FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN DOE,

Defendant-Appellant.

No. 14-10147

D.C. No.

3:95-cr-00319- MMC-7

OPINION

Appeal from the United States District Court

for the Northern District of California

Maxine Chesney, District Judge, Presiding

Submitted March 15, 2016*

San Francisco, California

Filed August 9, 2016

Before: M. Margaret McKeown, Kim McLane Wardlaw,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. DOE

SUMMARY**

Criminal Law

The 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).

The 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

sentencing.

COUNSEL

Walter K. Pyle, Berkeley, California, for DefendantAppellant.

J. 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.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. DOE 3

OPINION

McKEOWN, Circuit Judge:

This 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)?

In 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 coconspirators. 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. 

Recognizing 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.

The 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
4 UNITED STATES V. DOE

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 Doe’s sentence had to

be considerably longer than the sentences of his coconspirators, who acted at his instigation.

The district court did not rule explicitly on which version

of the facts—the admissions in Doe’s plea agreement or the

various accounts Doe later provided to the government—was

accurate when it granted the government’s Rule 35(b)

motion. Doe did not object to the court’s evaluation of the

evidence during the Rule 35(b) hearing. He now argues that

the district court committed plain error by failing to explicitly

determine the true facts under Rule 32(i)(3).

We conclude that there was no error, let alone plain error,

as Rule 35 does not incorporate Rule 32’s requirement that

the court make findings on disputed or controverted matters.

ANALYSIS

We have jurisdiction over a Rule 35(b) order if the

defendant alleges that the sentence reduction “was imposed

in violation of law,” 18 U.S.C. § 3742(a)(1), but not over “the

[district] court’s exercise of its discretion in choosing the

amount of the sentence reduction awarded.” United States v.

Tadio, 663 F.3d 1042, 1045 (9th Cir. 2011). Because Doe’s

arguments target the legality of the district court’s Rule 35(b)

order, not the court’s exercise of its discretion as to the

degree of reduction, we have jurisdiction under § 3742.

The crux of this appeal rests on Doe’s argument

concerning the intersection of two Federal Rules of Criminal

Procedure. The first, Rule 35(b)(1), allows a court to reduce
UNITED STATES V. DOE 5

a defendant’s sentence “[u]pon the government’s motion

made within one year of sentencing . . . if the defendant, after

sentencing, provided substantial assistance in investigating or

prosecuting another person.” Fed. R. Crim. P. 35(b)(1). The

second, Rule 32(i)(3)(B), states that a court “at sentencing”:

must—for any disputed portion of the

presentence report or other controverted

matter—rule on the dispute or determine that

a ruling is unnecessary either because the

matter will not affect sentencing, or because

the court will not consider the matter in

sentencing.

According to Doe, Rule 32’s requirement that

district courts address any “controverted

matter” at sentencing applies with equal force

to Rule 35(b) proceedings. Thus, he argues,

the district court plainly erred by failing to

determine whether Doe in fact solicited the

murders.

Unfortunately for Doe, his theory does not hold water. 

We start with the text of the two rules. As the title of Rule 32

underscores, subsection (i)(3)’s fact-finding mandate applies

to “[s]entencing and [j]udgment,” see Begay v. United States,

553 U.S. 137, 146 (2008) (looking to title of statute to

interpret statutory language), whereas Rule 35(b) comes into

play only if the defendant provides substantial assistance

“after sentencing.” By their plain terms, Rules 32 and 35(b)

apply to different parts of the post-conviction process. Rule

32’s requirements pertain to sentencing, separately from the
6 UNITED STATES V. DOE

time Rule 35(b) kicks in.1In other words, the district court

did not plainly err by failing to rule on disputed facts when it

ruled on the government’s Rule 35(b) motion because the

parties were not “at sentencing.”2

This interpretation accords with our conclusion in Tadio

that a Rule 35(b) proceeding “is not the equivalent of a de

novo sentencing.” 663 F.3d at 1055. Other circuits similarly

recognize that a Rule 35(b) order “modifies [a defendant’s]

existing sentence rather than imposes an entirely new

sentence,” United States v. Hardman, 778 F.3d 896, 901

(11th Cir. 2014), and acknowledge that there are key

“procedural differences between original sentencing

proceedings and modification proceedings,” United States v.

