United States v. Tadio

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10144
Plaintiff-Appellee,
v.  D.C. No.
1:07-cr-00486-HG-1
DENNIS TADIO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, Senior District Judge, Presiding

Argued and Submitted
February 15, 2011—Honolulu, Hawaii

Filed November 21, 2011

Before: A. Wallace Tashima, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge William A. Fletcher

20257
20260 UNITED STATES v. TADIO

COUNSEL

Harlan Yoshito Kimura, Honolulu, Hawaii, for the appellant.

Thomas J. Brady, OFFICE OF THE UNITED STATES
ATTORNEY, Honolulu, Hawaii, for the appellee.

OPINION

W. FLETCHER, Circuit Judge:

Federal Rule of Criminal Procedure 35(b) authorizes a dis-
trict court, on the government’s motion, to reduce a defen-
dant’s sentence “if the defendant, after sentencing, provided
substantial assistance in investigating or prosecuting another
person.” The question in this case is whether a district court
may consider factors other than a defendant’s substantial
assistance in determining the amount of a Rule 35(b) sentence
reduction. We hold that once a district court determines that
a defendant has provided substantial assistance to the govern-
 UNITED STATES v. TADIO 20261
ment, the court may consider factors other than assistance,
including those listed in 18 U.S.C. § 3553(a), in order to
ensure that the sentence ultimately imposed accords with the
purposes of sentencing that Congress has articulated. See
§ 3553(a)(2). The sentence imposed must be related to the
degree of assistance rendered, but a district court may con-
sider non-assistance factors in awarding a reduction, whether
that reduction is greater than, less than, or equal to the reduc-
tion that a defendant’s assistance, considered alone, would
warrant.

Here, after considering federal prisoner Dennis Tadio’s
offense conduct and criminal history, the district court granted
a sentence reduction of 24 months, which is what the govern-
ment had requested based on Tadio’s assistance. Tadio
appeals, contending first that the district court erred by con-
sidering non-assistance factors when it decided on the length
of the sentence reduction, and second that the district court
assigned too low a value to the assistance he provided. The
government contends that the district court did not err in con-
sidering the non-assistance factors when it decided whether to
grant a sentence reduction greater than what Tadio’s assis-
tance, considered alone, warranted. The government also
argues that if the district court applied the appropriate legal
standard under Rule 35(b), we lack jurisdiction to review the
court’s exercise of discretion in choosing the length of the
sentence reduction. We agree with the government and the
district court. Because the district court applied the correct
legal standard in this case, we affirm its consideration of non-
assistance factors and dismiss Tadio’s challenge to the length
of the sentence reduction.

I. Factual and Procedural Background

In November 2007, Dennis Tadio pled guilty to one count
of witness intimidation, in violation of 18 U.S.C.
§ 1512(b)(1), after threatening a witness who was to testify in
the federal murder prosecution of some of Tadio’s criminal
20262 UNITED STATES v. TADIO
associates. The U.S. Probation Officer prepared Tadio’s Pre-
sentence Investigation Report (“PSR”) in January 2008. The
PSR calculated an Offense Level of 27. After assessing crimi-
nal history points for state convictions for second-degree
assault, prohibited possession of a firearm, unauthorized con-
trol of a propelled vehicle, second-degree terroristic threaten-
ing, and first-degree criminal trespass, the PSR placed Tadio
in Criminal History Category V. That combination yielded a
Guidelines range of 120-150 months. Because the statutory
maximum sentence for witness intimidation was then 10
years, 18 U.S.C. § 1512(b) (2000) (amended in 2002 and
2008), Tadio’s advisory Guidelines “range” became 120
months. See U.S.S.G. § 5G1.1(c)(1).

After his arrest, Tadio assisted the government in prosecut-
ing several of his former criminal associates. To reward
Tadio’s cooperation, the government moved prior to sentenc-
ing for a downward departure to a Guidelines range of 70-87
months. See U.S.S.G. § 5K1.1. In March 2008, the district
court granted the government’s motion and sentenced Tadio
to 87 months.

Tadio continued to cooperate after sentencing. He provided
credible trial testimony that resulted in several convictions.
The government acknowledges that Tadio’s testimony was
given “at great risk to his own personal safety.” While incar-
cerated at federal facilities in California and Hawaii, Tadio
received both direct and indirect threats of physical violence.
To reward Tadio’s continued cooperation, the government
moved in January 2010, pursuant to Fed. R. Crim. P.
35(b)(2)(B), to reduce Tadio’s sentence by an additional 24
months. Tadio countered by proposing a reduction of 48
months, arguing that the government’s Rule 35(b) motion
failed adequately to capture both the significance of his assis-
tance and the danger he had courted by cooperating. Tadio
also asserted that other people who cooperated in the prosecu-
tion of his former criminal associates “received far greater
 UNITED STATES v. TADIO 20263
reductions in their sentences even though their testimonies
were not as valuable to the Government.”

