limited purposes
of reducing the size of the sentence reduction); Manella, 86 F.3d at 204–05 (same).
Although there is an obvious overlap between some of the factors we view as
appropriate aspects of valuing the assistance given and the § 3553(a) factors, mingling
the terminology of § 3553(a) with the concept of valuation of assistance evokes a
Booker-type proceeding, which does not reflect the purpose of Rule 35(b) or the ways
that district courts have traditionally evaluated a defendant’s substantial assistance.
Moreover, a focus on § 3553(a) as a starting point for analysis clouds the analytical
exercise that the district court must undertake, which is to determine whether the
defendant is entitled to a reduction for substantial assistance and, if he is, the extent of
the reduction. Cf. Bullard, 390 F.3d at 417.
V.
Having decided the core issue in this case, we briefly dispose of Grant’s
argument that his Guidelines range was improperly calculated by the district court at his
original sentencing hearing. We recognize that there is uncertainty as to whether it is
appropriate to consider the district court’s original Guidelines calculation in reviewing
an issue arising from a subsequent Rule 35(b) proceeding. See Dillon, 130 S. Ct. at
2694. We decline to resolve that issue here because we may quickly conclude that the
district court correctly calculated Grant’s Guidelines range. The proper calculation of
No. 07-3831 United States v. Grant Page 21
a defendant’s Guidelines range is one facet of the procedural reasonableness for which
we review a defendant’s sentence. Gall, 552 U.S. at 51. “In reviewing the district
court’s calculation of the Guidelines, we still review the district court’s factual findings
for clear error and its legal conclusions de novo.” United States v. Bolds, 511 F.3d 568,
579 (6th Cir. 2007) (citing United States v. Lalonde, 509 F.3d 750, 763 (6th Cir. 2007)).
The district court used continuing criminal enterprise as the underlying crime for
the money laundering count. Grant argues that the district court instead should have
found his trafficking of heroin to be the underlying crime for his money laundering
count, resulting in an adjusted offense level of 34. Under Grant’s scenario, when the
counts were grouped, the continuing criminal enterprise count would then have carried
the higher offense level, and Grant would have been left with a total offense level of 35,
two points lower than the offense level utilized by the district court. Grant claims that
this calculation is important because the government’s recommended sentence reduction
was intended to leave Grant with a sentence half the length of his minimum exposure at
sentencing.
Heroin trafficking qualifies as one element of the crime of operation of a
continuing criminal enterprise. See 21 U.S.C. § 848(c); United States v. Long, 190 F.3d
471, 474–75 (6th Cir. 1999). Thus, any trafficking proceeds that Grant laundered or
caused Holley and Hairston to launder were also proceeds of the continuing criminal
enterprise. Considering the additional fact that Grant did not plead guilty to heroin
trafficking, the district court did not err by using the continuing criminal enterprise as
the underlying offense of the money laundering count. We find no fault with the district
court’s choice of the higher offense level for money laundering rather than the offense
level for a continuing criminal enterprise.11
11
Grant’s reliance on application note 2 of U.S.S.G. § 3D1.3 (2004) is misplaced because the
counts being grouped in this case are distinct crimes with separate Guidelines provisions that “involv[e]
substantially the same harm” and “transactions connected by a common criminal objective or constituting
part of a common scheme or plan.” U.S.S.G. § 3D1.3 (2004).
No. 07-3831 United States v. Grant Page 22
VI.
We therefore reject Grant’s argument that the resolution of a Rule 35(b) motion
requires full Booker-type consideration of the § 3553(a) factors. The district court acted
properly in refusing to consider Grant’s § 3553(a)-based arguments.12 Because we also
find that the district court properly calculated Grant’s Guidelines range, we affirm
Grant’s sentence.
12
The district court may have mistakenly believed that it could not disregard the government’s
recommendation and give a lesser reduction. If that is indeed the case, its error was harmless. It is obvious
from the record that any reduction given would have been smaller, had the court not accepted the
government’s recommendation.
