United States v. Orozco

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 97-8213 11/17/98
THOMAS K. KAHN
CLERK
D. C. Docket No. 1:90-CR-6-4-JOF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

ALAIN OROZCO,
a.k.a. Allan Jene Velasquez,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Georgia

(November 17, 1998)

Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior Circuit
Judges.

BIRCH, Circuit Judge:
 This case presents the issue of whether a district judge has

jurisdiction under Federal Rule of Criminal Procedure 35(b) to grant

a motion for reduction of sentence, when information provided by a

defendant is useful in convicting a coconspirator, but the assistance

occurs more than one year after imposition of sentence and the

information was known by the defendant prior to sentencing. The

district judge determined that he was without jurisdiction to rule on

this motion outside of the prescribed time period. We affirm.

I. BACKGROUND

In December, 1989, defendant-appellant, Alain Orozco, was

arrested for transporting cocaine from South Florida to Atlanta,

Georgia. On July 9, 1990, he pled guilty in the Northern District of

Georgia to conspiring to manufacture, distribute and possess

cocaine base and cocaine hydrochloride in violation of 21 U.S.C. §

846 and making a false statement to the Federal Bureau of

Investigation to conceal his identity in violation of 18 U.S.C. § 1001.

In an effort to have the government file a U.S.S.G. § 5K1.1

departure motion at sentencing, Orozco informed the government

2
of his knowledge of the cocaine distribution operation in which he

was involved. In addition to other information regarding the

cocaine distribution conspiracy, Orozco identified Armando

Rodriguez, a major cocaine distributor for whom he provided

cocaine transportation services, and related details concerning their

transactions. The government, however, concluded that Orozco

was not entirely truthful and had minimized some information about

the cocaine distribution operation. Additionally, the information that

he supplied could not be used by the government against Orozco's

four codefendants charged in the indictment or others that he

named because of venue problems or lack of corroborating

evidence.

Concluding that the information provided by Orozco prior to

his sentencing was insufficient to qualify as substantial assistance,

the government did not move for a reduction in his sentence under

section 5K1.1. On November 16, 1990, Orozco was sentenced to

151 months of imprisonment for his role in the cocaine distribution

3
conspiracy. This court affirmed his sentence. See United States v.

Orozco, 964 F.2d 1146 (11th Cir. 1992) (mem.).

Within a year of Orozco's sentencing, the government filed a

preliminary motion under Rule 35(b) that advised the district judge

that Orozco's cooperation had not been completed. The

government requested the district judge not to rule on the motion

until it was supplemented or withdrawn. When Orozco furnished no

additional information, the government withdrew its preliminary

Rule 35(b) motion.1

1
In her special concurrence, Judge Kravitch states "that the record is void of any
information" to support the reason that the government withdrew its preliminary Rule
35(b) motion as being because Orozco provided no further cooperation. United States
v. Orozco, ___ F.3d ___, ___ n.3 (11th Cir. 1998) (Kravitch, J., concurring specially)
(emphasis added). To the contrary, the record provides sufficient support for this
statement. Within the time from his arrest on December 20, 1989, see R1-7(A), until
November, 1990, Orozco provided information regarding the extensive cocaine
distribution conspiracy in which he had been involved to the government through
various debriefings, see R1-107-1. At a debriefing on June 5, 1990, he identified
Rodriguez as a cocaine supplier, the information about which this case is concerned.
See R5-10. The information regarding Rodriguez, however, was not useful to the
government at that time because Rodriguez was a fugitive. See id. at 7 (AUSA's
explanation to the district judge at the hearing on the Rule 35 motion that information
that is not usable does not qualify for substantial assistance). Orozco's plea agreement
required him to cooperate fully with the government and to give "truthful testimony," R1-
82(D)-1 ¶ 2(c), to obtain a downward departure at his sentencing under U.S.S.G. §
5K1.1, see id. at 2 ¶ 2(d). Thus, the information that Orozco provided to the government
prior to his sentencing was with the hope of acquiring a § 5K1.1 motion for reduction in
his sentence.
Orozco's attorney conceded, however, in a motion for downward departure filed
on November 15, 1990, the day before Orozco's sentencing, that Orozco had minimized
the amount of cocaine that he had transported, "refused until November 9, 1990 to

