United States v. Ellis

United States Court of Appeals
For the First Circuit

No. 07-1997

UNITED STATES OF AMERICA,

Appellee,

v.

EDWARD B. ELLIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cudahy,* Senior Circuit Judge,
and Lynch, Circuit Judge.

John M. Thompson with whom Thompson & Thompson, P.C. was on
brief for appellant.
Karen L. Goodwin, Assistant U.S. Attorney, with whom Michael
J. Sullivan, United States Attorney, was on brief for appellee.

May 23, 2008

*
Of the Seventh Circuit, sitting by designation.
 LYNCH, Circuit Judge. Edward Ellis is serving a twenty-

five year sentence on a 1990 conviction for the federal crime of

knowingly transporting a minor across state lines to engage in

illegal sexual conduct. 18 U.S.C. § 2423. The facts underlying

his conviction and the procedural history of his case are detailed

in this court's two prior opinions, Ellis v. United States, 313

F.3d 636 (1st Cir. 2002) (denying collateral review under 28 U.S.C.

§ 2255), and United States v. Ellis, 935 F.2d 385 (1st Cir. 1991)

(affirming on direct appeal of conviction), and in a published

district court opinion, Ellis v. United States, 446 F. Supp. 2d 1

(D. Mass. 2006) (considering second petition under § 2255). In

this case, Ellis attempts to shorten his term of imprisonment,

purporting to assert a claim under Fed R. Crim. P. 35(b) based on

assistance Ellis provided to the warden of the federal prison where

he was once incarcerated. The district court rejected his claim,

as do we. We affirm the dismissal of the case.

I.

In 1994, after his conviction and imprisonment, Ellis

provided assistance to the warden of the federal prison in Lompoc,

California, where Ellis was an inmate. The nature of the

assistance is not relevant; it suffices to say that the assistance

was of value to the warden in running the prison. In return for

his assistance, Ellis asserts, the warden made a two-part promise:

to transfer Ellis to a lower-security prison and to write a letter

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to the sentencing court to "create an opportunity to have the

sentencing judge consider reducing [the defendant's] sentence[] as

a reward for [his] service."

The warden did transfer Ellis and did write a letter, in

May 1994, to the federal judge in Massachusetts who had sentenced

Ellis. The letter fully disclosed the defendant's assistance to

the warden, noted that the defendant's "cooperation played a

significant role," and that the warden was "very grateful" to the

defendant.1 The sentencing judge received the letter, and the U.S.

Attorney at some point became aware of the letter. The U.S.

Attorney did not file a Rule 35(b) motion to reduce Ellis's

sentence. See Fed. R. Crim. P. 35(b)(2) ("Upon the government's

motion made more than one year after sentencing, the court may

reduce a sentence [for] the defendant's substantial assistance

. . . ."). The sentencing court made no effort sua sponte to

modify Ellis's sentence as a result of the letter.

In 2007, some thirteen years after the warden's letter,

Ellis filed a motion in his original criminal action in federal

district court in Massachusetts asserting that he was entitled to

have his sentence reduced. The original sentencing judge who had

1
Ellis worked with another inmate to provide the
assistance to the warden. The warden's letter regarding Ellis was
lost and is not in the record. The letter to the other inmate's
sentencing judge is in the record and both parties agree it "may be
inferred that" the warden's letter to Ellis's sentencing judge "was
similar in substance to his letter" to the other inmate's
sentencing judge. Def. Br. at 6; see also Gov't Br. at 7 n.6.

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received the warden's letter had died in the interim. Ellis's

affidavit accompanying the motion claimed that the warden intended

that his letter to the original sentencing judge would serve as a

"catalyst for a sentence reduction." Since the only way to reduce

Ellis's sentence was through a motion under Fed. R. Crim. P. 35(b),

Ellis claimed that the warden's alleged promise was, in essence,

one that bound the government to file a Rule 35(b) motion on his

behalf.

The district court denied Ellis's motion and ordered that

Ellis's criminal case be closed. The court, in a written ruling,

held that the evidence was that the warden had fulfilled his

promise to the defendant, and that even if the warden had promised

to file or ensure the filing of a Rule 35(b) motion (and there was

no evidence to suggest he had), the warden lacked the authority to

do so.

II.

We bypass the question of whether there was sufficient

evidence that the warden promised Ellis that he would see to the

filing of a Rule 35(b) motion. Even if the warden had made such a

promise, he was without authority to do so and the promise may not

be enforced.