No. 07-3831 United States v. Grant Page 23
_____________________
CONCURRENCE
_____________________
MERRITT, Circuit Judge, concurring. While insisting that in re-sentencing for
substantial assistance a court need not reconsider all of the § 3553(a) factors that need
to be considered at the original sentencing, our Court’s opinion in the instant case states
that the sentencing judge may consider a wide variety of sentences, including
“consistency with the statutory sentencing factors, in order to make sure that the reduced
sentence is not unjust.” The Court goes on to say that the district judge might wish to
consider the “context” that determined the initial sentence in valuing the assistance, as
well as taking into account “a consideration of a defendant’s capacity for abiding by the
law.” The Court makes it clear that the sentencing court may weigh “these sorts of
contextual considerations after initially being considered by a district court in
determining the value of cooperation and the extent of any reduction under § 3553(e)
and § 5K1.1.”
I concur in the court’s disposition of this case because it gives the district court
wide discretion to go above or below the government’s recommendation in substantial
assistance cases. I believe this wide discretion gives the district court room in its
reconsideration of the sentence to do justice in the case and avoid a sentencing process
in which the prosecutor rather than a neutral magistrate controls the sentence.
No. 07-3831 United States v. Grant Page 24
____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
____________________________________________________
HELENE N. WHITE, Circuit Judge, concurring and dissenting. The question
is whether in allowing for departure from mandatory minimum sentences for defendants
whose substantial assistance is recognized by the government, Congress intended that
the sentencing court be restricted to consideration of only the assistance given,
foreclosing consideration of other unrelated circumstances or characteristics of the
offense or the defendant.
I
The majority concludes that consideration of other factors is permissible only in
evaluating whether the defendant should receive the full sentence reduction that would
otherwise correspond to the assistance. As conceded by the majority, Fed. R. Crim. P.
35(b) in its current form signals no intent to restrict the court’s consideration to the value
or circumstances of the assistance. Nevertheless, a parallel provision, 18 U.S.C.
§ 3553(e),1 has been widely interpreted to circumscribe the sentencing court’s authority,
allowing consideration of only those matters relevant to valuing the assistance.
Additionally, prior iterations of Rule 35(b), like its parallel provision, included language
authorizing departure “to reflect a defendant’s subsequent, substantial assistance.”
Congressional authority to sentence below the statutory minimum in cases of
substantial assistance comes from 28 U.S.C. § 994, which states:
(n) The Commission shall assure that the guidelines reflect the general
appropriateness of imposing a lower sentence than would otherwise be
1
18 U.S.C. § 3553(e) provides:
Limited authority to impose a sentence below a statutory minimum.--Upon motion
of the Government, the court shall have the authority to impose a sentence below a level
established by statute as a minimum sentence so as to reflect a defendant's substantial
assistance in the investigation or prosecution of another person who has committed an
offense. Such sentence shall be imposed in accordance with the guidelines and policy
statements issued by the Sentencing Commission pursuant to section 994 of title 28,
United States Code.
No. 07-3831 United States v. Grant Page 25
imposed, including a sentence that is lower than that established by
statute as a minimum sentence, to take into account a defendant's
substantial assistance in the investigation or prosecution of another
person who has committed an offense.
However, neither the Guidelines nor the policy statements explicitly address sentence
reductions under Rule 35(b).
This history is amply discussed by the majority and dissent. I find nothing in that
history that compels either answer to the question presented. Unlike the majority, I find
no guidance in Rule 35(b)’s title, or in subsection (b)(3). Regarding the title of the rule,
in either case, the reduction is given “for substantial assistance.” And, subsection
(b)(3)’s authorization to consider prior assistance, without mentioning other § 3553(a)
factors, makes sense in the context that taking into account prior assistance is authorized
in considering whether there has been substantial assistance justifying application of
Rule 35(b), not in determining the appropriate sentence reduction. It does not shed light
on the issue presented.
Thus, up to this point in the analysis, I see no compelling argument for either
interpretation of Rule 35(b).