4
admit he had other sources for cocaine than those originally named," R1-107-1, and
"denied his family's role in illegal drug trafficking," id. Consequently, Orozco's
"reluctance to be totally candid prevented the government from recommending that he
be given credit for substantial assistance and led to his failure to be given credit for
acceptance of responsibility." Id. at 2 (emphasis added). Thus, the AUSA did not make
a § 5K1.1 motion at Orozco's sentencing on November 16, 1990.
Within a year of Orozco's sentencing, the AUSA in the Northern District of
Georgia filed on November 14, 1991, the subject preliminary Rule 35(b) motion that
states that Orozco's cooperation "is not complete at this time," R1-131(A)-2 ¶ 4, and
that "Mr. Orozco has represented that he has information which may be of importance
to the Federal Bureau of Investigation or other agencies," id. at 1 ¶ 1. Thus, the purpose
of the government's filing the preliminary Rule 35(b) motion was "to preserve the
jurisdiction of this Court to lower the sentences imposed and allow the defendant
sufficient time to provide assistance which the United States may evaluate to determine
whether such assistance is substantial" so that the government could file a Rule 35(b)
motion for reduction in sentence should Orozco's cooperation be forthcoming and
qualify as substantial assistance. Id. at 2 ¶ 3 (emphasis added). The preliminary motion
was prospective, filed in anticipation of additional information from Orozco and before
such purported assistance had been received or evaluated. Additionally, on November
13, 1991, the government filed Rule 35 motions for reduction in sentences for two of
Orozco's codefendants, Miriam Ledesma and Haran Griffin, because of their substantial
assistance to the government. See R1-129, 130.
On January 8, 1992, the district judge noticed a hearing on February 7, 1992, for
the Rule 35 motions for Orozco, Ledesma, and Griffin. See R1-131(B). On February 4,
1992, the AUSA moved for a continuance of this hearing and stated the cooperation
status of Orozco, Ledesma and Griffin. See R1-131(C). Therein, the AUSA explains
that the government filed the preliminary Rule 35 motions "as the procedural device
whereby the Court may consider a reduction of the previously imposed sentences after
more than one year has passed from the date of sentencing." Id. at 1 ¶ 1. The AUSA
then states the status of cooperation for each defendant. With respect to Orozco, the
AUSA states that "[a]s of the filing of this continuance, Orozco has furnished no further
cooperation, but will be a witness in an investigation which has not been identified." Id.
at 1-2 ¶ 3 (emphasis added). On March 31, 1992, the district judge, "having . . . read
and considered" the government's motion for continuance wherein with respect to
Orozco, the AUSA stated that Orozco had provided no further information since the
filing of the government's preliminary Rule 35(b) motion, canceled the previously
scheduled hearing on Orozco's Rule 35 motion and acknowledged that the government
had withdrawn this motion. R1-134. Judge Kravitch postulates that Orozco could have
been a witness in a government investigation that was unidentified on February 4, 1992,
but was conducted in less than eight weeks and declared unfruitful prior to March 31,
1992, when the government's withdrawal of its preliminary Rule 35(b) motion became
effective. Orozco, ___ F.3d at ___ n.3 (Kravitch, J., concurring specially). While, after
approximately a year of government debriefings of Orozco, an unidentified investigation

5
 In 1996, the United States Attorney for the Northern District of

Florida learned that Orozco had information that could assist the

government in its prosecution of Rodriguez, who had been indicted

for distributing cocaine after being a fugitive for five years before

referenced in the government's motion for continuance filed on February 4, 1992, more
probably refers to a future prosecution of an unobtainable coconspirator, such as
Rodriguez, who was a fugitive, we need not speculate at all.
The government's brief states that "[Orozco] had furnished no other cooperation
since the preliminary Rule 35 motion had been filed" and cites the government's motion
for continuance which states that Orozco had provided no further assistance since the
filing of the preliminary Rule 35(b) motion. Appellee's Brief at 4. Furthermore, the AUSA
who signed the government's appellate brief as an officer of the court is the same AUSA
and member of the Southeastern Drug Task Force who signed the original indictment,
R1-7-4, the superceding indictment, id. 58-4, the plea agreement, id. 82(D)-4, the
preliminary Rule 35(b) motion, id. 131(A)-3, and the Rule 35(b) motion pertaining to
Orozco's assistance at the trial of Armando Rodriguez, filed on December 17, 1996 , id.
152-3. In short, this AUSA has handled Orozco's case from investigation through this
appeal and obviously knew what information Orozco provided and when he provided it.
By signing the government's brief, the AUSA certified that the statements therein were
supported by his knowledge and information. See United States v. Stevens, 510 F.2d
1101, 1106 n.5 (5th Cir. 1975) (recognizing that, aside from sworn affidavits, a
government attorney who signs a document filed with a court is "acting as an officer of
the court" and is "bound by the requirements of Rule 11, Federal Rules of Civil
Procedure."). Thus, there is no nothing in the record whatsoever to indicate that Orozco
provided further assistance to the government from the time that the AUSA filed the
preliminary Rule 35(b) motion on November 14, 1991, until that motion was withdrawn
by the government effective March 31, 1992. Moreover, Orozco has not contradicted
the government's factual relation of his cooperation by representing otherwise.