The district court granted the government’s motion and
reduced Tadio’s sentence by 24 months, resulting in a 63-
month sentence. The court explained:

[T]he Defendant substantially assisted the Govern-
ment in the investigation and prosecution of criminal
activity. A reduction of Defendant’s sentence pursu-
ant to Rule 35(b)(2)(B) is appropriate. Based on the
nature of Defendant’s cooperation, the Court grants
a sentence reduction of 24 months. Given the cir-
cumstances of Defendant’s criminal conduct, and
Defendant’s prior criminal history, the Court finds a
reduction of 24 months to be consistent with the
Sentencing Guidelines and the Sentencing Commis-
sion’s policy statements.

Tadio moved for reconsideration, arguing that the district
court erred by considering factors other than his substantial
assistance — namely, “the circumstances of [his] criminal
conduct, and [his] criminal history” — when it determined the
extent of the sentence reduction. Relying on United States v.
Doe, 351 F.3d 929, 933 (9th Cir. 2003), the court concluded
that “Tadio’s criminal conduct, as well as his prior criminal
history and previous sentencing reductions” were “relevant
factors that may be weighed when considering a Rule 35(b)
motion.” The court denied Tadio’s motion for reconsideration
and left his 63-month sentence in place.

Tadio timely appealed.

II. Standard of Review

We determine the existence of our own jurisdiction de
novo. Saavedra-Figueroa v. Holder, 625 F.3d 621, 623 (9th
Cir. 2010). We review the legal question whether a particular
20264 UNITED STATES v. TADIO
factor may be considered in deciding a Rule 35(b) motion de
novo. Doe, 351 F.3d at 932.

III. Discussion

A. Appellate Jurisdiction

We first consider the government’s argument that we lack
appellate jurisdiction. “[T]he exclusive avenue of appeal of
rulings on Rule 35(b) motions is 18 U.S.C. § 3742.” United
States v. Montalvo, 581 F.3d 1147, 1150 (9th Cir. 2009)
(quoting United States v. Arishi, 54 F.3d 596, 599 (9th Cir.
1995)). Section 3742(a)(1) provides that a defendant may
obtain review of a sentence that “was imposed in violation of
law.” In Doe, we held that § 3742(a)(1) conferred jurisdiction
to review the denial of a Rule 35(b) motion where the defen-
dant had argued “that his sentence was imposed in violation
of law because the district court considered factors other than
his substantial assistance to the government.” 351 F.3d at 932.
Tadio advances the same argument. We conclude, as we did
in Doe, that jurisdiction is proper under § 3742(a)(1). See
also, e.g., United States v. Grant, 636 F.3d 803, 809 (6th Cir.
2011) (en banc) (jurisdiction proper under § 3742(a)(1) where
defendant argues 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”); United States v. Chap-
man, 532 F.3d 625, 628-29 (7th Cir. 2008); United States v.
Manella, 86 F.3d 201, 202-03 (11th Cir. 1996).

We agree with the government that if the district court’s
consideration of factors other than Tadio’s substantial assis-
tance was proper, such that the sentence imposed was not “in
violation of law,” we lack jurisdiction to review the court’s
exercise of its discretion in choosing the amount of the sen-
tence reduction awarded. See United States v. Pedroza, 355
F.3d 1189, 1190-91 (9th Cir. 2004) (per curiam) (no jurisdic-
tion under § 3742 to review defendant’s claim that district
court “abused its discretion by failing to reduce his offense
 UNITED STATES v. TADIO 20265
level, and consequently his sentence, to a degree that he
believes properly reflects the assistance he provided to the
government”); Doe, 351 F.3d at 932; Arishi, 54 F.3d at 597-
98. We therefore dismiss Tadio’s challenge to the amount of
sentence reduction that his assistance warranted and confine
our review to Tadio’s argument that the district court, by con-
sidering factors other than his substantial assistance, imposed
a sentence “in violation of law.” See, e.g., Chapman, 532 F.3d
at 628.

B. Factors that May Be Considered in Deciding a Rule
35(b) Motion

[1] A district court “generally ‘may not modify a term of
imprisonment once it has been imposed.’ ” Dillon v. United
States, 130 S. Ct. 2683, 2687 (2010) (quoting 18 U.S.C.
§ 3582(c)). However, Congress has provided several excep-
tions to this general rule. One exception is that a district 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). Rule 35(b)(1) provides that “[u]pon the gov-
ernment’s motion made within one year of sentencing, the
court may reduce a sentence if the defendant, after sentencing,
provided substantial assistance in investigating another per-
son.” Rule 35(b)(2)(B), the subsection under which the dis-
trict court reduced Tadio’s sentence, provides that “[u]pon the
government’s motion made more than one year after sentenc-
ing, the court may reduce a sentence if the defendant’s sub-
stantial assistance involved . . . 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.”

Tadio argues that the district court improperly weighed his
offense conduct, his prior criminal history, and the § 5K1.1
departure he received at his initial sentencing in deciding to
limit his sentence reduction to 24 months. In Tadio’s view,
20266 UNITED STATES v. TADIO
Rule 35(b) does not allow a court “to rely upon the 18 U.S.C.
§ 3553(a) sentencing factors a second time in determining the
amount of reduction pursuant to the Rule 35(b) motion, the
first time being at the original sentencing hearing.” The gov-
ernment responds that a district court cannot “rule in a vac-
uum, absent critical factors,” and that Rule 35(b) “does not
prohibit the consideration of [the 18 U.S.C.] § 3553(a) factors
in deciding to what extent a defendant’s sentence should be
reduced for substantial assistance.” We agree with the govern-
ment.