Ellis's appeal depends entirely on his argument that for

purposes of Rule 35(b), the warden of a single federal prison is an

agent of the Attorney General and has actual authority acting on

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his own to bind the government2 to file a Rule 35(b) motion. This

is a pure issue of law, which we review de novo. United States v.

Flemmi, 225 F.3d 78, 84 (1st Cir. 2000). Ellis's contention is

wrong.

A. Statutory Scheme for Sentencing Reduction

Congress created two statutory avenues, both set out in

18 U.S.C. § 3582(c)(1), for reduction of an inmate's sentence on

grounds unrelated to his guilt or the appropriateness of the

underlying sentence of imprisonment. One avenue authorizes the

Director of the Bureau of Prisons to file a motion; the other

avenue authorizes the government as a party in a criminal case

before the courts to file a motion under Rule 35(b).

The first, § 3582(c)(1)(A), provides that a court, "upon

motion of the Director of the Bureau of Prisons, may reduce the

term of imprisonment . . . if it finds that (i) extraordinary and

compelling reasons warrant such a reduction." The Bureau of

Prisons informed Ellis in a letter from its General Counsel that

Ellis was not eligible for relief under this provision, as the

Bureau had chosen to limit its use of this avenue to situations

where a prisoner has severe medical problems. The defendant has

conceded that this was a matter of discretion for the Bureau, and

2
There is no claim that the warden had discussed the
subject with prosecutors or the Attorney General and had obtained
their agreement to file such a motion.

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agrees that he does not qualify for consideration under

§ 3582(c)(1)(A).

The other avenue, § 3582(c)(1)(B), allows a court to

"modify an imposed term of imprisonment to the extent otherwise

expressly permitted . . . by Rule 35 of the Federal Rules of

Criminal Procedure." We set forth the text of Rule 35 in the

footnote.3

3
Rule 35, entitled "Correcting or Reducing a Sentence,"
provides in relevant part:

(a) Correcting Clear Error. Within 7 days after
sentencing, the court may correct a sentence that
resulted from arithmetical, technical, or other clear
error.

(b) Reducing a Sentence for Substantial Assistance.
(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:
(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.

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 The recent history of Rule 35 demonstrates that the rule

reflects a set of conscious choices by Congress, choices which

determine the outcome of this case. Congress and the Rules

Committee explicitly made choices both as to the grounds under

which a modification of a sentence can be sought and as to who is

empowered to make such a motion.

Before 1987, Rule 35(b) allowed a court, on its own

initiative or by motion from either party, to reduce a sentence

within 120 days of the original sentence, but no modifications to

a sentence could be made thereafter. See Fed. R. Crim. P. 35(b)

(amended 1987). The previous version of the rule allowed

"essentially a plea for leniency . . . addressed to the sound

discretion of the district court." United States v. Ames, 743 F.2d

46, 48 (1st Cir. 1984); see also United States v. Angiulo, 57 F.3d

38, 41 n.3 (1st Cir. 1995) ("[F]ormer Rule 35(b) conferred

virtually unfettered discretion on sentencing courts."); United

States v. Distasio, 820 F.2d 20, 24 (1st Cir. 1987) (former Rule

35(b) "offers the sentencing court an opportunity to temper its

original sentence").

Beginning with Congress's passage of the Sentencing

Reform Act of 1984, Rule 35 has undergone a series of changes. See

Fed. R. Crim. P. 35 cmt. ("Credit(s)"). The discretion of the

district court has been severely restricted. A court now can

modify a sentence sua sponte only within seven days of the

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sentencing, and even then only to correct clear errors. See Fed.

R. Crim. P. 35(a). The defendant is no longer allowed to make

motions under Rule 35(b); only the government is empowered to do

so. Id. 35(b). In contrast to the general "plea for leniency"

under the old rule, the government now can request a modification

of the defendant's sentence only as a result of the defendant's

"substantial assistance." In the context of original sentencing,

this is a term of art. See U.S.S.G. § 5K1.1 (providing for

downward sentencing departures for "substantial assistance"). In

United States v. Alegria, 192 F.3d 179 (1st Cir. 1999), we noted

that "with regard to the meaning of 'substantial assistance,' Rule

35(b) and USSG § 5K1.1 are birds of a feather." Id. at 184.

In addition to the grounds for a Rule 35(b) motion having

been restricted, the absolute 120-day time limit has been replaced

with a graduated scheme of time limits. Within a year of

sentencing, a court may reduce the sentence on the government's

motion for any sort of substantial assistance, see Fed. R. Crim. P.

