In assessing Rule 35(b) reduction in sentence, court to consider all Section 3553(a) factors, not just cooperation
Once the government opens the door post-sentencing to a reduction of sentence under Rule 35(b), defense counsel is free to argue, and a court should consider, all of the 18 U.S.C. § 3553(a) factors which must be weighed at the initial sentencing, the Sixth Circuit has held in a case of first impression.
While the post-sentencing cooperation of the defendant is a precondition to the government's filing a motion, it is not a limiting condition in terms of the factors which drive the resulting reduction. United States v. Grant, 567 F.3d 776 (6th Cir. 2009). In a 2-1 decision, the court of appeals held in Grant that current Rule 35(b) requires only that cooperation be the condition precedent to any reduction; it no longer requires, as did a previous iteration of the Rule, that any reduction "reflect" that cooperation. Indeed, the majority wrote, cooperation may still be the predominant consideration in determining the extent of any reduction. But the consideration of a defendant's cooperation does not limit the district court's assessment of the full array of Section 3553(a) factors which must be considered in imposition of any sentence.
The dissenting judge maintained that, since the Section 3553(a) factors will already have been considered at the original sentencing, the majority's ruling invites a "redo" of sentencing, an invitation unlikely to be welcomed by trial judges who already sentence an average of 117 defendants each year.