Nevertheless, because I am not convinced that Congress intended one rule to
apply to motions under § 3553(e) and a different rule to apply to motions under Rule
35(b), and given the history of the various amendments to Rule 35(b) I cannot agree with
the dissent’s conclusion that the amendments changed the permissible considerations in
ruling on a Rule 35(b) motion, I agree with the majority that the consistent interpretation
of § 3553(e) to permit only consideration of the value of the assistance, and preclude
consideration of other factors unrelated to the assistance, dictates our decision in this
case. See United States v. Bullard, 390 F.3d 413 (6th Cir. 2004), and cases cited therein.
Thus, I concur with the majority’s conclusion that in resentencing under Rule 35(b), the
court’s task is simply to grant a reduction to reflect the defendant’s substantial
assistance.
No. 07-3831 United States v. Grant Page 26
In this regard, I join in Judge Merritt’s and the dissent’s interpretation of the
majority decision to permit a consideration of a broad range of factors, including
§ 3553(a) factors and others, as long as they are relevant to determining what sentence
reduction appropriately reflects the defendant’s substantial assistance. This
determination need not be made in a vacuum; the court is permitted to craft its own
calculus, as long as it is intended to arrive at a sentence reduction that reflects the
defendant’s substantial assistance and is not otherwise contrary to law.
II
Although I concur in the majority’s legal conclusion, I dissent from the
majority’s application of that conclusion to this case. I would remand for resentencing
on the basis that some of the additional arguments Grant sought to advance were
arguably relevant in determining the value of his assistance and the appropriate sentence
reduction.
On appeal, Grant argues that the government’s position
overlooks the fact that its own motion for downward departure and
motion for a Rule 35(b) sentence reduction both used the original
guideline sentencing range (as calculated by the probation officer) as the
“starting point” for recommending a sentence reduction of 50% of the
bottom end of that range. Its current position that “the original
sentencing range should not be a consideration” is inconsistent with the
position it advocated in the district court.
[Def.’s Final Reply Br. at 7. Citations to record omitted, emphasis in original.] Because
the statutory mandatory minimum rendered the “starting point” irrelevant in the initial
sentencing proceeding and appeal, Grant argues, the “starting point” must be considered
as part of the Rule 35(b) proceeding. The panel opinion acknowledged this argument.2
2
Footnote 2 of the panel majority opinion states:
Grant also argues that the prosecution and the District Court sought to reduce his
sentence to a number equal to half of his original Guidelines range, but that errors in the
initial sentencing calculation resulted in a higher “starting point,” and hence a higher
post-reduction sentence than what he would have received absent legal error. We
conclude that his Guidelines range was calculated correctly, though, thus rendering
moot the question of whether any such alleged error could be the basis for reversal.
No. 07-3831 United States v. Grant Page 27
Grant’s argument in this regard finds support in the record. The government’s
initial sentencing memorandum explained:
By statute, the defendant faces a mandatory minimum sentence of at least
twenty-five years in prison. 21 U.S.C. § 848 and 18 U.S.C. § 924(c).
This motion for reduction has been made solely pursuant to U.S.S.G.
§ 5K1.1 and not under 18 U.S.C. § 3553(e). Thus, the twenty-five year
mandatory sentence by statute still applies.
....
Conclusion
In the opinion of government counsel and the investigating
agents, Kevin Grant’s cooperation, to date, warrants a seven year
reduction in sentence at this time. Under the advisory sentencing
guideline range applicable in his case, a seven year reduction would
require a three offense-level reduction to an offense level 34, criminal
history category V (235 to 293 months in prison).
Based upon the defendant’s cooperation to date, the United States
recommends a sentence of 25 years in prison at this time. We believe
such a sentence takes into account all of the relevant sentencing factors
outline in 18 U.S.C. §3553(a),[3] as well as his cooperation to date.