A number of courts have considered the question whether
factors other than a defendant’s substantial assistance, includ-
ing the 18 U.S.C. § 3553(a) factors, may be considered in
deciding a Rule 35(b) motion, and, if so, how those factors
may be used. See, e.g., United States v. Clawson, 650 F.3d
530 (4th Cir. 2011); United States v. Grant, 636 F.3d 803 (6th
Cir. 2011) (en banc); United States v. Shelby, 584 F.3d 743
(7th Cir. 2009); United States v. Poland, 562 F.3d 35 (1st Cir.
2009), aff’g 533 F. Supp. 2d 199 (D. Me. 2008); United States
v. Chapman, 532 F.3d 625 (7th Cir. 2008); United States v.
Manella, 86 F.3d 201 (11th Cir. 1996); United States v. Park,
533 F. Supp. 2d 474 (S.D.N.Y. 2008). The question has
proved surprisingly difficult.

Courts all agree that substantial assistance is a prerequisite
to Rule 35(b) relief. See, e.g., Clawson, 650 F.3d at 537
(“[W]hen deciding whether to grant a Rule 35(b) motion, a
district court may not consider any factor other than the
defendant’s substantial assistance to the government.”);
Grant, 636 F.3d at 816 (“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.”);
Park, 533 F. Supp. 2d at 476 (“ ‘[S]ubstantial assistance’ is
the only event that can trigger the court’s authority to reduce
the sentence.”).
 UNITED STATES v. TADIO 20267
However, courts do not agree on the proper role played by
non-assistance factors in determining the extent of a sentence
reduction once a defendant has satisfied the substantial assis-
tance criterion of Rule 35(b). The Eleventh Circuit in Manella
held that a district court may apply non-assistance factors to
award a lesser sentence reduction than a defendant’s assis-
tance alone warrants or to award no reduction at all, but may
not apply these factors in deciding whether to order a greater
reduction. Manella, 86 F.3d at 204. That is, under Manella the
non-assistance factors function as a one-way ratchet. More
recently, over a dissent, the Seventh Circuit in Shelby held the
same thing. 584 F.3d at 745, 748-49; see also Chapman, 532
F.3d at 629-30. The Sixth Circuit sitting en banc in Grant
recently held, over several dissents, that “the § 3553(a) factors
have no role in Rule 35(b) proceedings” and that any Rule
35(b) reduction “may not exceed the value of the assistance.”
Grant, 636 F.3d at 816. But the court in Grant held that a dis-
trict court may consider non-assistance factors similar to those
listed in § 3553(a) — for example, a defendant’s relative cul-
pability, his “capacity for abiding by the law,” and the degree
to which a defendant poses a “threat to society” — to award
a lesser reduction than the defendant’s assistance alone would
warrant. Id. at 817. As in Manella and Shelby, these non-
assistance factors operate as a one-way ratchet. The First Cir-
cuit has held that a Rule 35(b) sentence reduction “must
reflect only the assistance provided,” but its holding was lim-
ited to “re-sentence adjustments that go below the statutory
mandatory minimum.” Poland, 562 F.3d at 41 (citing 18
U.S.C. § 3553(e)). The Fourth Circuit has noted disagreement
among courts but has reserved the question. Clawson, 650
F.3d at 532 n.1. Then-District Judge Chin, who now sits on
the Second Circuit, has held that “once the court determines
that the defendant has provided substantial assistance, the
court may consider other factors as well — including all the
[§] 3553(a) factors — in deciding the extent to which the
defendant’s sentence will be reduced.” Park, 533 F. Supp. 2d
at 479. He rejected as “not logical” the position “that a district
court may consider § 3553(a) factors when they militate
20268 UNITED STATES v. TADIO
against a larger reduction but not when they favor a larger
reduction.” Id. at 478 (emphasis in original).

[2] We agree with the unanimous view of the federal
courts that a district court may not grant a Rule 35(b) motion
unless a defendant has provided substantial assistance to the
government. And we agree with those courts that allow the
district court to consider the full range of factors referenced
in § 3553(a) when determining the amount to reduce a sen-
tence under a Rule 35(b) motion. However, unlike courts that
have held that non-assistance factors operate as a one-way
ratchet, we see no basis for that limitation. Instead, we adopt
a symmetrical rule, under which the district court may con-
sider the non-assistance factors listed in § 3553(a) when
determining how much to reduce a defendant’s sentence, irre-
spective of the direction in which those factors cut.

The first step of the Rule 35(b) analysis is to determine
whether the defendant has offered substantial assistance suffi-
cient to trigger a district court’s authority to reduce a sen-
tence. See, e.g., Pepper v. United States, 131 S. Ct. 1229,
1248 n.15 (2011) (“[A] defendant with nothing to offer the
Government can gain no benefit from Rule 35(b).”); Clawson,
650 F.3d at 537 (reversing grant of Rule 35(b) motion where
district court “made no finding regarding [the defendant’s]
assistance to the government” but instead granted motion
based “solely on its findings that [the defendant] would not
receive adequate medical care in prison, and that he did not
pose a danger to the community”). At this step, the district
court does not consider the facts of the defendant’s crime, the
defendant’s personal characteristics, or any other § 3553(a)
factors.

