Submitted March 15, 2016 [*] San Francisco, California
from the United States District Court for the Northern
District of California D.C. No. 3:95-cr-00319- MMC-7 Maxine
Chesney, District Judge, Presiding
K. Pyle, Berkeley, California, for Defendant-Appellant.
Douglas Wilson, Assistant United States Attorney; Barbara J.
Valliere, Chief, Appellate Division; Melinda Haag, United
States Attorney; United States Attorney's Office, San
Francisco, California; for Plaintiff-Appellee.
Before: M. Margaret McKeown, Kim McLane Wardlaw, and Richard
C. Tallman, Circuit Judges.
panel held that in granting a motion under Federal Rule of
Criminal Procedure 35(b) for a sentence reduction on the
basis of substantial post-sentencing assistance to the
government, the district court did not err by failing to rule
on controverted factual issues in accord with Rule 32(i)(3).
panel held that Rule 35 does not incorporate Rule 32's
requirement that the court make findings on disputed or
controverted matters. Rule 32 pertains to sentencing, and a
Rule 35(b) proceeding is not the equivalent of a de novo
appeal raises a novel legal issue: When considering a motion
to reduce a sentence under Federal Rule of Criminal Procedure
35(b), must a court rule on controverted issues in accord
with Federal Rule of Criminal Procedure 32(i)(3)?
2000, John Doe pleaded guilty to soliciting the murders of
two of his associates. In a sworn plea agreement, Doe
acknowledged that he had induced two co-conspirators to
commit the murders, and the court sentenced him to forty
years in jail. After sentencing, Doe gave the government
information that enabled it to obtain guilty pleas from his
co-conspirators. During discussions with the government, Doe
backed away from the factual basis for his guilty plea,
alternately claiming that he had nothing to do with the
murders or that he did not orchestrate the murders.
Doe's contribution, the government filed a motion under
Rule 35(b), which allows a court to reduce a sentence if a
defendant provides "substantial" post-sentencing
assistance to the government. During the Rule 35(b)
proceedings, both parties stipulated to numerous documents in
the record. One of the government's documents noted that
while Doe admitted to providing an alibi for a
co-conspirator, he denied soliciting the murders.
district court granted the motion and reduced Doe's
sentence by six years, basing the extent of the reduction in
large part on the "value" of Doe's substantial
assistance to the government. The court noted that the
co-conspirators did not mastermind the murders and that,
although Doe didn't personally carry out the murders, it
was likely they would not have occurred without his
involvement since he thought of the plan. The court also
explained that ...