6
his arrest.2 At Rodriguez's trial in May, 1996, over four years after

Orozco's sentence became final, Orozco testified that Rodriguez

supplied him with five kilograms of cocaine, which he brought to

Atlanta. Additionally, he corroborated the testimonies of earlier

government witnesses. Orozco's testimony was the same

evidence that he had provided in 1990 to Federal Bureau of

Investigation and Drug Enforcement Administration agents.

Because of his assistance, the Florida Assistant United States

Attorney recommended to the Georgia Assistant United States

Attorney ("AUSA") that a Rule 35(b) motion be filed for Orozco. In

the government's motion for reduction of sentence, filed on

December 17, 1996, in the Northern District of Georgia, the AUSA

explained that the information upon which the motion was based

was known to Orozco at his sentencing but that the government

had no interest in the information until more than one year after

2
Rodriguez negotiated a guilty plea that he subsequently withdrew and
proceeded to trial; he was convicted.

7
Orozco had been sentenced.3 In the motion, the AUSA advised

that "Orozco appeared and testified with the understanding that no

guarantee was made as to any sentence reduction" and that,

"because this motion is made more than one year after imposition

of sentence," the district judge must determine whether he "has

jurisdiction to consider this motion and grant any reduction of the

previously imposed sentence." R1-152-2.

The same district judge in the Northern District of Georgia who

had sentenced Orozco conducted a hearing on the government's

Rule 35(b) motion on January 30, 1997. The AUSA informed the

district judge that, when he was prosecuted and debriefed in 1990,

Orozco had related information concerning Rodriguez. Because

Rodriguez could not be located, Orozco's information could not be

used to prosecute him at that time. Thus, the government did not

file a motion to reduce Orozco's sentence for substantial

assistance.

3
Pursuant to Rule 35(b), the Georgia AUSA asked the district judge to reduce
Orozco's sentence from 151 to 115 months. See R1-152-3.

8
 In response to the district judge's inquiry about the terms of

Orozco's plea agreement, the AUSA advised that the agreement

did not require that the government file a Rule 35(b) motion but

stated that the government would inform the district judge and file a

section 5K1.1 motion if Orozco provided substantial assistance

prior to his sentencing. Absent his being able to order the

government to file a Rule 35(b) motion pursuant to the terms of the

plea agreement, the district judge concluded that he was without

jurisdiction under the rule to consider a Rule 35(b) motion for

substantial assistance at that time.4 Orozco appeals this ruling.

II. DISCUSSION

In this appeal, we must decide whether the district judge

correctly determined that he did not have jurisdiction to consider a

Rule 35(b) motion for reduction of sentence, when Orozco provided

information known to him prior to his sentencing but that

4
Concerning his jurisdiction to rule on the government's Rule 35(b) motion, the
district judge decided that he lacked jurisdiction: "And I'm going to rule that I lack
jurisdiction based on the fact that [Orozco] gave the information, the government did not
in the one-year period of time consider it to be substantial[]. It only became substantial
when it became practically useful." R5-15. Nevertheless, the district judge commented
that "[t]he case cries out for relief. If it were discretionary, I would do something. I
understand it is jurisdictional." Id. at 12.

9
information was not useful in prosecuting Rodriguez until over a

year after imposition of Orozco's sentence. We review a district

judge's statutory interpretation and application de novo. See

United States v. Grigsby, 111 F.3d 806, 816 (11th Cir. 1997).

When a statute has been duly enacted and the language is plain,

"'the sole function of the courts is to enforce it according to its

terms.'" Central Trust Co. v. Official Creditors' Comm. of Geiger

Enters., Inc., 454 U.S. 355, 359-60, 102 S.Ct. 695, 698 (1982) (per

curiam) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37

S.Ct. 192, 194 (1917)). "Review of the legislative history is not

necessary unless a statute is inescapably ambiguous." Solis-

Ramirez v. United States Dept. of Justice, 758 F.2d 1426, 1430

(11th Cir. 1985) (per curiam); see United States v. Rush, 874 F.2d

1513, 1514 (11th Cir. 1989) (recognizing that legislative history is

not used to create ambiguity where statutory language is clear).