[3] If a defendant has provided substantial assistance, the
court proceeds to the second step and determines the extent to
which the defendant’s sentence should be reduced. At this
step, the non-assistance factors of § 3553(a) properly guide a
district court’s exercise of its discretion in determining the
 UNITED STATES v. TADIO 20269
extent of the reduction. Every court that has addressed the
question has concluded that a court may consider at least
some non-assistance factors at this step. Grant, 636 F.3d at
816-17; Shelby, 584 F.3d at 748-49; Chapman, 532 F.3d at
629-30; Manella, 86 F.3d at 204; Park, 533 F. Supp. 2d at
476. But cf. Poland, 562 F.3d at 41 (limiting its assistance-
only holding to Rule 35(b) sentence reductions “that go below
the statutory mandatory minimum”). The Seventh Circuit has
stated, “[T]he judge must reserve the right to condition the
grant of a Rule 35(b) motion, in whole or in part, on its con-
sistency with the statutory sentencing factors, in order to
make sure that the reduced sentence is not unjust.” Shelby,
584 F.3d at 748. The court explained:

The judge cannot impose an illegal sentence. He
therefore cannot impose a sentence that is inconsis-
tent with the statutory sentencing factors. If the gov-
ernment said, “although the defendant is a mass
murderer sentenced to life in prison and has served
only two years of his sentence, he has given us such
great information that we recommend that his sen-
tence be reduced to time served,” the judge would
not be bound.

Id.; compare with 18 U.S.C. § 3553(a)(2)(A) (sentencing
court must consider “the need for the sentence imposed [ ] to
reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense”).
Although it was applying a more limited list of non-assistance
factors, the Sixth Circuit similarly described the importance
of assessing a sentence reduction in the context of pertinent
facts about the offense and the offender. See Grant, 636 F.3d
at 817 (“[T]he extent of the reduction might be tempered by
other factors affecting the valuation. . . . For example, a dis-
trict court might recognize that a defendant’s assistance is of
extremely high value but also recognize that fully valuing the
cooperation would give the defendant a sentence much lower
than co-defendants who were far less culpable.”); compare
20270 UNITED STATES v. TADIO
with 18 U.S.C. § 3553(a)(6) (sentencing court must consider
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct”).

[4] We agree with those courts that have held that all of the
factors of § 3553(a) may be considered, to the degree they are
relevant, in determining the extent of a sentence reduction
under Rule 35(a). We have already disagreed with the Sixth
Circuit’s conclusion in Grant that only a few non-assistance
factors may be considered. See Doe, 351 F.3d at 933 (uphold-
ing the district court’s consideration of § 3553(a) factors
when it denied a Rule 35(b) reduction despite the defendant’s
substantial assistance). As a practical matter, it may turn out
that the difference between the list of § 3553(a) factors and
the list of factors enumerated in Grant is not all that great. But
to the degree that there is a practical difference, we believe
that there is no reason, once non-assistance factors are
allowed to influence the district court’s decision, to restrict
those non-assistance factors to a shorter list than Congress has
indicated in § 3553(a) are relevant to sentencing decisions.

A related question is whether the non-assistance factors that
may be used when granting a Rule 35(b) motion are limited
to those that support a lesser rather than a greater sentence
reduction. We part company with those courts that have so
limited the district court’s consideration of non-assistance fac-
tors, thereby creating a one-way ratchet.

In determining whether and how a district court may con-
sider § 3553(a) factors when assessing the amount of a Rule
35(b) sentence reduction, we begin with the text of Rule
35(b). See United States v. Fort, 472 F.3d 1106, 1110 (9th
Cir. 2007) (“[A]n appellate court must look first to the plain
meaning of the text when interpreting a Federal Rule of Crim-
inal Procedure[.]”) (citation omitted). Rule 35(b)(1) now pro-
vides that “the court may reduce a sentence if the defendant,
after sentencing, provided substantial assistance in investigat-
 UNITED STATES v. TADIO 20271
ing or prosecuting another person.” Rule 35(b)(2) provides
similarly that “the court may reduce a sentence if the defen-
dant’s substantial assistance” complies with certain criteria.

[5] When originally adopted as part of the Sentencing
Reform Act of 1984, Rule 35(b) provided:

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, sub-
stantial assistance in the investigation or prosecution
of another person who has committed an offense, to
the extent that such assistance is a factor in applica-
ble guidelines or policy statements issued by the
Sentencing Commission . . . .

