FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10147
Plaintiff-Appellee,
D.C. No.
v. 3:95-cr-00319- MMC-7
JOHN DOE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Maxine Chesney, District Judge, Presiding
Submitted March 15, 2016*
San Francisco, California
Filed August 9, 2016
Before: M. Margaret McKeown, Kim McLane Wardlaw,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge McKeown
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. DOE
SUMMARY**
Criminal Law
The panel held that in granting a motion under Federal
Rule of Criminal Procedure 35(b) for a sentence reduction on
the basis of substantial post-sentencing assistance to the
government, the district court did not err by failing to rule on
controverted factual issues in accord with Rule 32(i)(3).
The panel held that Rule 35 does not incorporate Rule
32’s requirement that the court make findings on disputed or
controverted matters. Rule 32 pertains to sentencing, and a
Rule 35(b) proceeding is not the equivalent of a de novo
sentencing.
COUNSEL
Walter K. Pyle, Berkeley, California, for Defendant-
Appellant.
J. Douglas Wilson, Assistant United States Attorney; Barbara
J. Valliere, Chief, Appellate Division; Melinda Haag, United
States Attorney; United States Attorney’s Office, San
Francisco, California; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DOE 3
OPINION
McKEOWN, Circuit Judge:
This appeal raises a novel legal issue: When considering
a motion to reduce a sentence under Federal Rule of Criminal
Procedure 35(b), must a court rule on controverted issues in
accord with Federal Rule of Criminal Procedure 32(i)(3)?
In 2000, John Doe pleaded guilty to soliciting the murders
of two of his associates. In a sworn plea agreement, Doe
acknowledged that he had induced two co-conspirators to
commit the murders, and the court sentenced him to forty
years in jail. After sentencing, Doe gave the government
information that enabled it to obtain guilty pleas from his co-
conspirators. During discussions with the government, Doe
backed away from the factual basis for his guilty plea,
alternately claiming that he had nothing to do with the
murders or that he did not orchestrate the murders.
Recognizing Doe’s contribution, the government filed a
motion under Rule 35(b), which allows a court to reduce a
sentence if a defendant provides “substantial” post-sentencing
assistance to the government. During the Rule 35(b)
proceedings, both parties stipulated to numerous documents
in the record. One of the government’s documents noted that
while Doe admitted to providing an alibi for a co-conspirator,
he denied soliciting the murders.
The district court granted the motion and reduced Doe’s
sentence by six years, basing the extent of the reduction in
large part on the “value” of Doe’s substantial assistance to the
government. The court noted that the co-conspirators did not
mastermind the murders and that, although Doe didn’t
4 UNITED STATES V. DOE
personally carry out the murders, it was likely they would not
have occurred without his involvement since he thought of
the plan. The court also explained that Doe’s sentence had to
be considerably longer than the sentences of his co-
conspirators, who acted at his instigation.
The district court did not rule explicitly on which version
of the facts—the admissions in Doe’s plea agreement or the
various accounts Doe later provided to the government—was
accurate when it granted the government’s Rule 35(b)
motion. Doe did not object to the court’s evaluation of the
evidence during the Rule 35(b) hearing. He now argues that
the district court committed plain error by failing to explicitly
determine the true facts under Rule 32(i)(3).
We conclude that there was no error, let alone plain error,
as Rule 35 does not incorporate Rule 32’s requirement that
the court make findings on disputed or controverted matters.
ANALYSIS
We have jurisdiction over a Rule 35(b) order if the
defendant alleges that the sentence reduction “was imposed
in violation of law,” 18 U.S.C. § 3742(a)(1), but not over “the
[district] court’s exercise of its discretion in choosing the
amount of the sentence reduction awarded.” United States v.
Tadio, 663 F.3d 1042, 1045 (9th Cir. 2011). Because Doe’s
arguments target the legality of the district court’s Rule 35(b)
order, not the court’s exercise of its discretion as to the
degree of reduction, we have jurisdiction under § 3742.
The crux of this appeal rests on Doe’s argument
concerning the intersection of two Federal Rules of Criminal
Procedure. The first, Rule 35(b)(1), allows a court to reduce
UNITED STATES V. DOE 5
a defendant’s sentence “[u]pon the government’s motion
made within one year of sentencing . . . if the defendant, after
sentencing, provided substantial assistance in investigating or
prosecuting another person.” Fed. R. Crim. P. 35(b)(1). The
second, Rule 32(i)(3)(B), states that a court “at sentencing”:
must—for any disputed portion of the
presentence report or other controverted
matter—rule on the dispute or determine that
a ruling is unnecessary either because the
matter will not affect sentencing, or because
the court will not consider the matter in
sentencing.
According to Doe, Rule 32’s requirement that
district courts address any “controverted
matter” at sentencing applies with equal force
to Rule 35(b) proceedings. Thus, he argues,
the district court plainly erred by failing to
determine whether Doe in fact solicited the
murders.
Unfortunately for Doe, his theory does not hold water.
