PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. FREDERICK H.K. BAKER, Defendant - Appellant. No. 13-1042

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:11-CR-00070-PAB-1)

Warren R. Williamson, Federal Public Defender and Jill M. Wichlens, Assistant Federal Public Defender, Denver, Colorado, for Defe ndant-Appellant Frederick H.K. Baker. John F. Walsh, United States Attorney and Robert Mark Ru ssel, Assistant United States Attorney, Denver, Colorado , for Plaintiff-Appellee United States of America.

Before KELLY, EBEL, and PHILLIPS, Circuit Judges.

EBEL , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### October 28, 2014
Elisabeth A. Shumaker Clerk of Court2 Rule 35(b), Fed. R. Crim. P., authorizes the district court, upon the Government’s motion, to reduce a previously imposed sentence if the defendant, after sentencing, provided substantial assistance to the Government in investig ating or prosecuting another person. Generally the Government must file a motion for a sentence reduction within the year following sentencing. But Rule 35(b)(2)(B ) permits the Government to file a motion more than one year after the court sentenced the defendant if his “substantial assistance involved . . . informati on provided . . . to the government within one year of sentencing, but which did not become useful to the government until more th an one year after sentencing.” The question presented here is whether the informa tion that DefendantAppellant Frederick Bake r provided “did not b ecome useful to the government until more than one year after [h is] sentencing.” Id. Because th e Government indicated that the information Baker provided was useful both be fore and after the one-year anniversary of his sentencing, the district court concluded that it lacked jurisdic tion to reduce Baker’s sentence under Rule 35(b)(2)(B). Exercising jurisdiction under 18 U.S.C. § 3742(a)(1), see United States v. McMilla n, 106 F.3d 32 2, 324 n.4 (10th Ci r. 1997), we AFFIRM. 1
I. BACKGROUND In February 2011, the United States i ndicted Baker and his co-defendant Mark Akins on eighty offenses stemming from an allegedly fraudulent investment scheme.

1 After examining the briefs and appellate reco rd, this panel determin ed unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Ci r. R. 34.1(G). The case wa s therefore ordered submitted without oral argument.3 Baker pled guilty to two of th e charged offenses and the dist rict court, in October 2011, sentenced him at the bottom of the advisory guideline range, to forty-one months in prison. Three weeks after se ntencing, Baker met with pros ecutors, provided information about his and his co-defendant Akins’s role in the charged fraud, and offered to testify against Akins. At the conclusion of that me eting, an assistant United States attorney (“AUSA”) told Baker and his attorney that the AUSA “would recommend a reduction of Baker’s sentence in light of the interview and his cooperation.” (R. v.2 at 12 ¶ 6.) Baker’s co-defendant Akins later pled gu ilty to two of the ch arged offenses and the district court sentenced hi m to twenty-seven months in prison. Akins’s guilty plea and sentencing occurred within one year of Baker’s sentencing. Twice during this oneyear period, Baker and his attorney asked the Government to file a Rule 35(b) motion to reduce Baker’s sentence. But because the Go vernment thought it still might need Baker’s testimony during Akins’s res titution hearing, the Governme nt delayed filing the Rule 35(b) motion. As it turned out, the Govern ment did not need Baker’s testimony during the restitution hearing. After that hearing, which occurred in Novemb er 2012, more than one year after Baker’s sentencing, Baker and his attorney again asked the Government to file a Rule 35(b) motion on Ba ker’s behalf. The Government did so on January 28, 2013, more than fifteen months after Baker’s sentencing. Because the Government had waited more th an one year to f ile the Rule 35(b) motion, however, the district c ourt’s jurisdiction to consider that motion was limited. See Fed. R. Crim. P. 35(b)(2). (The Government did not realize this until it began preparing4 the motion.) The Government, therefore, f iled the motion under Ru le 35(b)(2)(B), which permits the district court to reduce a defendant ’s sentence if he pr ovided the Government with information within one year of his sent encing, but the informa tion “did not become useful to the government until mo re than one year after senten cing.” The district court, however, concluded it did not have jurisdiction to consider that motion because the Government acknowledged that the informati on Baker provided was us eful both before and after the one-year mark. Baker appeals that decision. 2
II. STANDARD OF REVIEW We review de novo the district court’s de termination that it lacked jurisdiction to consider the Government’s Rule 35(b) motion. See United States v. Luna-Acosta, 715 F.3d 860, 864 (10th Cir. 2013). III. DISCUSSION A. Rule 35’s requirements are jurisdictional “Federal courts are courts of limited ju risdiction.” United States v. Blackwell, 81 F.3d 945, 946 (10th Ci r. 1996) (internal quotation marks omitted). And they “generally lack jurisdiction to modify a term of impr isonment once it has been imposed.” United States v. Graham, 704 F.3d 1275, 1277 (1 0th Cir. 2013) (citing Dillon v. United States, 560 U.S. 817, 819 (2010)); see also 18 U.S.C. § 3582(c). “[A] district court is authorized to modify a defendant’s sentence only in specified instances where Congress has