Sentencing Reform Act of 1984, Pub. Law No. 98-473,
§ 215(b), 98 Stat. 1837, 2015-16 (1984) (emphasis added). In
2002, an amendment to Rule 35(b) removed the language pro-
viding that the reduction of a defendant’s sentence within one
year of the entry of the original sentence should “reflect” a
defendant’s substantial assistance. The new text provides only
that the district court may reduce a sentence “if” a defendant
has provided substantial assistance. See Fed. R. Crim. P.
35(b)(1) (previously Rule 35(b)). The Advisory Committee
Note states that the change was “intended to be stylistic only.”
Adv. Comm. Note, 2002 Amendments to Fed. R. Crim. P. 35.
The 2002 amendments also added a new subsection to Rule
35(b) clarifying the circumstances under which a court could
reduce a sentence for substantial assistance provided more
than one year after the original sentencing. See id. (discussing
Rule 35(b)(2)). This is the subsection under which Tadio
moved for a reduction in sentence. Like Rule 35(b)(1), Rule
35(b)(2) provides only that the district court may reduce the
original sentence “if” the defendant has provided substantial
assistance. Because Rule 35(b)(2) was a new subsection, there
was never an earlier version that contained the “reflect” lan-
guage of the original Rule 35(b).
20272 UNITED STATES v. TADIO
There are three possible readings of the language of the
original Rule 35(b). The first is that the “reflect” language
means that the amount of the sentence reduction under the
rule must be based only on the amount of assistance provided.
This is how parallel language in § 3553(e), dealing with
reductions in mandatory minimum sentences, has been read
by the courts of appeals. See § 3553(e) (“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.”); United States v. Auld, 321 F.3d 861,
867 (9th Cir. 2003); United States v. Ahlers, 305 F.3d 54, 60
(1st Cir. 2002); United States v. Rabins, 63 F.3d 721, 727 (8th
Cir. 1995). On this reading, “reflect” means something like
“precisely calibrated to the degree of.” However, outside of
the mandatory minimum context, all courts to consider the
question have held that Rule 35(b) allows a district court to
consider non-assistance factors, at least to some extent, in
determining the amount of a sentence reduction triggered by
a defendant’s substantial assistance.

The second possible reading is that the “reflect” language
means that a district court may limit the amount of a sentence
reduction based on the amount of assistance by taking into
account non-assistance factors relevant to the defendant.
Under this reading, the district court may consider non-
assistance factors in deciding whether to grant a sentence
reduction equal to or less than the amount warranted by the
defendant’s assistance considered alone. In other words,
under this reading, “reflect” means to “take into account.” But
also, under this reading, the district court may never grant a
sentence reduction in an amount greater than that warranted
by the defendant’s assistance, even if non-assistance factors
might have led the district court to grant a greater reduction.
Although this reading results in an odd, asymmetrical applica-
tion of Rule 35(b), in which non-assistance factors operate as
a one-way ratchet, most courts have read the “reflect” lan-
 UNITED STATES v. TADIO 20273
guage, and the 2002 amendments, in this fashion. See, e.g.,
Grant, 636 F.3d at 816-17; Shelby, 584 F.3d at 745, 748-49;
Manella, 86 F.3d at 204.

The third possible reading is that the “reflect” language
means that the court may determine the amount of a sentence
reduction in light of the assistance the defendant has provided,
in combination with non-assistance factors relevant to the
defendant. Again, under this reading, “reflect” means to “take
into account.” But under this reading non-assistance factors
may be used to grant a sentence reduction greater than, less
than, or the same as the reduction that would be warranted by
the defendant’s assistance considered alone. Rule 35(b) oper-
ates symmetrically under this reading, and non-assistance fac-
tors do not function as a one-way ratchet. Two dissenting
court of appeals judges and one district court judge have read
Rule 35(b) in this fashion. See Grant, 636 F.3d at 824-26
(Clay, J., dissenting); helby, 584 F.3d at 750-51 (Evans, J.,
dissenting); Park, 533 F. Supp. 2d at 475, 478-79.

[6] It is clear from the 2002 amendments — which substi-
tuted for the “reflect” language the phrase “may reduce a sen-
tence if” (emphasis added) — that substantial assistance is a
prerequisite to the granting of a Rule 35(b) motion. There is
nothing in the current language of the rule, however, that even
arguably requires a district court to determine the amount of
sentence reduction based only on the amount of assistance
provided. And there is nothing in the current language sug-
gesting that non-assistance factors should operate as a one-
way ratchet. The most natural reading of the current language
is that non-assistance factors may be considered, along with
the amount of assistance, in determining the amount of sen-
tence reduction, and that non-assistance factors may be con-
sidered symmetrically to allow a reduction that is either more
or less than the reduction that the assistance, considered
alone, would warrant. That natural reading is in no way incon-
sistent with the stylistic-only purpose of the 2002 amend-
ments because it conforms with the third possible reading of
20274 UNITED STATES v. TADIO
the original language of Rule 35(b). We conclude that this
interpretation of the current rule is the appropriate reading.

