Ninth Circuit Holds That Rule 35 Allows Judge To Consider The Entire Range Of Section 3553(a) Factors, Not Just the Extent Of Post-Sentencing Cooperation, When Resentencing Defendant
Every defendant has been entitled since Booker to have his or her sentencing judge consider the full array of Section 3553(a) factors in selecting an appropriate sentence which is sufficient, but no more than necessary, to implement the proper purposes of criminal sentencing. Also, any pre-sentencing cooperation which rendered value to the government is considered by that judge through the vehicle of a government-filed downward departure motion under Section 5K1.1 of the Sentencing Guidelines. Now, if that defendant should later provide post-sentencing cooperation to the government, an analogous and subsequent sentence-reduction motion may be filed by the government under Federal Rule of Criminal Procedure 35(b). But should there also be an analogous consideration of the Section 3553(a) factors in deciding in this second phase just how much of a sentence reduction to grant?
Until the recent Ninth Circuit decision in United States v. Tadio, 2011 WL 5839660 (9th Cir., Nov. 21, 2011), every court of appeals to have considered the question has held either that Section 3553(a) has no role at all to play in a subsequent sentence-reduction hearing or that the Section 3553(a) factors could only be considered to limit the extent of any reduction, a peculiar application of Booker and what Tadio called an improper ”one-way ratchet.”
The Tadio court instead held that once the government has filed a Rule 35(b) motion to reduce a defendant’s sentence for cooperation, and the sentencing floor is therefore open, the judge may consider all of the Section 3553(a) factors in deciding how much of a reduction to grant, allowing the ratchet to work in both directions symmetrically. The Tadio court rejected the contrary positions of the Sixth, Seventh, and Eleventh Circuits, and held that the sentencing judge, while not obliged to do so, could apply the Booker factors to support either a larger or a smaller reduction than that sought by the government's motion.
In effect, a Rule 35(b) motion would now set the stage for a second, plenary sentencing hearing. The government may well argue that the “rule of the case” or like doctrine restricts a judge’s ability to give greater weight to a Section 3553(a) factor at the second hearing than it did at the original sentencing. Still, the Tadio analysis at least gives counsel a full-throated opportunity to have a court reconsider its earlier views on particular sentencing criteria or to newly consider a factor inadequately weighted earlier. It is a welcomed door-opener and one which gives the fairest meaning to the mandate of Booker.
(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)