Federal Rule of Criminal Procedure 35(b) provides:

REDUCTION OF SENTENCE FOR CHANGED
CIRCUMSTANCES. The court, on motion of the
Government made within one year after the imposition of
the sentence, may reduce a sentence to reflect a

10
 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 may consider a government
motion to reduce a sentence made one year or more
after imposition of the sentence where the defendant's
substantial assistance involves information or evidence
not known by the defendant until one year or more after
imposition of sentence. The court's authority to reduce a
sentence under this subsection includes the authority to
reduce such sentence to a level below that established
by statute as a minimum sentence.

18 U.S.C. app. Fed. R. Crim. P. 35(b) (1994) (emphasis added).

Our court previously has held that the time period stated within the

rule for the government to file a Rule 35(b) motion is jurisdictional.

See In re United States, 898 F.2d 1485, 1486 (11th Cir. 1990) (per

curiam) (citing United States v. Addonizio, 442 U.S. 178, 189, 99

S.Ct. 2235, 2242-43 (1979)); United States v. Rice, 671 F.2d 455,

459 (11th Cir. 1982).5 We also have determined that "sentence is

5
We acknowledge that these cases were decided under prior versions of Rule
35(b) and that they state different time periods for the government's filing a Rule 35(b)
motion after imposition of sentence. Nevertheless, we apply our precedential rationale
regarding the jurisdictional nature of this operative time period to the current version of
Rule 35(b). See United States v. Lopez, 26 F.3d 512, 522 (5th Cir. 1994) (stating that
the seven days from imposition of sentence within which the district court can correct
technical errors is "jurisdictional" under Federal Rule of Criminal Procedure 35(c), which
was added to Rule 35 with the 1991 amendment that also revised Rule 35(b), which we

11
imposed for the purposes of Rule 35(b) when the sentencing order

constitutes a final, appealable order," which signifies the

commencement of the running of the specified time period. In re

United States, 898 F.2d at 1487. Additionally, we have clarified the

"temporal framework" involved with the government's

acknowledging a convicted defendant's substantial assistance prior

to sentencing in a section 5K1.1 motion at sentencing and the

government's rewarding a convicted defendant's substantial

assistance to the government after sentencing with a Rule 35(b)

motion.6 See United States v Alvarez, 115 F.3d 839, 842 (11th Cir.

1997); United States v. Howard, 902 F.2d 894, 896 (11th Cir.

1990).

Prior to the current version of Rule 35(b), the time period

within which a Rule 35(b) motion requesting a sentence reduction

for post-sentencing assistance could be filed was limited to the

review in this case).
6
Rule 35(b) "provides the only avenue for reduction of a legally imposed federal
prison sentence," United States v. Gangi, 45 F.3d 28, 30 (2d Cir. 1995), while 28
U.S.C. § 2255 and Federal Rule of Criminal Procedure 35(a) permit a district court to
correct an illegal sentence at any time.

12
specified time period stated in Rule 35(b) from the date on which

the convicted defendant's sentence became final.7 The current

version, resulting from the 1991 amendment to Rule 35, restricts

the time period within which the government may file a Rule 35(b)

motion to "one year after the imposition of the sentence" and further

extends the time period within which the government may file a

Rule 35(b) motion to "one year or more after imposition of the

sentence" through the qualification or exception when the convicted

defendant provides substantial assistance, consisting of

"information or evidence" unknown "by the defendant until one year

or more after imposition of sentence." 18 U.S.C. app. Fed. R. Crim.

P. 35(b) (1994). Our sole inquiry in this appeal is to decide whether

the district court had jurisdiction to rule on the government's Rule

35(b) motion to reduce Orozco's sentence following his assistance

in the prosecution of Rodriguez in 1996.

7
The time period within which the government may file a Rule 35(b) motion from
the date that a sentence is final has been expanded by amendments. See 18 U.S.C.
app. Fed. R. Crim. P. 35 (1964) (60 days); 18 U.S.C. app. Fed. R. Crim. P. 35 (1970)
(120 days); 18 U.S.C. app. Fed. R. Crim. P. (1994) (one year).

13
 Because Orozco's assistance in the prosecution of Rodriguez

and the consequent filing of the Rule 35(b) motion in 1996 were

outside of the one-year limitation after the imposition of his

sentence, he argues the applicability of the exception in Rule 35(b).

He represents that the rule allows a motion for reduction of

sentence to be filed after the one-year period when a convicted

defendant's assistance does not become useful to the government

until a year or more after sentence imposition. Thus, he argues

that the information regarding Rodriguez that he provided to the

government in 1990 should make him eligible for a reduction in his

sentence under Rule 35(b) as of the time in 1996 that it became

useful to the government to convict Rodriguez.