Reinforcing this conclusion, Rule 35(b) was further
amended in 2007 to eliminate the requirement that “reducing
the sentence accord[ ] with the Sentencing Commission’s
guidelines and policy statements.” See Grant, 636 F.3d at 825
(Clay, J., dissenting) (citing Fed. R. Crim. P. 35(b)(1)(B)
(2006)). (We note that the district court in this case was under
the impression that this language is still in the rule.) The
Advisory Committee Note states that the amendment “con-
forms Rule 35(b)(1) to the Supreme Court’s decision in
[Booker],” which “ ‘requires a sentencing court to consider
Guidelines ranges, . . . but . . . permits the court to tailor the
sentence in light of other statutory concerns as well.’ ” Adv.
Comm. Note, 2007 Amendments to Fed. R. Crim. P. 35
(quoting United States v. Booker, 543 U.S. 220, 245 (2005)
(majority op. of Breyer, J.)) (internal citation omitted). The
Note explained that subsection (b)(1)(B) “has been deleted
because it treats the guidelines as mandatory.” Id. We infer
from the deletion of subsection (b)(1)(B) that the Advisory
Committee anticipated that district courts would enjoy greater
latitude to “tailor” sentence reductions “in light of other statu-
tory concerns” than substantial assistance considered alone.
See Grant, 636 F.3d at 825 (Clay, J., dissenting) (“This dis-
cussion, 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 con-
templated that a district court may apply the § 3553(a) factors
in the context of a Rule 35(b) motion.”); Park, 533 F. Supp.
2d at 476-77. The Sentencing Commission had recommended
that the Advisory Committee Note “clarify that the changes
are not intended to enlarge the bases of what a court may con-
sider before imposing a post-sentence reduction.” Poland, 533
F. Supp. 2d at 216. The Advisory Committee declined to
adopt the Commission’s recommendation, which of course
suggests that the changes were indeed intended to “enlarge
 UNITED STATES v. TADIO 20275
the bases” that a district court may consider when deciding
the amount of a sentence reduction. Id.

Our reading of Rule 35(b) is consistent with our decision
in Doe. In Doe, we concluded that a district court could use
§ 3553(a) non-assistance factors in determining the amount of
sentence reduction under Rule 35(b). 351 F.3d at 933. The
non-assistance factors were used in that case to produce a
lesser sentence reduction than would have been awarded
based solely on the amount of assistance. Our opinion in Doe
relied on an Eleventh Circuit case, Manella, 86 F.3d 201,
which distinguished an earlier Eleventh Circuit case, United
States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir. 1994),
by holding that non-assistance factors could be used to pro-
duce a lesser, but not a greater, sentence reduction. But Doe
did not directly address the symmetry question. Instead, it
held only that “in denying a Rule 35(b) motion, a district
court’s consideration of relevant factors other than a defen-
dant’s substantial assistance to the government is a proper
exercise of its discretion.” 351 F.3d at 933.

For several reasons, we decline to transform the brief dis-
cussion of and partial reliance on an out-of-circuit case in Doe
into a holding of this court. First, the actual holding of Doe,
as quoted above, does not address whether positive non-
assistance factors can be taken into account when determining
the amount of a sentence reduction. Second, as we explain in
this opinion, we believe the proper reading of Rule 35(b) is
that non-assistance factors can be used in both directions
when determining the sentence reduction amount. Third, we
note that the original “reflect” language of Rule 35(b) gov-
erned the outcome in Doe, and that our opinion in that case
did not address either the clarification of that language in the
2002 amendments, or the reinforcement of that clarification in
the 2007 amendments.

[7] We also hold that Rule 35(b) permits, rather than
requires, consideration of non-assistance factors. That is, the
20276 UNITED STATES v. TADIO
district court may, rather than must, apply the § 3553(a) fac-
tors when determining the proper amount of a sentence reduc-
tion triggered by a defendant’s substantial assistance. See
Grant, 636 F.3d at 817 (“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.”).
This reading is consistent with the plain language of the cur-
rent rule, which repeatedly uses “may” to describe the court’s
discretion in considering the government’s Rule 35(b) motion.
See, e.g., Fed. R. Crim. P. 35(b)(3) (“[T]he court may con-
sider the defendant’s presentence assistance.” (emphasis
added)). The rule’s discretionary language contrasts with the
court’s statutory duty to consider § 3553(a) factors when
imposing an original sentence. See 18 U.S.C. § 3553(a) (“The
court, in determining the particular sentence to be imposed,
shall consider . . . .” (emphasis added)). Other courts agree
that consideration of non-assistance factors in Rule 35(b)
motions is permissive, rather than mandatory. See Grant, 636
F.3d at 815-16 (“We reject the argument that a district court
must consider § 3553(a) factors in connection with a Rule
35(b) motion.”); Park, 533 F. Supp. 2d at 477 (“[T]he case
law from outside the Circuit suggests that a court may con-
sider all [§] 3553(a) factors in deciding the extent of a Rule
35(b) reduction.” (emphasis added)).

[8] In sum, we agree with the government that “[a]s
amended, Rule 35(b) permits a post-sentence reduction if the
Government so moves and if there is substantial assistance,”
and that the district court acted properly when it considered
non-assistance factors in deciding whether to grant a greater
sentence reduction than warranted by Tadio’s assistance
alone. We conclude that the text of Rule 35(b) does not
restrict a district court’s discretion by allowing the district
court to apply the § 3553(a) factors only to grant a lesser
reduction than that which the defendant’s assistance, consid-
ered alone, would warrant. Rather, the current language of the
rule indicates that the court may rely on the § 3553(a) factors
to move in either direction. This result is consistent with
 UNITED STATES v. TADIO 20277
Supreme Court cases granting, and more recently restoring,
sentencing discretion to the district courts, which enjoy a
superior “vantage point and day-to-day experience in criminal
sentencing” that enables them “to consider every convicted
person as an individual and every case as a unique study in
the human failings that sometimes mitigate, sometimes mag-
nify, the crime and the punishment to ensue.” Koon v. United
States, 518 U.S. 81, 98, 113 (1996); see also Booker, 543 U.S.
at 245 (majority op. by Breyer, J.).