35(b)(1), but outside of a year of sentencing, the court may reduce

the sentence on the government's motion only if three criteria,

which generally amount to a discovery rule, are met, see id.

35(b)(2)(A)-(C).

We need not get into the question of whether Ellis's

assistance here was "substantial" because Ellis can prevail on his

claim only if he can show that there was a promise by the

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"government" as meant by Rule 35(b) to file a Rule 35(b) motion at

all. Filing such a motion resides in the government's discretion.

Courts have recognized, in both the section 5K1.1 and the Rule

35(b) contexts, that a breach of a promise to file a substantial

assistance motion, like other discretionary decisions by a

prosecutor, is reviewable. See Wade v. United States, 504 U.S.

181, 185 (1992); United States v. Marks, 244 F.3d 971, 975 (8th

Cir. 2001) (applying Wade to Rule 35(b)).

Ellis makes no claim that a prosecutor ever made a

promise to him, and so the case law described above is of no help

to him. Thus, Ellis needs to show that the discretionary power

given to the "government" in Rule 35(b) includes an individual

warden of a prison within the Bureau of Prisons where the defendant

has been confined. We conclude the term "government" in Rule 35(b)

does not mean a warden.

The Federal Rules "govern the procedure in all criminal

proceedings" in the federal courts, Fed. R. Crim. P. 1(a)(1),

proceedings in which the "government" is to be represented by its

prosecuting arm. While "government" itself is not defined in the

Rules, an "[a]ttorney for the government" is defined as "(A) the

Attorney General or an authorized assistant; (B) a United States

attorney or an authorized assistant; . . . and (D) any other

attorney authorized by law to conduct proceedings under these rules

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as a prosecutor." Id. 1(b)(1). The government does not proceed

pro se, but through an attorney for the government.

When Congress wanted to define the power of the Bureau of

Prisons with respect to sentencing reduction, it did so in the

"extraordinary and compelling reasons" provision of

§ 3582(c)(1)(A), the statute's other avenue for sentencing

reduction. Even then, it confined that power to the Director of

the Bureau of Prisons. Thus it is clear in light of

§ 3582(c)(1)(A) that a warden within the Bureau of Prisons is not

authorized to make a motion as the "government" under Rule 35(b).

B. Actual Authority by Necessary Implication

Since the warden may not file a Rule 35(b) motion, Ellis

argues that the warden nonetheless has authority to bind the U.S.

Attorney or the Attorney General to make a Rule 35(b) motion. Even

if the terms of Rule 35 did not preclude such an argument (and we

think they do), the argument would fail.

When a private party seeks performance of a promise

allegedly made by the government, it must show that the government

representative alleged to have entered into the agreement had

actual authority to bind the United States. Trauma Serv. Group v.

United States, 104 F.3d 1321, 1325 (Fed Cir. 1997). This is

because the government can be bound only by those with

authorization to do so. The Supreme Court has explained:

[A]nyone entering into an arrangement with the
Government takes the risk of having accurately

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 ascertained that he who purports to act for
the Government stays within the bounds of his
authority. The scope of this authority may be
explicitly defined by Congress or be limited
by delegated legislation, properly exercised
through the rule-making power. And this is so
even though, as here, the agent himself may
have been unaware of the limitations upon his
authority.

Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947); see also

Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1260 (Fed. Cir.

2005). As a result, Ellis's argument raises issues only of

"actual" authority, as "doctrines such as estoppel and apparent

authority are not available to bind the federal sovereign."

Flemmi, 225 F.3d at 85; see also H. Landau & Co. v. United States,

886 F.2d 322, 324 (Fed. Cir. 1989). Courts have applied these

principles of authority from the government contracting context to

claims of agreements between the government and criminal

defendants.4

4
These principles have been applied both to promises to
assist a criminal defendant in his underlying criminal proceeding,
see, e.g., Flemmi, 225 F.3d at 85; United States v. Fuzer, 18 F.3d
517, 520-21 (7th Cir. 1994), and to promises to assist the
defendant in other proceedings involving the government, see, e.g.,
United States v. Crobarger, 158 F. App'x 100, 105 (10th Cir. 2005)
(alleged promise made by a prosecutor in one district to file a
Rule 35(b) motion in a proceeding in another district); United
States v. Igbonwa, 120 F.3d 437, 443 (3d Cir. 1997) (alleged
promise by a prosecutor to bind the Immigration and Naturalization
Service to withhold deportation).
Courts have also used contract principles more generally
to analyze claims, as here, in which the alleged promise was made
as a reward for assistance unrelated to the defendant's original
conviction. See United States v. McDowell, 149 F. App'x 508, 512
(7th Cir. 2005); United States v. Pinter, 971 F.2d 554, 557 (10th
Cir. 1992).