2 We GRANT Baker’s motion to file his opening brief under seal and seal the Government’s answer brief as well.5 expressly granted the court juri sdiction to do so.” United Stat es v. Price, 438 F.3d 1005, 1007 (10th Cir. 2006) (internal quota tion marks, alterations omitted). Congress expressly granted district courts limited jurisdiction to modify sentences in 18 U.S.C. § 3582(c). See United States v. Green, 405 F.3d 1180, 1184 (10th Cir. 2005). The part of that stat ute pertinent here provides th at a district “court may not modify a term of imprisonment once it has been imposed except that . . . the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rule s of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). Like § 3582(c), Rule 35’s requirements are jurisdictional. See United States v. Addonizio, 442 U.S. 178, 189 (1979 ) (holding time limits in prior version of Rule 35 are jurisdictional); United States v. McGaughy, 670 F.3d 1149, 1151, 1155-58 (10th Cir. 2012) (joining all other circuits th at have addressed the question and holding that Rule 35(a)’s fourteen-day time limit for correcting arithmetical, technical or clear errors is jurisdictional). B. Rule 35(b)(2)(B) does not provide the district court wi th jurisdiction to reduce Baker’s sentence under the ci rcumstances presented here The time limits relevant in this case are found in Ru le 35(b). Rule 35(b)(1) provides the district court with jurisdicti on to reduce a defendant’s sentence, upon the Government’s motion, so long as the Governme nt files its motion within one year of the defendant’s sentencing. Rule 35(b)(2) exte nds jurisdiction beyond the one-year time period under limited circumstances. See Un ited States v. Orozco, 160 F.3d 1309, 1313-6 14 (11th Cir. 19 98) (addressing prior version of Rule 35(b)). In this case, the Government filed its motion to reduce Baker’s sentence unde r Rule 35(b)(2)(B), which as previously mentioned provides that, [u]pon the government’s motion made mo re than one year after sentencing, the court may reduce a sentence if th e defendant’s substantial assistance involved:

. . . . (B) information provided by the defend ant to the government within one year after sentencing, but whic h did not become useful to the government until more than on e year after sentencing. Here, there is no dispute that Baker provided the Government with the relevant information within one year of his sentencing. The question, then, is whether Baker’s “information . . . did not become useful to the government within one year after sentencing.” (Emphasis added.) That qu estion is resolved by the Government’s concession, in its Rule 35(b)(2)(B) motion, th at the information that Baker provided it was useful both before and after the one-year a nniversary of his senten cing. In support of that concession, the Government further re presented to the district court that Baker’s information assisted in tria l preparation, plea negotiations and sentencing—all of which took plac e within the year after Baker’s sentencing. The information was also useful, however, in preparation for and in conducting the three day restitu tion hearing in this matter, which took place outside the year after Baker’s sentencing hearing. (R. v.2 at 16 ¶ 12.) 3

3 See also R. v.2 at 14 ¶ 11(1) (stating Bake r’s “information enabled the government to refine its determination of losses attributable to Akins thereby assisting the government in7 Rule 35(b)(2)(B)’s language—“did not be come useful to the government until more than one year after sentencing”—does not include information that was useful both before and after the one-year mark; that is, information that was useful before the oneyear mark and continued to be useful thereafte r. In particular, the Rule’s use of the word “until” denotes the time at which the in formation first became “useful” to the
Government. This reading of Rule 35(b)(2)(B) is cons istent with the purpose and structure of Rule 35(b) generally. Rule 35(b)(1)’s usual one-year de adline for filing motions to reduce a sentence promotes finality and enc ourages defendants promptly to disclose information they have to th e Government. See Rule 35, Advisory Committee Notes to 2002 amendments. While Rule 35(b)(2) permits the Govern ment to file a motion for a sentence reduction more than one year afte r sentencing, it does so only in limited circumstances that do not detract from the Rule’s underlying purposes when, for example, the defendant does not know the in formation within Rule 35(b)(1)’s one-year time frame, see Rule 35(b)(2)(A); or th e defendant “could not reasonably have anticipated” within the one-year time period that the inform ation he had wo uld be useful to the Government, Rule 35(b)(2)(C); or th e defendant provided the information within one year of his sentencing, but the informati on “did not become useful to the government