We note that our reading of Rule 35(b) has the virtue of
transparency. As discussed above, several of our sister circuits
require that a sentence reduction under Rule 35(b) “may not
exceed the value of the [defendant’s] assistance.” Grant, 636
F.3d at 816. A district judge who believes that a defendant’s
sentence should be reduced by, say, 24 months based on his
substantial assistance, and an additional 6 months based on
§ 3553(a) factors, might award a 30-month reduction and
attribute the reduction entirely to the defendant’s substantial
assistance. See Shelby, 584 F.3d at 751 (Evans, J., dissenting)
(noting that a “savvy” district judge “could have given [the
defendant] a much greater reduction . . . if only he had con-
fined his stated reasons to the substantial assistance rubric.
This is game-playing, and we should not encourage it.”). If
the district court has stated the correct legal standard when
reducing a sentence under Rule 35(b), we have no appellate
jurisdiction to review its decision. See 18 U.S.C. § 3742;
United States v. Pedroza, 355 F.3d 1189, 1190-91 (9th Cir.
2004) (per curiam). Recognizing this reality, the Fourth Cir-
cuit, after reversing the grant of a Rule 35(b) motion because
the district court had failed to make a finding that the defen-
dant had provided substantial assistance, reassigned the case
to a different district judge on remand. Clawson, 650 F.3d at
539 (explaining that it did so “[b]ecause reconsideration of
the Rule 35(b) motion by the original sentencing judge would
inevitably invite speculation as to whether [non-assistance
factors] continued to play a role in the ultimate ruling”). The
Supreme Court has rejected as “institutionalized subterfuge”
20278 UNITED STATES v. TADIO
rules that encourage district judges to camouflage their sen-
tencing decisions. See Spears v. United States, 555 U.S. 261,
266 (2009) (per curiam). Our reading of Rule 35(b) removes
the incentive for “institutionalized subterfuge” that would oth-
erwise exist.

We respond to several arguments against our reading of
Rule 35(b). First, Tadio argues that allowing a district court
to reconsider the § 3553(a) factors already weighed at sen-
tencing “is confusing, unworkable, and penalizes or rewards
the defendant twice; once at sentencing and the second time
on a Rule 35(b) motion.” We disagree. A district court is fully
capable of evaluating a Rule 35(b) motion, and the non-
assistance factors of § 3553(a), against the backdrop of a
defendant’s original sentence. The application of these factors
will not “cloud[ ] the analytical exercise that the district court
must undertake.” Clawson, 650 F.3d at 537 (quoting Grant,
636 F.3d at 818). Courts already have extensive experience
with taking the § 3553(a) factors into account when deciding
whether to decrease a sentence under Rule 35(b). In many
cases, the Rule 35(b) proceeding will likely be uncomplicated
and the reduction awarded will reflect only the defendant’s
substantial assistance. But this will not always be the case. In
some instances, for example, a defendant’s individual circum-
stances will have changed, or information that sheds new light
on the nature of the offense will have emerged, since the date
of sentencing. In others, the substantial assistance itself may
throw light onto the § 3553(a) factors considered in the origi-
nal sentencing, causing the district court to reconsider its eval-
uation of those factors. Allowing a district court, in the
government’s words, “to consider a host of factors in deter-
mining the extent of the reduction,” accords with the long-
standing principle that a sentencing court should “make an
individualized assessment” of each defendant. Gall v. United
States, 552 U.S. 38, 50 (2007).

Second, several courts have recognized a temptation to read
Rule 35(b) in pari materia with 18 U.S.C. § 3553(e). See
 UNITED STATES v. TADIO 20279
Grant, 636 F.3d at 813-15; Poland, 562 F.3d at 40-41. Sec-
tion 3553(e) provides that

[u]pon 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 Commis-
sion pursuant to [28 U.S.C. § 994].

18 U.S.C. § 3553(e). The relevant Sentencing Commission
policy statement, U.S.S.G. § 5K1.1, directs a court to focus on
such factors as the “significance and usefulness of the defen-
dant’s assistance,” the “truthfulness, completeness, and reli-
ability of any information or testimony provided by the
defendant,” and “any injury suffered, or any danger or risk of
injury to the defendant.” Id. § 5K1.1(a)(1), (2), (4). It is well
established in this circuit and others that in reducing a sen-
tence below a mandatory minimum based on substantial assis-
tance under § 3553(e), “[t]he district court may not . . .
consider factors unrelated to the defendant’s assistance.”
United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009)
(quoting Auld, 321 F.3d at 867); see also Grant, 636 F.3d at
814 & n.8. Because § 3553(e) and Rule 35(b) deal with the
same issue at different stages of the sentencing process, the
First Circuit has concluded that Rule 35(b) is subject to the
same requirement that a reduction below a mandatory mini-
mum must reflect only a defendant’s substantial assistance.
Poland, 562 F.3d at 40-41. However, we have already
declined to read the express limitations of § 3553(e) into Rule
35(b). See Doe, 351 F.3d at 933 (contravening the assistance-
only principle applied in § 3553(e) cases by allowing consid-
eration of non-assistance factors under Rule 35(b)). The
requirements that a Rule 35(b) reduction “reflect” substantial
assistance and “accord” with the Sentencing Commission’s
20280 UNITED STATES v. TADIO
Guidelines and policy statements have now been deleted from
Rule 35(b). In addition, Tadio was not subject to a statutory
mandatory minimum at his original sentencing. Where, as
here, a defendant’s sentence has never been governed by
§ 3553(e), we see no basis for importing the restrictions on
§ 3553(e) relief into a post-sentencing Rule 35(b) proceeding.

