Government Under No Obligation To Provide All Possible Factual Bases for Sentence Reduction In Rule 35 Motion

United States v. Grant, No. 06-40915 (5th Cir. June 1, 2007) (Jones, Benavides, Stewart)

UPDATE: On July 11, 2007, the panel granted a petition for rehearing in part, withdrew its original opinion, and substituted a new one. The link above has been changed to the new opinion, which doesn't appear to contain any substantive changes.

Grant was sentenced to 151 months' imprisonment for possessing marijuna with intent to distribute. While serving his sentence, Grant began cooperating with the DEA in Investigation A. The Government filed a Rule 35 motion to reduce his sentence on that basis. At the time of the Rule 35 hearing, Grant was also cooperating in Investigation B. However, neither the Government nor Grant's counsel mentioned his cooperation in Investigation B (and Grant wasn't present at the hearing). The district court granted the motion and reduced Grant's sentence to 120 months.

Several months later Grant filed a "Motion for Further Reduction of Sentence" on the ground that the Government failed to advise the district court of his cooperation in Investigation B at the time of the Rule 35 hearing. The Government admitted that Grant had been providing information in Investigation B, but argued that his assistance did not warrant any further sentence reduction because the information ultimately wasn't useful. The district court declined to reduce Grant's sentence any further, concluding that it lacked the authority to do so absent a new Rule 35 motion by the Government.

Grant appealed, raising two issues. First, he argued that "the government’s failure to apprise the district court of his continuing assistance with [Investigation B] requires the court to reconsider the extent of relief given." The court of appeals disagreed. It acknowledged that once the Government makes the motion, it's up to the district court to decide whether and how much to reduce a sentence. Nevertheless,

[w]hile the government may have been required to give the court accurate information as to the individuals on which it based its Rule 35 motion, Grant is incorrect that the government also had to apprise the court of his assistance in other investigations. Because the government was not moving for a reduction of sentence as to [Investigation B], a decision which is not reviewable by this court absent a showing by Grant of illicit motive, it was under no duty to supply the court with information regarding that case.

Grant's second argument was that his motion should have been treated as a § 2255 petition. The court held that even if the motion could have been so construed, there was no basis for relief.