United States v. John Doe

270 F.3d 413, 2001 U.S. App. LEXIS 23629, 2001 WL 1345060

Opinions

OPINION

RYAN, Circuit Judge.

The defendant, John Doe, substantially assisted the government by providing information concerning illegal drug activities, but the government delayed in filing a motion pursuant to Federal Rule of Criminal Procedure 35(b) until over two and a half years after Doe’s sentencing. The district court concluded that it lacked jurisdiction to decide the government’s motion because the government had failed to comply with the time limitations set forth in Rule 35(b). We will affirm.

I.

Because Doe substantially assisted the government by providing information concerning the drug activities of Richard Roe, the court departed downward from the applicable guideline range and sentenced Doe to 120 months for his conviction of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Doe also claims entitlement to an additional reduction pursuant to Rule 35(b); however, the government did not file a Rule 35(b) motion until June 28, 1999, over two and a half years after Doe’s sentencing. The government delayed filing its motion because Roe had appealed his conviction, and had Roe been successful, the government thought it might need Doe as a witness during Roe’s new trial.

Federal Rule of Criminal Procedure 35(b) states:

(b) Reduction of Sentence for Substantial Assistance. If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant’s subsequent substantial assistance in investigating or prosecuting another person, in accordance with the guidelines and policy statements issued by the Sentencing Commission under 28 U.S.C. § 994. The court may consider a government motion to reduce a sentence made one year or more after the sentence is imposed if the defendant’s substantial assistance involves information or evidence not known by the defendant until one year or more after sentence is imposed. In evaluating whether substantial assistance has been rendered, the court may consider the defendant’s pre-sentence assistance. In applying this subdivision, the court may reduce the sentence to a level below that established by statute as a minimum sentence.

Fed.R.Crim.P. 35(b) (emphasis added).

The district court held a hearing on the government’s Rule 35(b) motion on September 24, 1999. In its opinion, the district court concluded that it lacked jurisdiction to decide the motion because the government had not complied with Rule 35(b)’s statute of limitation requiring that the government file the motion within one year after the sentence is imposed, when the information is known to the defendant during that time. Doe then timely filed an appeal.

II.

The Honorable Curtis L. Collier, United States District Judge, prepared a well-reasoned opinion that thoroughly discussed and analyzed the Rule 35(b) issue presented in this case. Because we agree with Judge Collier’s reasoning and conclusion, and because we cannot improve upon his excellent opinion, we adopt Judge Collier’s opinion as our own.

Accordingly, we AFFIRM the judgment of the district court.