Third, the Seventh Circuit has suggested that our approach
would “create arbitrary distinctions between similarly situated
defendants” because only those defendants on whose behalf
the government makes Rule 35(b) motions would have the
opportunity to benefit from reapplication of the § 3553(a) fac-
tors. Shelby, 584 F.3d at 745. The Supreme Court in Pepper
rejected a similar argument that permitting a resentencing
court to consider post-sentencing rehabilitation would “ ‘ineq-
uitably benefit only those who gain the opportunity to be
resentenced de novo.’ ” 131 S. Ct. at 1247-48 (quoting
U.S.S.G. § 5K2.19 cmt.). The Court acknowledged that resen-
tenced defendants would be treated differently from those
who were not resentenced. But that disparity was acceptable
because it “arises not because of arbitrary or random sentenc-
ing practices, but because of the ordinary operation of appel-
late sentencing review.” Id. at 1248; see also id. at 1248-49
(“The differences in procedural opportunity that may result
because some defendants are inevitably sentenced in error and
must be resentenced are not the kinds of ‘unwarranted’ sen-
tencing disparities that Congress sought to eliminate under
§ 3553(a)(6).”). Similarly, in Rule 35(b) cases, any disparity
arises not because of arbitrary or random resentencing prac-
tices, but because of the ordinary operation of a rule that
rewards a defendant’s assistance to the government. In fact,
in this situation, there is less arbitrariness than in Pepper. The
defendant who has rendered substantial assistance after sen-
tencing is not similarly situated to a defendant who has not.
Instead, he is to be rewarded for his assistance, under our
interpretation of Rule 35(b), with the opportunity for consid-
eration of § 3553(a) factors.
 UNITED STATES v. TADIO 20281
Finally, the Seventh Circuit has also speculated that our
approach would cause the government to “lose control of the
sentencing process,” with the result that the government
“would rarely make [Rule 35(b)] motions any longer,” to the
detriment of defendants and prosecutors alike. Shelby, 584
F.3d at 747; see also Clawson, 650 F.3d at 537 (citing
Shelby). But district courts already have the authority to grant
greater Rule 35(b) reductions than the government requests if
they conclude that the defendant’s assistance was worth more
than the government has recommended. The Seventh Circuit
concedes that the government “seems content with such a
result.” Shelby, 584 F.3d at 747. The exercise of that authority
by district courts has not dissuaded the government from
using Rule 35(b) to encourage post-sentencing cooperation.
We fail to see why our reading of Rule 35(b), which results
in a slightly expanded authority of the district court to grant
a greater sentence reduction than recommended by the gov-
ernment, will operate differently.

[9] In sum, we hold that once a district court determines
that a defendant has provided substantial assistance in the
investigation or prosecution of another person, the court may
consider the § 3553(a) factors to award a sentence reduction
that is greater than, less than, or equal to the reduction that the
defendant’s assistance, considered alone, would warrant. We
caution that a resentencing under Rule 35(b) is not the equiva-
lent of a de novo sentencing. The district court is not free to
impose whatever sentence it now believes to be just, irrespec-
tive of the original sentencing and irrespective of the amount
of assistance rendered by the defendant. Compare with Dillon,
130 S. Ct. at 2692 (“Because reference to § 3553(a) is appro-
priate only at the second step of this circumscribed inquiry, it
cannot serve to transform the proceedings under § 3582(c)(2)
into plenary resentencing proceedings.”). Rather, a Rule 35(b)
proceeding is a resentencing in which the starting point is the
original sentence, and in which the amount of assistance ren-
dered by the defendant is the triggering factor for any reduc-
tion. The district court may properly consider the § 3553(a)
20282 UNITED STATES v. TADIO
factors in determining the amount of reduction and it may use
those non-assistance factors to reduce the sentence by an
amount greater than, less than, or the same as what the defen-
dant’s assistance, considered alone, would warrant. But the
amount of reduction should always be determined in reference
to the starting point and by considering the non-assistance
factors in combination with the amount of assistance rendered
by the defendant.

Conclusion

[10] The district court properly considered § 3553(a) non-
assistance factors in determining the amount of Tadio’s sen-
tence reduction under Rule 35(b). If a district court applies the
correct legal standard under Rule 35(b), we have no jurisdic-
tion to review its exercise of discretion in determining the
amount of a sentence reduction. Because the district court
applied the correct legal standard in this case, we AFFIRM its
consideration of non-assistance factors and DISMISS Tadio’s
challenge to the amount of his sentence reduction.

AFFIRMED in part and DISMISSED in part.