In addressing the current version of Rule 35(b), as amended

in 1991, the Fourth and Seventh Circuits have interpreted the rule

literally. See United States v. Carey, 120 F.3d 509 (4th Cir. 1997),

cert. denied, ___ U.S. ___, 118 S.Ct. 1062 (1998); United States v.

McDowell, 117 F.3d 974 (7th Cir. 1997). In Carey, the Fourth

Circuit recognized the policy considerations involved in the one-

14
year limitation on the government's filing a Rule 35(b) motion:

"ending the sentence negotiation process," "finalizing the length of

a defendant's sentence," providing convicted defendants with

incentive promptly to disclose all of their knowledge concerning

unlawful conduct "regardless of whether they appreciate its value to

the government," and preventing sentence manipulation whereby

convicted defendants could return to the government years after

sentencing with outdated or fabricated information regarding

criminal activity. Carey, 120 F.3d at 511, 512. Applicable to this

case, that court determined that "if substantial assistance forming

the basis of a downward departure motion involves information or

evidence that the defendant knew within the one-year period after

his sentencing, he is not entitled to have the one-year limitation

relaxed." Id. at 511.

The Carey court also confronted the same argument

presented by Orozco that the Advisory Committee Note to Rule

35(b) relaxes the one-year limitation period to encompass the

situation where a defendant's assistance was not useful until the

15
one-year period from sentence imposition had expired.8 See id. at

512. In rejecting this argument, the Fourth Circuit explained:

[T]he Advisory Committee Note is not the law; [Rule
35(b)] is. . . . [I]f the Advisory Committee Note can be
read in two ways, we must read it, if we consult it at all,
in a manner that makes it consistent with the language of
the rule itself, and if the rule and the note conflict, the
rule must govern. Because the rule on the issue before
us is unambiguous, we need not even consult the note to
determine the rule's meaning.
The rule unambiguously provides that the one-year
limitation may be relaxed only where the information
provided by the defendant was "not known by the
defendant until one year or more after the imposition of
sentence." This language does not allow for an
interpretation that the one-year period may be relaxed
when the information was known during the one-year
period but that the cooperation could not have been
provided until more than one year, for whatever reason.

8
The portion of the 1991 Advisory Committee Notes to the current version of
Rule 35(b) that the Carey court addressed and that Orozco argues to us states as
follows:

The [1991] amendment [to Rule 35(b)] also recognizes that there
may be those cases where the defendant's assistance or cooperation may
not occur until after one year has elapsed. For example, the defendant
may not have obtained information useful to the government until after the
time limit had passed. In those instances the trial court in its discretion
may consider what would otherwise be an untimely motion if the
government establishes that the cooperation could not have been
furnished within the one-year time limit. In deciding whether to consider
an untimely motion, the court may, for example, consider whether the
assistance was provided as early as possible.

18 U.S.C. app. Fed. R. Crim. P. 35(b) (1994)(Advisory Comm. Notes for 1991 Amend.).

16
Id. at 512-13 (citation omitted).9 See Fed. R. Crim. P. 45(b) ("[T]he

court may not extend the time for taking any action under Rule[] . . .

35, except to the extent and under the conditions stated in [it].").

In McDowell, the Seventh Circuit recognized that the one-year

jurisdictional provision for a Rule 35(b) motion is distinct from other

jurisdictional deadlines because it is "qualified by the exception for

'information or evidence not known by the defendant until one year

or more after imposition of sentence.'" McDowell, 117 F.3d at 979

(quoting Fed. R. Crim. P. 35(b)). Since the government's filing

Rule 35(b) motions within a year of sentencing is "a constraint upon

the court's authority to grant such motions," cases in which this

exception is invoked requires a district judge "to conduct an inquiry,

9
We note that the First Circuit stands alone in using the 1991 Advisory
Committee notes to render a broad interpretation of "'not known'" with reference to a
defendant's knowledge a year or more after sentence imposition, as stated in the
current version of Rule 35(b). United States v. Morales, 52 F.3d 7, 8 (1st Cir. 1995)
(quoting Fed. R. Crim. P. 35(b)). Eschewing a literal interpretation of Rule 35(b), that
court held that a defendant cannot be said to "'know'" information useful to the
government "until becoming aware of its value, or being specifically asked," although
the defendant in that case did not acquire the information until a year or more after her
sentencing. Id. In addition to our disagreement with the First Circuit's expansive
interpretation of Rule 35(b), we note that the Morales defendant did not substantially
cooperate with the government pursuant to a supplemental plea agreement until several
years after her sentencing, whereas Orozco reiterated at Rodriguez's trial in 1996
information that he had given the government in 1990.

