F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

J O H N D O E , Defendant-Appellant. No. 14-10147

D.C. No. 3:95-cr-00319- MMC-7

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Max ine Chesney , District J udg e , Presiding

Submitted March 15, 2016 * San F rancisco, California

F iled Aug ust 9, 2016

B efore: M. Marg aret McKeown, Kim McL ane W ardlaw,

a nd Richard C. Tallman, Circuit J udg es.
Opinion by

J udg e McKeown

* T h e p an el u n a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).U N I T E D S T A T E S V

. D O E 2

SUMMARY * *

Crim inal Law

The panel held th a t i n g ranting a motion u nder F ederal Rule of Criminal Procedure 35(b) f or a sentence r eduction on t h e b asis of substantial post-sentencing assistance to th e g overnment, the district court did not err by failing to rule on controverted factual issues in accord with Rule 32(i)(3).

T h e p a nel held that Rule 3 5 does n ot incorporate Ru l e 32’s r equirement that the court make f inding s on d isputed o r controverted matter s

. Rule 32 pertains to sentencing
, and a Rule 35(b) proceeding is not the e q u i v a l e n t of a de novo sentencing

.

COUNSEL

W a lter K. Py le, B erkeley
, California, for D efendantAppellant.

J

. Doug las W ilson, Assistant United States Attorney ; B arbara J

. Valliere, Chief, Appellate Division; Melinda Haag
, United States Attorney ; United St a t e s A ttorney ’s Office, San F rancisco, California; for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. D O E 3

OP INION

McKEOW

N, Circuit J udg e:

This appeal raises a novel leg al issue: W hen considering

a motion to reduce a sentence under F ederal Rule of Criminal Procedure 35(b), must a court rule on controver ted issues in accord with F ederal Rule of Criminal Procedure 32(i)(3)?

I n 2000, J o hn Doe p leaded g u ilty to soliciting the murders of two of his associates. I n a s w o r n p lea ag reement, Doe acknowl ed ge d that he had induced two co-conspirators to commit the murders, a n d t h e court sentenced him to forty
y ears in jail. After sentencing
, D o e ga ve the g overnment information that enabled it to obtain g uilty pleas from his coconspirators. During discussions with the g o vernment, Doe backed away from the factual bas i s f or his g uilty plea, alternately claiming that he h ad noth i n g to do with the murders or that he did not orchestrate the murders.

Recog ni z ing Doe’s contribution, the g overnment filed a motion under Rule 35(b), w hich allows a c o u r t t o reduce a sentence if a defendant p ro v i d e s “ s u b s t a n t i a l” post-sentencing assistance to t h e g overnment. During the Rule 35(b) proceeding s, both parties stipulated to numerous documents in the record. One of the g overnment’s documents noted that while Doe admitted to p roviding an a libi for a co-conspirator, he denied soliciting the murders.

The district court g r anted the motion and r e duced Doe’s sentence by six y ears, basing the ex tent of the r eduction in larg e p art on the “value” of D oe’s substantial assistance to the
g overnment. The court noted that the c o-conspirators did not mastermind the murders and that, althoug h Doe didn’tU N I T E D S T A T E S V

. D O E 4

personally carry out the murders, it was likely they would not have occurred without h i s involvement since he thoug ht o f the p lan. T he court also e x plained that Doe’s sentence had to be c o n s iderably long er than the sentences of his coconspirators, who acted at his instig ation.

The d istrict court did not rule ex plicitly on which v ersion of the f acts—the admissions in Doe’s plea ag r eemen t o r the various accounts Doe later provided to the g o v ernment—was accurate when it gr anted the g overnment’s Rule 35(b) motion. D oe did not object t o t h e court’s evaluation of the evidence during the Rule 35(b) hearing

. He now arg ues that the district court c ommitted plain error by failing to ex plicitly determine the true facts under Rule 32(i)(3).

W e conclude that there was no error, let alone plain error,

as Rule 3 5 does not incorporate Rule 32’s requirement that the court make finding s on disputed or controverted matters.