If the defendant continues to cooperate with authorities and
testifies truthfully, if necessary, at trials of individuals about whom he
has evidence of their criminal activities, the United States will consider
filing a motion, pursuant to Rule 35 of the Federal Rules of Criminal
Procedure, requesting a further reduction in sentence. Provided the
defendant meets all of his commitments, once his cooperation is
completed, the United States will recommend a total sentence of 16 years
in prison (an additional reduction of nine years). Such a recommendation
The majority opinion does not elaborate on that conclusion. And, as noted by the en banc majority, the
panel addressing Grant’s initial appeal declined to address the scoring issues because any alleged errors
were rendered harmless by the statutory mandatory minimum sentence. United States v. Grant, 214 F.
App’x 518, 520-21 (6th Cir. 2007).
3
The government’s reference to and reliance on the 18 U.S. C. § 3553(a) factors is consistent with
my experience, albeit limited, on the court. In a significant number of cases involving sentencing
proceedings in the context of § 3553(e) motions, the court and the government make reference to and
consider 18 U.S. C. § 3553(a) factors. Logically, under United States v. Bullard, 390 F.3d 413 (6th Cir.
2004), a sentencing court should not mention or refer to 18 U.S. C. § 3553(a) until after determining the
value of the assistance, and then only in considering whether to depart from the mandatory minimum to
the full extent of the value of the assistance. Nevertheless, although the government in such cases does
not concede that recalculation of the Guidelines is appropriate, it often either initiates or acquiesces in
consideration of § 3553(a) factors prior to a determination of the value of the assistance.
No. 07-3831 United States v. Grant Page 28
would result in a 50% reduction in the sentence recommended under the
advisory guidelines (384 to 402 months in prison).
Consistent with its earlier position, the governments’s Rule 35(b) motion sought a
reduced sentence of 16 years:
In the opinion of government counsel and the investigating agents, Kevin
Grant’s cooperation, to date, warrants a reduction in sentence from 25 to
16 years in prison. This would be a 50% reduction from the original
advisory guideline range applicable to the facts underlying his
conviction. We believe such a sentence takes into account all of the
relevant sentencing factors outlined in 18 U.S. C. § 3553(a), as well as
the defendant’s cooperation.[4]
It is not clear whether there was, in fact, an understanding that Grant would
ultimately receive a sentence equal to one-half of the otherwise applicable Guidelines
minimum. And, clearly, if there had been such an understanding, it would not have been
binding on the court. Nevertheless, the Guidelines themselves make the government’s
estimation of the value of the assistance a relevant consideration, and if the government
had at one point valued the assistance as worth a reduction to one-half of the otherwise
applicable Guidelines sentence, that fact had potential relevance to the Rule 35(b)
proceeding, and the court was permitted, if not required, to consider the argument.
I would remand for resentencing within the framework announced by the
majority, with instructions to consider Grant’s arguments as they may be relevant to
determining a sentence that appropriately reflects his substantial assistance.
4
The original panel majority observed this inconsistency in the government’s position. United
States v. Grant, 567 F.3d 776, 781 (6th Cir. 2009).
No. 07-3831 United States v. Grant Page 29
_______________
DISSENT
_______________
CLAY, Circuit Judge, dissenting, joined by KEITH, MOORE and COLE, Circuit
Judges. In an apparent attempt to craft a tacit compromise, the en banc majority and
concurring opinions shift their focus away from Petitioner and instead create an
unmanageable legal standard. Because the district court erroneously concluded that it
may not consider the factors enumerated in 18 U.S.C. § 3553(a) on a Rule 35(b) motion,
this Court should vacate the district court’s decision and remand for reconsideration.1
Without deciding whether the district court was required to consider § 3553(a), it is
clear, as the panel majority found, that a district court is not prohibited from doing so.
In finding that it was prohibited from doing so, the district court committed legal error.
I therefore respectfully dissent.
As a preliminary matter, it is apparent that the standard announced by the
majority will lead to unnecessary confusion.2 In her dissent to the now vacated panel
majority decision, Judge Gibbons opined that “substantial assistance” should be the only
factor guiding a departure below a mandatory minimum under Rule 35(b). See United
States v. Grant, 567 F.3d 776, 785 (6th Cir. 2009) (Gibbons, J., dissenting). Yet, in a
departure of her own, Judge Gibbons’ en banc majority opinion would authorize district
courts to consider myriad factors in this regard—so long as the courts do not
acknowledge that the factors emanate from § 3553(a).