plea negotiations and sentencing and restitution proceedings relating to Akins”); id. at 15 ¶ 11(5) (“The information provid ed by Mr. Baker was related fa r enough in advance to be effectively utilized in trial preparation, plea negotiations and plea and sentencing proceedings, and the restitution hear ing pertaining to Mr. Akins.”).8 until more than one year afte r sentencing,” Rule 35(b)(2)(B ). In light of the clear language of Rule 35(b)(2), th en, as well as the structure a nd underlying purp oses of Rule 35(b), we conclude that the circumstances presented here—where Baker provided the Government with information that was us eful both before and after the one-year anniversary of his sentence—do not fall within the jurisdiction Rule 35(b)(2)(B) provides a district court to reduce sentences. 4 The parties suggest, instead, that Baker’s “information . . . did not become useful to the government” until the full extent of hi s assistance was known to the Government,

4 On appeal, the Government, for the firs t time, seems to ba ck away from its representations to the district court that th e information Baker provided it was useful both before and after the one-year anniversary of Baker’s sentenci ng. Instead, on appeal, the Government asserts that, while some of the information that Baker gave the Government was useful before the one-year mark, other information Baker provided was not useful until the restitution hearing, whic h occurred more than one year after Baker’s sentencing. But the Government does not explain in any detail exactly what information became useful to it only after the one-year annivers ary of Baker’s sentence . (Aple. Br. at 2 (stating “specifically, (1) the part of [Baker’s] statement that helped the government determine the amount of res titution sought for each investo r, and (2) his expression of willingness to testify at his codefendant’s re stitution hearing”).) In light of its several previous representations to the district c ourt that the information Baker provided was useful both before and afte r the one-year mark, the Government’s vague argument on appeal—that some of the information was useful before the one-year mark, but some of it was not—is insufficient to establish that the di strict court had jurisdiction to consider the Government’s Rule 35 motion to reduce Baker’s sentence. This conclusion is bolstered by the fact that, when Baker ma de a similarly vague argument to the district court, the district court declined to address it because only the Government can make a Rule 35(b) motion to reduce the defendant’s sentence, see Blackwell, 81 F.3d at 948. But the court gave the Government an opport unity to file a motion for re consideration explaining what information Baker provided it that did not become usef ul until after the one-year anniversary of Baker’s sentencing. The Gove rnment, however, did not take advantage of that opportunity. And Baker has abandoned this argument on appeal.9 after his co-defendant’s restitution proceed ings concluded more than one year after Baker’s sentencing. 5 But Rule 35(b)(2)(B) expressly extends jurisdiction beyond Rule 35(b)(1)’s one-year deadline only when the defendant’s “substa ntial assistance involved . . . information . . . which di d not become useful to the g overnment until more than one year after sentencing.” (Emphasis added.) Congress could have provided otherwise, by expressly giving district courts jurisdiction to reduce a defendant’s sentence, for instance, when the information the defendant provided c ontinued to be useful to the Government