A N A L Y S I S

W e h ave jur i s d i c t ion over a Rule 35(b) order if the defendant alleg es that the sentence re d uction “was imposed in violation o f law,” 1 8 U.S.C. § 3 742(a)(1), but not over “the [ district] c o u r t ’ s ex e rcise of its discretion in choosing the
amount of the sentence reduction awarded.” United States v

. Tadio
, 663 F .3d 1042, 1045 (9th Cir. 2 011). B ecause Doe’s arg uments targ et the leg ality of the district court’s Rule 35(b) order, not t h e c o urt’s ex ercise of its discretion a s to the deg ree of reduction, we have jurisdiction under § 3742.

The crux of this appeal rests on Do e ’ s arg ument concerning the intersection of two F ederal Rules of Criminal Procedure. T he first, Rule 35(b)(1), allows a court to reduceU N I T E D S T A T E S V

. D O E 5

a defendant’s sentence “[ u] pon the g overnment’s motion made within one y ear of sentencing

. . . if the defendant, a fter sentencing
, provided substantial assistance in investig a ting o r prosecuting another p erson.” F ed. R. Crim. P. 35(b)(1). The second, Rule 32(i)(3)(B )
, states that a court “at sentencing ”:

must—for any disputed p ortion of the presentence report or other controverted matter—rule on the dispute or determine that

a ruling is unnecessary either b e c ause the
matter will not affect sentencing
, or because the court will not consider the mat t e r in sentencing

. According to Doe, Rule 32’s requirement that dis t r ict c ourts address a ny “ controverted matter” at sentencing applies with equal force
t o Rule 35(b) proceeding s. Thus, he argu e s , the district court plainly erred by failing t o dete r m i ne whether Doe in fact solicited the murders.

Unfortunately for Doe
, h is theory does not hold water. W e start with the tex t of the two rules. As the title of Rule 32 underscores, subsection ( i)(3)’s fact-finding mandate applies
to “[ s] entencing a

nd [ j] udg ment,” see Begay v. United States
, 553 U.S

. 1 3 7
, 146 (2008) (looking to title of statute to interpret statutory lang uag e), whereas Rule 35(b) c omes into play only if the defendant p r ovides substantial assistance “after sentencing .” B y

their plain terms, Rules 32 and 35(b) apply to different parts of the post-conviction process. Rule 32’s requirements pertain to sentencing
, s e parately from theU N I T E D S T A T E S V

. D O E 6

t i m e Rule 35(b) kicks in. 1 I n other words, the district court did not plainly err by failing to rule on disputed facts w hen it ruled on the g ove r n ment’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) p r o c ee d i n g “is n ot the equivalent of a de

novo sentencing .” 663 F

. 3d at 1055. O ther circuits similarly
recog niz e tha t a Rule 35(b) order “modifies [ a defendant’s]

ex isting sentence rather t h a n imposes an entirely new sentence,” United States v. Hardman
, 778 F .3d 896, 901 (11th Cir. 2 014), and acknowledg e that there are key

“ p r o c e d u ra l d i f

f erences b etween orig inal senten c i n g proceeding s and modification proceeding s,” United States v

. Lightfoot
, 7 2 4 F

. 3d 593, 597 (5th Cir. 2013). The Supreme Court, too, has characteriz e d modification proceeding s in an analog ous situation as distinct f rom “ple n ary resentencing

1 O f c o u rse, th e p arties can b e “ at sen ten cin g ” if an ap p ellate co u r t

v acates th e o rig in al sen ten ce an d rem an d s f o r re- sen ten cin g

. T h at is n o t th e p ro ced u ral p o stu

re o f th is case.

2 So m e circu its, in clu d i n g o u rs, “ h av e allo w ed

v io latio n s o f

Ru le 3 2 to b e ad d ressed in tim ely R u le 3 5 m otio n s .” Un ited S t a tes v. An g iu lo
, 5 7 F .3 d 3 8
, 4 1 (1 st Cir. 1 9 9 5) (co llectin g cases); see a l so Un ited S ta tes v. Ro b erso n , 8 9 6 F.2 d 38 8
, 3 8 8 (9 th Cir. 1 9 9 0 ), a men d ed o n reh ’g
, 9 1 7 F.2 d 1 1 5 8 (9 th Cir. 1 9 9 0 ) (h o ld in g th at Ru l e 3 2 claim th at p resen ten ce rep o rt

w as in accu rate co u l d b e raised i n R u le 3 5 m otio n ). B u t as e x p l a i n ed in An g i u lo
, “ [t]h is av en u e of rev i ew