17
beyond a perusal of the docket sheet" to determine if he has

"authority to grant a Rule 35(b) motion." Id. For the exception to

the jurisdictional, one-year rule to become effective for the

government's filing a Rule 35(b) motion, the Seventh Circuit

concluded that the district judge must be convinced that the

convicted defendant acquired information or evidence not known

until a year or more after sentencing. That court reasoned that

"[b]ecause only the government now may file Rule 35(b) motions,

an interpretation of the Rule that permitted the government to

'waive' the time limit would render the deadline ineffectual."

McDowell, 117 F.3d at 979.

While Orozco is ineligible jurisdictionally from application of

the one-year limitation period from sentence imposition in Rule

35(b), we conclude that he also is ineligible factually under the plain

terms of the exception to the rule. It is undisputed that Orozco did

not provide information or evidence in the prosecution of Rodriguez

that was unknown to him during the one-year time limitation

following the imposition of his sentence. He reiterated at

18
Rodriguez's trial in 1996 the same information that he had given the

government in 1990 before his sentencing. The current version of

Rule 35(b) concerning assistance provided by a convicted

defendant more than a year after imposition of his sentence

focuses on the character of the information provided by the

defendant, new disclosures, and not the usefulness of that

information to the government. See United States v. Mitchell, 964

F.2d 454, 461 (5th Cir. 1992) (per curiam) (recognizing that, in the

usual case, "no information or evidence comes to light more than

one year after imposition of sentence"). With the hope of reducing

their sentences, convicted defendants provide a variety of

information to the government.10 Determining whether a motion for

reduction of sentence will be filed is reserved to the government,

which must ascertain what information the defendant has as well as

10
"[T]he substantial assistance business is inherently risky. When a defendant
first decides to cooperate there is no guarantee that the government will ultimately
deem his assistance 'substantial.'" United States v. White, 71 F.3d 920, 927 (D.C. Cir.
1995). See United States v. Francois, 889 F.2d 1341, 1345 (4th Cir. 1989) (noting that
the government's decision not to file a substantial assistance motion under either
section 5K1.1 or Rule 35(b) "does not deprive the defendant of any constitutional rights
. . . because there is no constitutional right to availability of a substantial assistance
provision to reduce a criminal sentence.").

19
the truthfulness and usefulness of this information before deciding

whether it is appropriate to file a section 5K1.1 motion at

sentencing or a Rule 35(b) motion for a convicted defendant

thereafter. See Wade v. United States, 504 U.S. 181, 185, 112

S.Ct. 1840, 1843 (1992) (acknowledging "that in both [18 U.S.C.]

§ 3553(e) and § 5K1.1 the condition limiting the court's authority

gives the Government a power, not a duty, to file a motion when a

defendant has substantially assisted"); United States v. Forney, 9

F.3d 1492, 1501 (11th Cir. 1993) (noting that "courts are precluded

from intruding into prosecutorial discretion" regarding substantial

assistance motions). "The substantial assistance regime is not a

spoils system designed simply to reward a cooperative defendant;

it is designed to benefit the government in its prosecution efforts."

United States v. White, 71 F.3d 920, 924 (D.C. Cir. 1995).

Provided that a Rule 35(b) motion is filed within the jurisdictional

time period, within a year of sentence imposition for information

known to a convicted defendant during that time and more than a

year after sentence imposition for new information unknown to the

20
convicted defendant within a year of sentence imposition, the

district judge has discretion to rule on the motion based upon the

government's recommendation. See United States v. Griffin, 17

F.3d 269, 270 (8th Cir. 1994) ("The decision to grant or deny a Rule

35(b) motion is entirely within the discretion of the district court.").

There is no evidence of bad faith on the part of the

government in this case.11 That is, the government did not acquire

Orozco's information concerning Rodriguez and deliberately refrain

from using that information until the one-year time limitation from

imposition of his sentence had passed so that the motion would be

barred jurisdictionally. Instead, after receiving Orozco's information

regarding Rodriguez in 1990, the AUSA in the Northern District of

Georgia determined that this information in conjunction with other

information that Orozco provided prior to his sentencing was not

useful. Therefore, the government did not file a section 5K1.1

11
We have observed "that not only is the government the best determiner of a
defendant's assistance, but also that it has great incentive to perform this evaluation
accurately. . . . [T]he government has no reason to refuse to make substantial
assistance motions when appropriate, since it is dependant upon future defendants'
cooperation." Forney, 9 F.3d at 1502 n.4.

