The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
Preliminary Statement The Government has filed a motion under Fed. R. Crim. P. 35(b)(1) asking the Court to reduce the sentences of five defendants who were convicted and sentenced for offering or taking bribes to secure Navy contract work. This isn't the first time the Government has asked the Court to reduce these defendants' sentences. The prosecutors filed a motion under § 5K1.1 of the Sentencing Guidelines before the original sentencing hearing, urging the Court to impose reduced sentences because the defendants had cooperated. The Court granted that motion, and each defendant received a substantial reduction for his cooperation. The current Rule 35 motion asks the Court to grant further reductions of the defendants' sentences because they continued to cooperate after they were sentenced by testifying in the trial of Robert Ehnow and Joanne Loehr, who were charged in the same bribery scheme. Two of the cooperating defendants, Vangundy and Graven, have filed memoranda supporting the Government's Rule 35 motion (the Court will assume that the motion is supported by all defendants). For the reasons given below, the motion is DENIED.
Propriety of Ruling on the Pleadings As an initial matter, the Court notes that Rule 43 of the Federal Rules of Criminal Procedure generally requires that a defendant be present for "sentencing" but excludes from that requirement proceedings that "involv[e] the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c)." Fed. R. Crim. P. 43(b)(4). See also Dillon v. United States, 560 U.S. __, 130 S. Ct. 2683, 2692 (2010). Because this motion falls within that exclusion, the Court assumes that no hearing is required. The assumption is bolstered by the Ninth Circuit's decision in United States v. Tadio, 663 F.3d 1042 (9th Cir. 2011), where the court emphasized that a Rule 35(b) motion does not authorize a district court to engage in a plenary resentencing proceeding. Id. at 1055 ("We caution that a resentencing under Rule 35(b) is not the equivalent of a de novo sentencing.").
Even if a hearing is not required, the Court assumes that it has discretion to convene one if it deems it is necessary, and to arrange for the defendants (all of whom are in custody) to be present. The Court elects not to hold a hearing on this motion. The Government has not requested one, nor has any defendant. Moreover, the motion papers make clear that the goal of the motion is to acknowledge the defendants' testimony in the trial of Ehnow and Loehr, and to give them additional credit for it. The undersigned judge presided at that trial and is thoroughly familiar with the testimony of each cooperating defendant and the likely effect it had on the outcome of the trial. Under these circumstances, a hearing wouldn't add anything or assist the Court in deciding the motion.
Standard for Granting Rule 35(b) Motion
A finding that the defendants provided substantial assistance to the Government is a prerequisite to Rule 35(b) relief. Tadio, 663 F.3d at 1047 ("The first step of the Rule 35(b) analysis is to determine whether the defendant offered substantial assistance sufficient to trigger a district court's authority to reduce a sentence."). While a district court has no authority to grant Rule 35 relief unless the Government moves for a reduction, id. at 1052, neither is a district court obligated to reduce a previously-imposed sentence merely because the Government requests it. United States v. Smith, 839 F.2d 175, 180 (3d Cir. 1988). Instead, the court's role in the Rule 35 process is to decide whether to accept the Government's recommendation and, if so, the magnitude of departure as a function of the degree and nature of the cooperation. Tadio, 663 F.3d at 1048. In other words, a district judge decides, in the first instance, whether to reduce a sentence due to a defendant's assistance, and, if so, the extent of any reduction.
A. Substantial Assistance
Defining some assistance as "substantial" implies that there is another type of assistance that is "non-substantial." Under this dichotomy, only a subset of defendant assistance can qualify a defendant for a substantial assistance departure. What objective and equitable parameters distinguish "substantial" assistance from "non-substantial" assistance? A Sentencing Commission policy statement helps answer this question.
The Policy Statement to U.S.S.G. § 5K1.1 instructs judges to consider the significance, usefulness, truthfulness, completeness, reliability, nature, extent, risk, and timeliness of the defendant's assistance.U.S.S.G. § 5K1.1, p.s.; see Tadio, 663 F.3d at 1054. Here, the Court will consider these factors in the context of the specific form of assistance that the Government urges in support of further sentence reductions - the defendants preparing to testify and testifying.
Application Note 3 to § 5K1.1 reminds judges that "[s]ubstantial weight should be given to the government's evaluation of the extent of the defendant's assistance, particularly where the extent and value of the assistance are difficult to ascertain." U.S.S.G. § 5K1.1, comment (n.3); United States v. Awad, 371 F.3d 583, 586-87 (9th Cir. 2004) (sentencing judge has wide latitude in evaluating the significance and usefulness of the defendant's assistance but should give substantial weight to the Government's evaluation). Deferring to the prosecutors' judgments makes sense because they typically have a unique and informed perspective on the benefit obtained from the assistance provided. In this case, in particular, the undersigned judge has high regard for both prosecutors, and acknowledges their comprehensive knowledge of the case and their assessment of the value of the defendants' testimony. At the same time, the Court's deference to the prosecutors can't be total. Under Rule 35(b), the Court is obligated to independently determine whether the cooperating defendants provided "substantial assistance," and whether further reductions of their sentences are equitable and warranted.
B. Analysis Under 18 U.S.C. § 3553(a)
If the Court agrees that the defendants provided substantial assistance, it may then consider any relevant non-assistance factors under 18 U.S.C. § 3553(a) before reducing their sentences further. Tadio, 663 F.3d at 1043, 1055. Rule 35(b) permits, rather than requires, a district court to consider non-assistance factors. Id. at 1052. In other words, a district court is free to balance the defendant's assistance with relevant non-assistance factors, and may reduce a cooperating defendant's sentence more than, less than, or equal to what the prosecutor has recommended or to what the defendant's assistance, considered alone, would warrant. Id. at 1055.
If a court elects to balance non-assistance factors, the starting point is the original sentence that was imposed. Id. As already mentioned, the Ninth Circuit has stressed that reducing a sentence under Rule 35(b) is not the equivalent of a de novo sentencing. A district court considering a Rule 35(b) motion must therefore confine its consideration to whether equity supports a further reduction of the defendant's original sentence in ...