5 In making this suggestion to the district court, the parties re lied primarily on United States v. Riley, No. 07-189-G ZS, 2011 WL 767638 (D. N.H. Fe b. 28, 2011) (unreported). In that case, the defendant Riley, after hi s sentencing, provided the Government with information about two other indi viduals, Edward and Elaine Br own; Riley also offered to testify against each of them at their trial and sentencing procee dings. Id. at *1. One of the sentencings occurred before the one-year anniversary of Riley’s own sentencing proceeding, but the other occurred after th e one-year mark. Id. Ultimately, the Government did not call Riley as a witness in any of those proceedings. Id. After the sentencing proceedings were over, more than one year after Riley’s sentencing, the Government filed a motion to reduce Riley’s senten ce. Id. The district court held that it had jurisdiction, under Rule 35(b)(2)(B), to consider that motion because the Government could not have known, within one year, of “the extent” of the value of Riley’s assistance. Riley, 2011 WL 767638 at *1-*2. There are several other unreported district court cases making similar determinations. See United St ates v. Bond, No. 01 CR 1140(LBS), 2005 WL 2347843, at *1 (S.D. N.Y. Sept. 23, 2005) (unreported) (holding district court had jurisdiction to reduce defenda nt’s sentence under Rule 35(b)(2)(B) where defendant began providing the Government with informa tion within one year of his sentence, but that information “did not become useful to the government until his testimony [given at trial] more than one year la ter”); United States v. McMulla n, No. 1:01-CR-26, 2005 WL 2017968, at *1 (W.D. Mich. Aug. 22, 2005) (unreported) (holding, without discussion, that district court had jurisdiction to reduc e defendant’s sentence under Rule 35(b)(2)(B) where defendant provided the Government with informati on both before and after his sentencing, but he had to wait ove r a year to testify). To the extent that any of these cases may be in tension with our opi nion, we simply note that th ey are not binding precedent for our court.10 both before and after the one-year mark or when the extent of the information’s usefulness could not be fully determined by th e one-year deadline. But Congress did not do so and we are left to apply the rule as C ongress wrote it. See United States v. Carey, 120 F.3d 509, 513 (4th Cir. 19 97) (applying prior version of Rule 35(b) according to its “unambiguous text”). The Government concedes that, under the ci rcumstances presented here, if it could not have measured the usefulness of Baker’s assistance before his co-defendant’s restitution hearing, which occurred more than one year after Baker’s sentencing, the Government could have filed a Rule 35(b) motion within the year following Baker’s sentencing, in order to preserve the district court’s jurisdiction under Rule 35(b)(1) to reduce Baker’s sentence, and then ask the dist rict court to wait to address that motion until the full extent of Baker’s assistance was known to the Government. See Orozco, 160 F.3d at 1310 n.1 (11th Cir.) (discussing such a procedure); see also United States v. Ruiz, No. 07-00301 HG-01, 2013 WL 3760649, at *1 (D. Haw. July 16, 2013) (unreported). As the Government acknowledge s, however, it did not realize the need to do so in this case until it was too late. For the foregoing reasons, then, we conc lude that the circ umstances presented here—where Baker provided information that was useful to the Government both before and after the one-year anniversary of his se ntencing—do not fall w ithin the jurisdiction that Rule 35(b)(2)(B) prov ides the district court to reduce sentences.11 C. We cannot grant Baker’s request to extend the jurisdic tion that Rule 35(b)(2)(B) provides the district court be yond the Rule’s express terms On appeal, Baker urges this court to ex tend Rule 35(b)(2)(B)’s jurisdiction beyond the rule’s express terms so that it applies to the circum stances presented here, where Baker provided information that continued to be useful to the Government after the oneyear anniversary of his sentencing. In maki ng this argument, Baker relies on, e.g., United States v. Morales, 52 F.3d 7 (1st Cir. 1995). Morales addressed a prior version of Rule 35(b) which permitted the Govern ment to file a motion to re duce a sentence more than one year after sentencing “where the defe ndant’s substantial a ssistance involves information or evidence not known by the defendant un til one year or more after imposition of sentence.” 52 F. 3d at 8 n.2. Although De fendant Morales knew of the information she provided the Government within one year of her sentencing, the First Circuit interpreted the rule br oadly, holding that “until beco ming aware of its value, or being specifically asked, a defendant cannot be said to ‘know’ useful information.” Id. at 8. Several other circuits, however, declined to follow Morales in extending the prior version of Rule 35(b) beyond its clear and e xpress terms. See Orozco, 160 F.3d at 1313- 16 & 1315 n.9 (11t h Cir.); Carey, 120 F.3d at 511-13 (4th Cir.); Un ited States v. Evans, No. 95-5144, 1996 WL 167484, at *5 (10th Cir. Ap r. 10, 1996) (unpublished). Similarly, we decline to ex tend Rule 35(b)(2)(B) beyond its clear terms. Those terms are jurisdictional. See McGaughy, 670 F.3d at 1151, 1155-58. And the district court only has jurisdiction to modify a previously imposed se ntence if Congress gives the12 court such jurisdiction. See Blackwell, 81 F.3d at 947. “We are not at liberty to add terms or posit an interpretation that differs from the explicit language of Rule 35(b), particularly when we can decide this case wi thin the plain terms of the rule.” Orozco, 160 F.3d at 1316 (11th Cir.); see also Ca rey. 120 F.3d at 513 (4th Cir.) (applying “unambiguous text” of Rule 35(b)). IV. CONCLUSION For the foregoing reasons, we AFFIRM th e district court’s conclusion that it lacked jurisdiction to consider the Govern ment’s Rule 35(b)(2)(B) motion to reduce Baker’s sentence. It is unfor tunate for Baker that the Government’s delay in filing the Rule 35(b) motion precludes him from reaping any sentencing benef it from the assistance he provided the Government. But beca use Rule 35(b)(2)(B)’s requirements are jurisdictional, the district court has no power now to reduce Baker’s se ntence. Though of no comfort to Baker, we note that the Governme nt, in any event, sought only a six-month reduction of Baker’s bottom-of-the-gui deline, forty-one-month sentence.