1
The district court, the parties, and the majority assume, perhaps erroneously, that each of the
factors advanced by Petitioner before the district court fall within the scope of § 3553(a). For purposes
of this dissent, that assumption is not disturbed. But to the extent Petitioner’s arguments fall outside the
scope of § 3553(a), the district court, in its discretion, must consider whether it is appropriate to apply
those additional factors as well for the reasons stated herein.
2
The majority focuses on the word “confusion” to misstate the dissent’s argument. Contrary to
the majority’s view, no fair reading of this dissent suggests that district judges are not “capable of weighing
the contextual factors” discussed by the majority. (Maj. Op. at 19.) Rather, confusion is likely to arise
because the majority’s opinion, given its internal inconsistences and ambiguities, fails to adequately
instruct district courts on the proper standard to apply. The dissent does not doubt the ability of district
judges to apply the proper legal standard had the majority announced a clear standard to apply.
No. 07-3831 United States v. Grant Page 30
District courts are instructed by the majority opinion, on the one hand, that Rule
35(b) “does not require or authorize consideration of § 3553(a) factors,” yet, on the
other, that district courts may “take into account the practicalities of the context” in
valuing the defendant’s substantial assistance. (See Maj. Op. at 18.) Many of the factors
discussed by the majority—including the nature of the offense and the defendant’s
capacity to abide by the law—are not dissimilar from the factors enumerated in
§ 3553(a). District courts will have to struggle to sort out the internal inconsistencies
and ambiguities of the majority opinion, and this Court may be required to revisit the
issue again in the near future.
The difficulties with the majority opinion are compounded by the ambiguous
nature of its holding. It is unclear whether the majority would hold that the district court
properly exercised its discretion in not considering § 3553(a) (see Maj. Op. at 22 (“The
district court acted properly in refusing to consider Grant’s § 3553(a)-based
arguments.”)), or whether the majority would hold that the district court lacked
discretion to do so in any event (see id. at 16 (“[We] conclude that Rule 35(b) permits
reductions based on substantial assistance rather than other factors.”).) The majority
misses the point by focusing on Petitioner’s argument that the district court was required
to consider the § 3553(a) factors. This dissent does not embrace Petitioner’s argument
in that regard, but rather contends that the district court had the discretion to consider
additional factors. In this case, the district court erred in concluding that it did not have
discretion to do so.
The lack of clarity in the majority’s opinion is perhaps best exemplified by the
majority’s apparent misapplication of its own standard. Whatever the precise nature of
the majority’s holding, the majority at a minimum makes clear that a district court may,
in its discretion, consider additional factors to value a defendant’s substantial assistance.
(See Maj. Op. § IV.) In this case, the district court “[would] not listen to” Petitioner’s
arguments about, for instance, his criminal history and the circumstances of his
underlying conviction, reasoning that these issues are “not [entertained] at the time of
a Rule 35 motion.” (Tr. at 6-7.) Curiously, the majority finds no error in the district
No. 07-3831 United States v. Grant Page 31
court’s ruling, even though the majority holds that a district court may “consider the
context surrounding the initial sentence in valuing the assistance.” (See Maj. Op. at 18.)
The district court plainly failed to consider whether it would do so, instead committing
legal error by concluding that it could not do so.
A. District Court’s Discretion on Resentencing Under Rule 35(b)
The majority’s erroneous disposition of this case is grounded in a
misinterpretation of Rule 35(b). The plain language of the Rule does not restrict a
district court from exercising its discretion to consider various factors in determining a
proper sentencing reduction under Rule 35(b). That a district court may consider the
§ 3553(a) factors specifically, is supported by recent amendments to the Rules and,
perhaps, the express language of § 3553(a). It is also supported by the congressional
purpose of providing for the imposition of a just sentence, which is particularly
compelling in a case such as this where Petitioner was initially sentenced to a mandatory
minimum that divested the district court of authority to consider the § 3553(a) factors
in the first instance.
