Posted on November 3, 2009 by Alain Leibman

Cooperation is the only post-sentencing game in town

The Seventh Circuit recently held that, on a government motion under Rule 35(b) to reduce a sentence for new cooperation, the district court may not use the occasion to reopen sentencing to assess whether a reduction is justified under the 18 U.S.C. § 3553(a) factors.  Cooperation is the only basis for a post-sentencing reduction within the Rule. United States v. Shelby, 2009 WL 3335548 (7th Cir., Oct. 19, 2009).

Rarely, one might imagine, would sentencing judges so regret the severity of their initial sentence that they would relish a subsequent opportunity to broadly reexamine and reduce that sentence. However, one such instance occurred in the Northern District of Illinois when the trial court sentenced Gregory Shelby in 1996 to serve 285 months under then-mandatory Sentencing Guidelines for drug and firearms offenses. When the government moved 12 years later under Rule 35(b)(2) to reduce Shelby's sentence to 255 months on the strength of his post-sentencing cooperation, the same sentencing judge leapt at the opportunity to instead reduce the sentence to 180 months, basing his departure not only on Shelby's cooperation but on the § 3553(a) factors. The Seventh Circuit reversed.

Judge Posner wrote for the majority that Rule 35(b) -- which in subsection (2) concerns cooperation motions made more than one year after sentencing and limits the kinds of cooperation which qualify -- is not intended to create a kind of judicially-administered parole system which considers the defendant as a whole, and was created solely to assist law enforcement by encouraging cooperation. While a sentencing judge may look to § 3553(a) in determining the extent of a cooperation departure, and may exceed the government's recommended extent of departure in doing so, the judge may not consider those factors in determining the basis for a post-sentencing departure.
 

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Posted on April 16, 2009 by Alain Leibman

5K1.1 motion not needed post-Booker to gain downward variance for cooperation

Prior to Booker, the prosecution held the exclusive ability to trigger a downward departure for cooperation, that is to say, if the government could not be persuaded to file a 5K1.1 motion, then, absent a showing of a bad faith refusal to do so, the defendant had no hope of a departure. As Booker has changed the landscape generally, so it has specifically in the area of sentence reductions for cooperation. A government motion is no longer necessary to secure such a reduction, according to the Sixth Circuit in an opinion released on March 9th.

In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), the defendant had argued unsuccessfully in the District Court that she was entitled to a 5K1.1 motion which the government had withheld as a result of unspecified cooperation. The Court of Appeals agreed with the District Court that the government's failure to move was not undertaken in bad faith, so affirmed on that point. However, the better argument to have been made below was not made there -- the defendant had failed to argue in the trial court, however, that under Booker, the court could have considered her cooperation under 18 U.S.C. § 3553 in imposing a below-Guidelines sentence. That failure effected a waiver of the point in this particular case. But the Court of Appeals held more broadly that a 5K1.1 motion is no longer necessary before a sentencing judge may sentence below the advisory Guidelines range. That kind of downward variance is available whether or not the prosecutor seeks it.
 

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