21
motion and subsequently withdrew its preliminary Rule 35(b)

motion when Orozco supplied no additional information within a

year after imposition of his sentence. Thereafter, the prosecution of

Rodriguez, who had been a fugitive for five years, commenced in

the Northern District of Florida. Orozco was contacted by the

government, and he testified at Rodriguez's trial. His testimony

was the same information that he had imparted in the Northern

District of Georgia in 1990, nothing more.12 Since Orozco merely

repeated the same information known to him when he talked with

the government before his sentencing, he is not eligible for a Rule

35(b) motion under the exception for information that is not known

by the convicted defendant until more than a one-year period after

sentence imposition. Congress has enacted several revisions of

Rule 35(b) and, thus, has shown attentiveness to changing the

specific terms of this rule. We are not at liberty to add terms or

12
In testifying at Rodriguez's trial, Orozco did precisely what he agreed to do in
his plea agreement: "The defendant [Orozco] will voluntarily appear without subpoena
or other legal process at any proceeding where his testimony is desired by the
Government and will give truthful testimony." R1-82-2 at ¶ c. We additionally note that,
based on his previous information given to the government, Orozco could have been
subpoenaed to testify to this information at Rodriguez's trial.

22
posit an interpretation that differs from the explicit language of Rule

35(b), particularly when we can decide this case within the plain

terms of the rule.13 See Illinois v. Abbott & Assocs., Inc., 460 U.S.

557, 572, 103 S.Ct. 1356, 1364 (1983) (recognizing that federal

courts are not authorized "to add specific language that Congress

did not include in a carefully considered statute"); Carey, 120 F.3d

at 512 ("Whether we agree with all of the policy considerations or

whether [Rule 35(b)] effectively addresses them, we are bound to

apply the rule in the manner in which it is written.").

III. CONCLUSION

In this appeal, Orozco contends that the district judge should

have granted the government's Rule 35(b) motion and reduced his

sentence based on his testimony in Rodriguez's trial over four

13
Although we do not believe that the explicit terms of Rule 35(b) permit us to
accord relief to Orozco, we agree with the district judge that this case demonstrates a
factual situation that Congress should consider when it next contemplates revision of
this rule. That is, we hope that Congress will address the apparent unforeseen situation
presented in this case where a convicted defendant provides information to the
government prior to the expiration of the jurisdictional, one-year period from sentence
imposition but that information does not become useful to the government until more
than a year after sentence imposition. In making the Rule 35(b) motion, the government
determined that it was warranted but also recognized the jurisdictional impediment of
Rule 35(b).

23
years after imposition of Orozco's sentence. Because Orozco

repeated information to prosecutors in the Northern District of

Florida that he previously had disclosed to prosecutors in the

Northern District of Georgia before his sentencing and did not

relate information acquired a year or more after his sentence

imposition, the district judge concluded that he was without

jurisdiction to consider the Rule 35(b) motion. For the reasons

explained herein, we agree that the district judge did not have

jurisdiction to consider the Rule 35(b) motion. Accordingly, we

AFFIRM the ruling of the district judge.

24
HILL, Senior Circuit Judge, concurring:

The facts of this case illustrate the near impossibility of codifying that

which ought to be left to judicial discretion. The Executive, charged with

seeing to the faithful execution of the law, has concluded that Orozco ought

to have the benefit of his cooperation. He had fully, and promptly,

cooperated, but the government only belatedly appreciated the value of his

cooperation. The Executive’s opponent, Orozco, obviously feels that he

should have this benefit. The district judge that heard the original case as

well as this petition would grant the relief. As I take it (footnote 12), we,

also, would grant it.

But the draftsman of this rule, trying to anticipate future situations,

succeeded in anticipating all except the one that obtains.1 So, Orozco,

1
The product of this rule is like unto the estate planning attorney who has
diligently prepared a will with so many provisos that it anticipates every conceivable
situation except the one actually existing at his client’s death.

25
entitled to release under the views of all interested parties, remains in

penal servitude and all that we can do is suggest that the Congress, in it

own good time, attempt by further codification to see that it does not

happen to someone else. We ought to do better than this.

KRAVITCH, Senior Circuit Judge, concurring specially:

I agree with the majority that Rule 35(b) is drafted so narrowly that it

must be read to preclude jurisdiction in this case. I write separately,

however, to emphasize that this result contradicts Congress’s purpose in

providing for discretionary sentence reductions if the defendant

immediately provides the government with information that assists the

government substantially in prosecuting other criminals. Rule 35, as

written, discourages minor participants in large criminal operations from

divulging key information about their cohorts, knowing that the government

may choose or may be forced to wait to use the information until the time

limit for any possible sentence reduction has passed.