Turning to the text of Rule 35(b), it provides in pertinent part, as follows:
(1) In General. Upon the 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.
(2) Later Motion. Upon the government’s motion made more than one
year after sentencing, the court may reduce a sentence if the defendant's
substantial assistance involved [certain information which became known
or useful after one year as detailed by Rule 35(b)(2)].
Fed. R. Crim. P. 35(b)(1), (2). Under the plain language of the Rule, a district court
presented with a Rule 35(b) motion first must consider whether the defendant has
provided “substantial assistance,” and if so, to what extent the defendant’s sentence
should be reduced. Rule 35(b) is silent regarding the factors a district court may
consider in reducing a sentence. See Fed. R. Crim. P. 35(b); United States v. Park, 533
No. 07-3831 United States v. Grant Page 32
F. Supp. 2d 474, 476-77 (S.D.N.Y. 2008). Cf. U.S.S.G. § 5K1.1 (providing factors to
guide courts in reducing guideline range for substantial assistance prior to sentencing).
Prior to the 2002 amendments to the Rules, former Rule 35(b) provided that the
court may reduce a sentence “to reflect a defendant’s subsequent, substantial assistance.”
Fed. R. Crim. P. 35(b)(2) (2001) (emphasis added). Many courts have relied on the
phrase “to reflect” to hold that factors other than substantial assistance may not be
considered on a Rule 35(b) motion. See, e.g., United States v. Chavarria-Herrara,
15 F.3d 1033, 1037 (11th Cir. 1994) (“The plain language of Rule 35(b) indicates that
the reduction shall reflect the assistance of the defendant; it does not mention any other
factor that may be considered.”). The 2002 amendments to the Rules, however, removed
this phrasing, leaving the Rule to provide for a sentencing reduction “if the defendant's
substantial assistance” was of a certain kind. See Fed. R. Crim. P. 35(b)(2) (emphasis
added).
This change in the plain language of the Rule is significant. Whereas the word
“reflect” suggests the latter taking into account the former, the word “if” denotes merely
a condition precedent.3 Under the current language, once a defendant provides certain
substantial assistance— and thus satisfies the condition precedent—the district court
may reduce the defendant’s sentence. Nowhere does the Rule limit a district court’s
discretion to consider additional pertinent factors, nor does the Rule provide that the
reduced sentence must “reflect” or be otherwise limited by the value of the defendant’s
substantial assistance—though this would certainly be an important factor. See, e.g.,
United States v. Garcia, 215 F. App’x 948, 949-51 (11th Cir. 2007).
As the majority points out, the Advisory Committee on Criminal Rules
(“Advisory Committee”) did not intend the 2002 amendments to change the meaning of
the Rules. The Advisory Committee reported that many of the changes were part of a
“general restyling of the Criminal Rules to make them more easily understood.” Fed.
3
The majority does not disagree. (See Maj. Op. at 18 (“When faced with a Rule 35(b) motion,
the district court must initially decide whether the defendant did in fact render substantial assistance. If
he did not, the motion is denied. The explicit language of the [R]ule permits relief only ‘if’ there has been
substantial assistance.”).)
No. 07-3831 United States v. Grant Page 33
R. Crim. P. 35—advisory committee notes. To the extent this language was persuasive
at the time of the amendments, cf. Till v. SCS Credit Corp., 541 U.S. 465, 489 (2004)
(rejecting a statutory interpretation based on purported congressional intent in part
because it “ignor[ed] the plain language of the statute . . . .”), however, its persuasive
value has been diminished by subsequent amendments to the Rules.
The majority overlooks the significance of 2007 amendments to the Rules and
the accompanying Advisory Committee notes. One such amendment eliminated Rule
35(b)(1)(B), which formerly read as follows:
Upon the government’s motion made within one year after sentencing,
the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in
investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing Commission’s
guidelines and policy statements.