. . . is p ro p erly seen as f ou n d ed on f o rm er Ru le 3 5 (a),

. . . [w h ich ] p erm i t s a d i s t r ict co u rt to ‘ co rrect a

sen ten ce im

p o sed in an illeg al m an n er.’ ” 5 7 F.3 d at 4 1 (q u ot i n g f o rm er Ru le 35 (a)) ; s ee a lso Ro b erso n , 8 9 6 F.2 d at 3 8 8 (ap p licab le Ru le 3 5

m o tio n w as f

o r “ co rrectio n o f illeg al sen ten ce”). Do e d o es n o t arg u e th at h is u n d erly in g sen ten ce w as “ im p osed in an illeg al m an n er”; in s t e a d
, h e arg u es th at th e s u

b s e q u e nt Ru le 3 5 (b ) p ro ceed i n g s w ere f law ed

. T h u s, Ro b erso n an d th e lin e o f

cases cited in An g iu l o are n o t ap plicab le.U N I T E D S T A T E S V

. D O E 7

proceeding s.” Dillo n v. United States
, 560 U.S. 817, 827 (2010) (discussing modification proceeding s under 18 U .S.C. § 3582(c)(2), which a llows courts to modify a sentence based

on a G uidelines rang e subsequently lowered b y t he Sentencing Commission). I ndeed, Doe’s counsel repeatedly emphasiz ed the distinctio n b e t ween 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 g oing to sentence Doe in any g enuine manner, and concluding that the parties were not before the court for a sentencing

. Apart from the tex t of the rules, there are other important differences between a Rule 35(b) proceeding and sentencing under Rule 32. Sig nificantly
, the availability of a Rule 35(b)

re d u c t ion is conting ent on the discretion of the g overnment, whereas all criminal defendants g o t h roug h sentencing proceeding s under Rule 32. See Pepp e r v. United States
, 562 U.S. 476, 502 n.15 (2011) (“[ A ] defendant with nothing
to offer t h e G o v ernment can g ain n o benefit from Rule 35(b).”). Unlike in sentencing p roceeding s, district courts a re permitted, but not required, to c onsider the sentencing f actors outlined in 1 8 U.S.C. § 3553(a) when ruling on a Rule 35(b) motion. See T

a d i o , 663 F

. 3 d at 1052. Another key distinct i o n i s that defendants a re c onstitutionally e ntitled to be present at sentencing
, see B rewer v. Raines
, 670 F .2d 117, 118–19 (9th Cir. 1982), but need not be present when “[ t] he proceeding involves the c orrection or reduction of a sentence under Rule 35 or 1 8 U .S.C. § 3582(c), ” Fe d

. R. Crim. P. 43(b)(4).

B y a sking the district court to c h o o s e between the leg itimacy of the facts set forth in his p lea v ersus his laterproffered testimony
, Doe attempts to do indirectly w hat h e isU N I T E D S T A T E S V

. D O E 8

p r e c l u ded from doing directly : challeng e the ex tent of th e district c ourt’s sentence r eduction. And this, of course, is an arg ument over which we would lack jurisdiction. See Tadio
, 66 3 F .3d at 1045 (noting that we lack jurisdiction to r eview
t h e ex tent of the ultimate reduction in sentence on a R u l e 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 evaluat i n g a ll o f the documents a nd
statements provided by the parties a nd c onsid ering the § 3553(a) factors. Th e c ourt had no oblig ation u nder either Rule 3 2 o r Rule 35 to make specific finding s reg arding factual contradictions spawned by Doe himself. 3

AF F IRMED.

3 W e also rej ect Do e’ s arg u m en t th at j u d icial esto p p el p rev en ts a co u rt f ro m tak in g in co n sisten t p o sitio n s ; j u d icial esto p p el is a d o ctrin e th at ap p lies to th e p arties, n o t th e co u rt. New Ha m p sh ire v. Ma in e , 5 3 2 U.S. 7 4 2
, 7 5 0

– 5 1 (2 0 0 1 )

. In an y ev en t, w e d isag ree w ith Do e’ s p rem ise th at th e co u rt acted in co n sisten tly

.