As other courts that have considered Rule 35(b) have noted, the

purpose of the rule is to encourage defendants immediately to provide full

disclosure about criminal operations of which they have knowledge. See

26
United States v. Morales, 52 F.3d 7, 8 (1st Cir. 1995) (“Manifestly, the

purpose for denying value to retained knowledge is to induce immediate full

disclosure.”); United States v. Carey, 120 F.3d 509, 512 (4th Cir. 1997),

cert. denied, ___ U.S. ___, 118 S. Ct. 1062 (1998) (“The one-year

limitation also provides an incentive to defendants to come forward

promptly with all that they know about illegal conduct, regardless of

whether they appreciate its value to the government.”). The Advisory

Committee Notes to the 1991 amendment to Rule 35(b) (“the Notes”) also

emphasize that timely cooperation by the defendant, rather than timely use

of the information by the government, is the focus of the new rule.1 That

the language of the rule itself fails to carry out this obvious and important

policy manifests an urgent need for Congress to reconsider Rule 35.

1
The Notes describe one of the problems with the old rule, which the 1991
amendment was intended to correct:
[Under the old rule], the trial court was required to rule on the
government’s motion to reduce a defendant’s sentence within one year after
imposition of the sentence. This caused problems, however, in situations where
the defendant’s assistance could not be fully assessed in time to make a timely
motion which could be ruled upon before one year had elapsed. . . . [The
amendment] should benefit both the government and the defendant and will
permit completion of the defendant’s anticipated cooperation with the
government.”
18 U.S.C. app. Fed. R. Crim. P. 35(b) (Advisory Comm. Notes for 1991 Amend.).
The Notes also address the portion of the amendment that allows a district court
to exercise jurisdiction over a Rule 35(b) motion made outside the one-year time limit:
“In deciding whether to consider an untimely motion, the court may, for example,
consider whether the assistance was provided as early as possible.” Id.

27
 The predicament in which the defendant here finds himself powerfully

illustrates the gap that Congress has created in Rule 35(b). The defendant

was arrested on drug charges in 1989 at the age of nineteen; he

subsequently entered a guilty plea and was sentenced to 151 months in

prison. Well within the one-year time period prescribed by Congress,2 the

defendant provided extensive information about the criminal operation in

which he was involved, including information about Armando Rodriguez, a

major cocaine distributor who was a fugitive at the time. The government

initially filed a Rule 35(b) motion with respect to the defendant but

requested that the district court delay its ruling on the motion. Ultimately,

the government withdrew that motion.3 It is undisputed that in 1996, when

2
It is not clear from the record exactly when the defendant disclosed this
information to the government. It appears, however, that the disclosure may have been
made as early as the day the defendant was arrested.
3
The majority seems to infer that the government withdrew the original Rule
35(b) motion because the defendant stopped cooperating. Although the point does not
affect our holding, I note that the record is void of any information to support that
conclusion, and even the government–upon whose brief the court independently relies
to substantiate its characterization of the facts–does not urge such an inference. The
original Rule 35(b) motion, filed within the one-year time limit, requested that the district
court hold the motion until the government could “appropriately investigate the matter
which the defendant will disclosed [sic].” R1-131(1), at ¶ 5. The motion stated that
“[t]he cooperation which the defendant provides, in all likelihood, will involve the need
for extensive investigative measures . . . and therefore, is not complete at this time.” Id.,
¶ 4. A few months later, the government requested that the district court again delay
the hearing on the Rule 35(b) motion, stating that the defendant “ha[d] furnished no
further cooperation, but [would] be a witness in an investigation which [had] not been
identified.” R1-131(2), at ¶ 3. Less than two months later, the government withdrew the
Rule 35(b) motion without explanation. In presuming that the defendant stopped

28
Rodriguez finally had been apprehended and indicted and was being tried,

the defendant voluntarily served as a government witness and testified to

the same information he had provided the government several years

before. In the government’s judgment, this testimony assisted it

substantially in the prosecution of Rodriguez, as evidenced by the

government’s decision to bring the motion to reduce the defendant’s

sentence that is at issue in this case. This court is bound by Rule 35(b),

however, and thus must reject the government’s attempt to carry out the

purpose of the rule.

It is unfortunate that the language of this rule precludes the

implementation of the very policy it was written to support. It is particularly

unfortunate for the defendant here, whose case, as the district court noted,

“cries out for relief.”

cooperating, the majority ignores the plausible inference from this record that the
government withdrew the Rule 35(b) motion because its investigation did not prove
fruitful and it therefore was unable at that time to use the information provided by the
defendant in any concrete way.

29