Fed. R. Crim. P. 35(b)(1)(A), (B) (2006) (emphasis added). The Advisory Committee
eliminated subsection (B) to conform the Rule to United States v. Booker, 543 U.S. 220
(2005). In its notes accompanying Rule 35, the Advisory Committee, citing 28 U.S.C.
§ 3553(a), explained that Booker permits a court to tailor a sentence “in light of other
statutory concerns as well.” Fed. R. Crim. P. 35—advisory committee notes. This
discussion, in the context of Rule 35(b), supports the view that the elimination of Rule
35(b)(1)(B) was intended to prevent limiting the district court’s consideration to only
substantial assistance. It also suggests that the Advisory Committee contemplated that
a district court may apply the § 3553(a) factors in the context of a Rule 35(b) motion.4
4
The majority makes the baffling assertion that the dissent “inflates” the significance of the
amendments to the Rules following Booker. (Maj. Op. at 9 n.2.) Yet the majority does not endeavor to
analyze the persuasive value of the 2007 Amendments, and the majority thereby itself inflates the dissent’s
reliance on the 2007 Amendments. Not only is the significance of the 2007 Amendments collateral to the
dissent’s preferred disposition of this case, but the majority completely writes off any value of the 2007
Amendments to Rule 35 on the basis that the same advisory committee language also accompanies
amendments to Rule 32. Although this seemingly repetitious commentary may show that these notes are
not unique to Rule 35, the notes nonetheless do accompany Rule 35 and suggest that the drafters
anticipated consideration of numerous factors on a Rule 35(b) motion.
No. 07-3831 United States v. Grant Page 34
That the application of Rule 35(b) permits consideration of the § 3553(a) factors
comports with the congressional purpose of providing a just sentence, particularly in a
case such as this where Petitioner was not sentenced above the mandatory minimum.
See 18 U.S.C. § 3553(a). Petitioner was initially sentenced to the lowest available
sentence, a mandatory minimum of 25 years. Since a statute divested the district court
of any authority to consider a sentence less than 25 years, the district court did not—and
could not—look to the § 3553(a) factors.
Now that Rule 35(b) has pierced the mandatory minimum, there is no reason why
Petitioner should be deprived of the district court’s consideration of the § 3553(a) factors
to guide its discretion and arrive at an appropriate sentence.5 The posture of the Rule
35(b) re-sentencing in this case—where Petitioner was initially sentenced to a mandatory
minimum—is not materially different from most initial sentencings. The district court
in both instances would have discretion over the sentences, and neither defendant would
yet have had the § 3553(a) factors applied. In this case, the mandatory minimum
sentence precluded the district court from considering the § 3553(a) factors at
Petitioner’s initial sentencing, but no consideration of fairness or consistency supports
precluding their application now that the district court’s discretion has been restored
through Rule 35(b). Cf. United States v. Lee, 288 F. App’x 264, 269 (6th Cir. 2008) (“A
district court’s failure to consider the § 3553(a) factors would result in a procedurally
unreasonable sentencing determination, potentially requiring the Circuit to vacate and
remand for resentencing.”).
In fact, although ignored by the majority, application of the § 3553(a) factors
might well constitute a statutory right of a defendant in connection with a Rule 35(b) re-
sentencing. Section 3553(a) states that a sentencing court “shall” consider certain
statutory factors. To the extent a Rule 35(b) sentencing reduction constitutes a
“sentence” within the meaning of § 3553(a), a court would be required to consider
§ 3553(a). See, e.g., United States v. Moran, 325 F.3d 790, 792 (6th Cir. 2003) (holding,
5
In somewhat cryptic language, the majority acknowledges that Rule 35(b) “gives the district
court ample discretion.” (Maj. Op. at 18.)
No. 07-3831 United States v. Grant Page 35
in another context, that a “district court’s reduction of [defendant’s] sentence under Rule
35(b) is a ‘sentence.’”).
Although we have held that district courts may consider only the extent of a
defendant’s cooperation on a pre-sentence motion for a downward departure under
18 U.S.C. § 3553(e), see United States v. Bullard, 390 F.3d 413, 416-17 (6th Cir. 2004),
this limitation is grounded in factors enumerated in the Sentencing Guidelines, U.S.S.G.