Lightfoot, 724 F.3d 593, 597 (5th Cir. 2013). The Supreme

Court, too, has characterized modification proceedings in an

analogous situation as distinct from “plenary resentencing

1 Of course, the parties can be “at sentencing” if an appellate court

vacates the original sentence and remands for re-sentencing. That is not

the procedural posture of this case.

 

2

 Some circuits, including ours, “have allowed violations of Rule 32 to

be addressed in timely Rule 35 motions.” United States v. Angiulo,

57 F.3d 38, 41 (1st Cir. 1995) (collecting cases); see also United States v.

Roberson, 896 F.2d 388, 388 (9thCir. 1990), amended on reh’g, 917 F.2d

1158 (9th Cir. 1990) (holding that Rule 32 claim that presentence report

was inaccurate could be raised in Rule 35 motion). But as explained in

Angiulo, “[t]his avenue of review . . . is properly seen as founded on

former Rule 35(a), . . . [which] permits a district court to ‘correct a

sentence imposed in an illegal manner.’” 57 F.3d at 41 (quoting former

Rule 35(a)); see also Roberson, 896 F.2d at 388 (applicable Rule 35

motion was for “correction of illegal sentence”). Doe does not argue that

his underlying sentence was “imposed in an illegal manner”; instead, he

argues that the subsequent Rule 35(b) proceedings were flawed. Thus,

Roberson and the line of cases cited in Angiulo are not applicable.
UNITED STATES V. DOE 7

proceedings.” Dillon v. United States, 560 U.S. 817, 827

(2010) (discussingmodification proceedings under 18 U.S.C.

§ 3582(c)(2), which allows courts to modify a sentence based

on a Guidelines range subsequently lowered by the

Sentencing Commission). Indeed, Doe’s counsel repeatedly

emphasized the distinction between sentencing and a postsentence reduction, stating during the Rule 35(b) hearing that

a Rule 35 hearing is not a plenary resentencing, adding that

the court is not going to sentence Doe in any genuine manner,

and concluding that the parties were not before the court for

a sentencing.

Apart from the text of the rules, there are other important

differences between a Rule 35(b) proceeding and sentencing

under Rule 32. Significantly, the availability of a Rule 35(b)

reduction is contingent on the discretion of the government,

whereas all criminal defendants go through sentencing

proceedings under Rule 32. See Pepper v. United States,

562 U.S. 476, 502 n.15 (2011) (“[A] defendant with nothing

to offer the Government can gain no benefit from Rule

35(b).”). Unlike in sentencing proceedings, district courts are

permitted, but not required, to consider the sentencing factors

outlined in 18 U.S.C. § 3553(a) when ruling on a Rule 35(b)

motion. See Tadio, 663 F.3d at 1052. Another key

distinction is that defendants are constitutionally entitled to

be present at sentencing, see Brewer v. Raines, 670 F.2d 117,

118–19 (9th Cir. 1982), but need not be present when “[t]he

proceeding involves the correction or reduction of a sentence

under Rule 35 or 18 U.S.C. § 3582(c),” Fed. R. Crim. P.

43(b)(4).

By asking the district court to choose between the

legitimacy of the facts set forth in his plea versus his laterproffered testimony, Doe attempts to do indirectly what he is
8 UNITED STATES V. DOE

precluded from doing directly: challenge the extent of the

district court’s sentence reduction. And this, of course, is an

argument over which we would lack jurisdiction. See Tadio,

663 F.3d at 1045 (noting that we lack jurisdiction to review

the extent of the ultimate reduction in sentence on a Rule

35(b) motion).

The district court founded its sentence reduction on the

“value” of Doe’s information that led to the conviction of his

co-conspirators after evaluating all of the documents and

statements provided by the parties and considering the

§ 3553(a) factors. The court had no obligation under either

Rule 32 or Rule 35 to make specific findings regarding

factual contradictions spawned by Doe himself.3

AFFIRMED.

 

3

 We also reject Doe’s argument that judicial estoppel prevents a court

from taking inconsistent positions; judicial estoppel is a doctrine that

applies to the parties, not the court. New Hampshire v. Maine, 532 U.S.

742, 750–51 (2001). In any event, we disagree with Doe’s premise that

the court acted inconsistently.