We start with the text of the two rules. As the title of Rule 32
underscores, subsection (i)(3)’s fact-finding mandate applies
to “[s]entencing and [j]udgment,” see Begay v. United States,
553 U.S. 137, 146 (2008) (looking to title of statute to
interpret statutory language), whereas Rule 35(b) comes into
play only if the defendant provides substantial assistance
“after sentencing.” By their plain terms, Rules 32 and 35(b)
apply to different parts of the post-conviction process. Rule
32’s requirements pertain to sentencing, separately from the
6 UNITED STATES V. DOE
time Rule 35(b) kicks in.1 In other words, the district court
did not plainly err by failing to rule on disputed facts when it
ruled on the government’s Rule 35(b) motion because the
parties were not “at sentencing.”2
This interpretation accords with our conclusion in Tadio
that a Rule 35(b) proceeding “is not the equivalent of a de
novo sentencing.” 663 F.3d at 1055. Other circuits similarly
recognize that a Rule 35(b) order “modifies [a defendant’s]
existing sentence rather than imposes an entirely new
sentence,” United States v. Hardman, 778 F.3d 896, 901
(11th Cir. 2014), and acknowledge that there are key
“procedural differences between original sentencing
proceedings and modification proceedings,” United States v.
Lightfoot, 724 F.3d 593, 597 (5th Cir. 2013). The Supreme
Court, too, has characterized modification proceedings in an
analogous situation as distinct from “plenary resentencing
1
Of course, the parties can be “at sentencing” if an appellate court
vacates the original sentence and remands for re-sentencing. That is not
the procedural posture of this case.
2
Some circuits, including ours, “have allowed violations of Rule 32 to
be addressed in timely Rule 35 motions.” United States v. Angiulo,
57 F.3d 38, 41 (1st Cir. 1995) (collecting cases); see also United States v.
Roberson, 896 F.2d 388, 388 (9th Cir. 1990), amended on reh’g, 917 F.2d
1158 (9th Cir. 1990) (holding that Rule 32 claim that presentence report
was inaccurate could be raised in Rule 35 motion). But as explained in
Angiulo, “[t]his avenue of review . . . is properly seen as founded on
former Rule 35(a), . . . [which] permits a district court to ‘correct a
sentence imposed in an illegal manner.’” 57 F.3d at 41 (quoting former
Rule 35(a)); see also Roberson, 896 F.2d at 388 (applicable Rule 35
motion was for “correction of illegal sentence”). Doe does not argue that
his underlying sentence was “imposed in an illegal manner”; instead, he
argues that the subsequent Rule 35(b) proceedings were flawed. Thus,
Roberson and the line of cases cited in Angiulo are not applicable.
UNITED STATES V. DOE 7
proceedings.” Dillon v. United States, 560 U.S. 817, 827
(2010) (discussing modification proceedings under 18 U.S.C.
§ 3582(c)(2), which allows courts to modify a sentence based
on a Guidelines range subsequently lowered by the
Sentencing Commission). Indeed, Doe’s counsel repeatedly
emphasized the distinction between sentencing and a post-
sentence reduction, stating during the Rule 35(b) hearing that
a Rule 35 hearing is not a plenary resentencing, adding that
the court is not going to sentence Doe in any genuine manner,
and concluding that the parties were not before the court for
a sentencing.
Apart from the text of the rules, there are other important
differences between a Rule 35(b) proceeding and sentencing
under Rule 32. Significantly, the availability of a Rule 35(b)
reduction is contingent on the discretion of the government,
whereas all criminal defendants go through sentencing
proceedings under Rule 32. See Pepper v. United States,
562 U.S. 476, 502 n.15 (2011) (“[A] defendant with nothing
to offer the Government can gain no benefit from Rule
35(b).”). Unlike in sentencing proceedings, district courts are
permitted, but not required, to consider the sentencing factors
outlined in 18 U.S.C. § 3553(a) when ruling on a Rule 35(b)
motion. See Tadio, 663 F.3d at 1052. Another key
distinction is that defendants are constitutionally entitled to
be present at sentencing, see Brewer v. Raines, 670 F.2d 117,
118–19 (9th Cir. 1982), but need not be present when “[t]he
proceeding involves the correction or reduction of a sentence
under Rule 35 or 18 U.S.C. § 3582(c),” Fed. R. Crim. P.
43(b)(4).
By asking the district court to choose between the
legitimacy of the facts set forth in his plea versus his later-
proffered testimony, Doe attempts to do indirectly what he is
8 UNITED STATES V. DOE
precluded from doing directly: challenge the extent of the
district court’s sentence reduction. And this, of course, is an
argument over which we would lack jurisdiction. See Tadio,
663 F.3d at 1045 (noting that we lack jurisdiction to review
the extent of the ultimate reduction in sentence on a Rule
35(b) motion).
The district court founded its sentence reduction on the
“value” of Doe’s information that led to the conviction of his
co-conspirators after evaluating all of the documents and
statements provided by the parties and considering the
§ 3553(a) factors. The court had no obligation under either
Rule 32 or Rule 35 to make specific findings regarding
factual contradictions spawned by Doe himself.3
AFFIRMED.
3
We also reject Doe’s argument that judicial estoppel prevents a court
from taking inconsistent positions; judicial estoppel is a doctrine that
applies to the parties, not the court. New Hampshire v. Maine, 532 U.S.
742, 750–51 (2001). In any event, we disagree with Doe’s premise that
the court acted inconsistently.