§ 5K1.1, upon which Bullard relies in part. No such factors are present with respect to
Rule 35(b). Furthermore, Bullard and the cases it cites as authority were decided at a
time when the Sentencing Guidelines were mandatory, and, notably, § 3553(e) requires
the reduced sentence “to reflect” the defendant’s substantial assistance, phrasing that was
excised from Rule 35(b).
Contrary to the position taken by the majority, the district court had the discretion
to consider the § 3553(a) factors in the context of a Rule 35(b) motion. Whether the
district court was required to do so is a question for another day. Because the district
court categorically refused to consider Petitioner’s timely arguments on the Rule 35(b)
motion in his case, this Court should vacate the decision of the district court and remand
for reconsideration.
B. Timeliness of Petitioner’s Arguments
In this case, following the government’s Rule 35(b) motion, Petitioner filed the
following reasons in support of his arguments for a larger reduction than the government
had requested: “(1) he had provided more substantial assistance than had been
contemplated by the initial plea deal; (2) his firearm conviction could have been a
two-point sentencing enhancement, rather than a separate charge with a five-year
mandatory minimum sentence; (3) the scope and breadth of his continuing criminal
enterprise was less extensive than most such enterprises; (4) his criminal history
category overrepresented his actual criminal history; (5) his money laundering
conviction should have been subsumed within his continuing criminal enterprise
conviction; and (6) the mother of two of his children had recently died, depriving them
of a natural parent while he is incarcerated.” Grant, 567 F.3d at 776.
No. 07-3831 United States v. Grant Page 36
At the hearing on the government’s Rule 35(b) motion, the district court rejected
all but Petitioner’s first argument:
The Court is not here today to talk in terms of resentencing and bringing
up issues of the two-point enhancement instead of a five-year
consecutive charge. The Court is not here today to determine the scope
and breadth of the . . . continuing criminal enterprise that was not as
extensive as many [such enterprises] and, therefore, a lesser sentence is
warranted. The Court is not here to talk about or listen to whether the
defendant’s criminal history was overrepresented or whether the money
laundering count should be subsumed within the [continuing criminal
enterprise] or the defendant’s family background, at all . . . . All I’m
going to say is, I am not going to listen to any arguments, now or ever,
with regard to sentences that have been agreed upon and which have
been imposed.
(Tr. at 6-7.) The government responded that Petitioner had maintained his right to argue
for a greater reduction. The district court then stated as follows:
The issues that you’re referring to are guideline issues and Section
3553(a) issues that the Court entertains at the time of sentencing,
initially, not at the time of a Rule 35 motion. Now, if you want to argue
that your assistance has been over and above what everyone defined as
being substantial at the outset, then you can argue that, and that’s a
relevant argument, and I’m more than willing to listen to that . . . . But
with regard to any guideline argument or any of the other issues that
were brought up in the memorandum, I will not listen to.
(Id. at 10-11.)
As the transcript of the proceedings before the district court makes clear, the
court summarily dismissed five of Petitioner’s six arguments as untimely. This was
error, inasmuch as the district court had the discretion to hear the balance of Petitioner’s
arguments. Since the district court erroneously found that it could not—rather than
would not—consider these arguments, the decision should be vacated and the case
remanded to the district court for reconsideration. See, e.g., United States v. Chapman,
532 F.3d 625, 629 (7th Cir. 2008) (upholding district court’s consideration of prior
criminal histories and the seriousness of offenses in the context of a Rule 35(b) motion).
No. 07-3831 United States v. Grant Page 37
C. Conclusion
The proper disposition of this case would consist of this Court vacating the
decision of the district court and remanding the case for reconsideration. On remand,
the district court should be instructed to consider, in its discretion, whether it is
appropriate to apply the § 3553(a) factors, and to the extent Petitioner’s arguments do
not fit within that statutory section (see supra note 1), whether it is appropriate to
consider Petitioner’s additional arguments for a sentencing reduction as well.
For the reasons stated above, I respectfully dissent.