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 "Actual authority may be conferred either expressly or by

necessary implication." Flemmi, 225 F.3d at 85; see also H. Landau

& Co., 886 F.2d at 324. It is clear that the warden does not have

express authority, nor does he have actual authority by necessary

implication.

In Flemmi, where the defendant claimed a breach of a

cooperation agreement, this court assumed arguendo, in the

defendant's favor, that civil agency principles of implicit actual

authority applied to the federal government in the context of a

criminal proceeding. Flemmi, 225 F.3d at 85. We do the same here.

In the civil context, an agent's designated authority "to conduct

a transaction includes authority to do acts which are incidental to

it, usually accompany it, or are reasonably necessary to accomplish

it." Restatement (Second) of Agency § 35; accord ICC v. Holmes

Transp., Inc., 983 F.2d 1122, 1129 n.10 (1st Cir. 1993).

Congress has delegated to the Bureau of Prisons, under

the direction of the Attorney General, "the management and

regulation" of all correctional institutions, 18 U.S.C.

§ 4042(a)(1), including the "protection . . . of all persons

charged with or convicted of offenses against the United States,"

id. § 4042(a)(3). The defendant's argument that the warden has

actual authority by necessary implication to promise to file a Rule

35(b) motion is premised on three regulations promulgated pursuant

to this statutory authority: one authorizing the Director of the

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Bureau of Prisons to ensure the proper functioning of the prison,

including safety, 28 C.F.R. § 0.95; one designating the warden as

the "chief executive officer" of the prison (and thus establishing

the warden as the designated agent of the Director of the Bureau of

Prisons), id. § 500.1; and one authorizing the staff of the prison

to seize contraband, id. § 553.13. The defendant's argument is

wrong both as to the test to be applied for actual authority by

necessary implication and as to the result of applying the test.

"The test is not whether such a power might from time to

time prove advantageous, but, rather, whether such a power usually

accompanies, is integral to, or is reasonably necessary for the due

performance of the task." Flemmi, 225 F.3d at 86; see also Thomas

v. INS, 35 F.3d 1332, 1350 (9th Cir. 1994) ("Authority [to bind the

government] 'is generally implied when such authority is considered

to be an integral part of the duties assigned to a government

employee.'" (quoting H. Landau & Co., 886 F.2d at 324)); United

States v. Crobarger, 158 F. App'x 100, 105 (10th Cir. 2005).

Further, it is an objective test. See Fed. Crop Ins.

Corp., 332 U.S. at 384 ("[T]he agent himself may have been unaware

of the limitations upon his authority."). While a warden may be

responsible for prison safety, that responsibility does not by

necessary implication carry with it the power to reward helpful

inmates with sentence reductions by the filing of a motion under

Rule 35(b). A warden has many other carrots to induce cooperation

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from inmates and to reward cooperative inmates, including notifying

the U.S. Attorney for consideration of a Rule 35(b) motion based on

the inmate's cooperation; recommending transfer of the inmate to

another facility, as the warden did here; perhaps improving

individual confinement conditions; and granting a lump sum award of

"extra good time" credit to an inmate for an "act which protects

the lives of staff or inmates," 28 C.F.R. § 523.16(c).

Set against the defendant's desired inferences from the

general authority given to wardens is the authorization given to

the U.S. Attorney in Rule 35(b) to file such motions. There is no

doubt that the authorization to the U.S. Attorney trumps any

argument of actual authority by necessary implication. See Flemmi,

225 F.3d at 85 (noting that some courts have recognized that "when

the authority to do a particular task can be characterized as

incidental to the duties assigned to two government

agencies, . . . a specific source of authority to do a particular

task trumps a more general source of authority"); see also United

States v. Igbonwa, 120 F.3d 437, 443-44 (3d Cir. 1997); San Pedro

v. United States, 79 F.3d 1065, 1070-71 (11th Cir. 1996).

We have considered Ellis's other arguments and they are

without merit.5

5
Based on our resolution of the claim, we need not address
the government's argument that the claim should be treated as a
successive petition for collateral review under 28 U.S.C. § 2255.

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Affirmed.

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