PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-7316

RICARDO GEORGE CAREY, a/k/a Ricki,

a/k/a Ruboy, a/k/a Ron Smith,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-7317

ANTHONY STREET,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CR-94-156-F)

Argued: May 8, 1997

Decided: August 18, 1997

Before NIEMEYER and MOTZ, Circuit Judges, and

FABER, United States District Judge for the

Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Motz and Judge Faber joined.

_________________________________________________________________
COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., Assistant Federal Public

Defender, Raleigh, North Carolina, for Appellant Carey; Alice Carson

Stubby, STUBBY, PERDUE & AKERS, Raleigh, North Carolina, for

Appellant Street. Anne Margaret Hayes, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON

BRIEF: Janice Mackenzie Cole, United States Attorney, Christine B.

Hamilton, Assistant United States Attorney, Raleigh, North Carolina,

for Appellee.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Pursuant to a plea agreement to cooperate with the government,

Ricardo Carey and Anthony Street supplied important information to

the government about a drug conspiracy that the government was then

investigating, but they did so more than one year after they were sentenced for their own drug-related crimes. The government promptly

filed a motion under Federal Rule of Criminal Procedure 35(b) to

reduce their sentences, arguing that Rule 35(b) as interpreted in light

of the Advisory Committee Note excuses its late filing because the

investigation on which Carey and Street cooperated could not have

been undertaken in time and that therefore they could not have cooperated within one year of their sentences. The district court refused to

consider the motion, however, relying on the strict language of Rule

35(b) to conclude that considering the motion would be beyond its

jurisdiction. We affirm.

I

Pursuant to a plea agreement, Carey and Street pled guilty to conspiracy to distribute and possess with intent to distribute crack

cocaine in the Raleigh, North Carolina area during a ten-month period

in 1992. Carey was sentenced to 218 months imprisonment on July

5, 1995, and Street to 292 months on June 1, 1995. Also pursuant to

their plea agreement, Carey and Street agreed to provide assistance to

the government in connection with other prosecutions.

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On July 8, 1996, a few days more than one year after Carey and

Street were sentenced, the United States Attorney for the Eastern District of North Carolina began a new drug-related investigation based

on information supplied by the Drug Enforcement Agency in Miami,

Florida. At that time, and for the first time, the United States Attorney

learned that Carey and Street could be of assistance in prosecuting the

new target. She promptly filed a motion under Federal Rule of Criminal Procedure 35(b) for a downward departure of Carey's and Street's

sentences in anticipation of their substantial assistance, relying on

U.S.S.G. § 5K1.1, and requested that the court hold disposition of the

motion in abeyance until the extent of the defendants' cooperation

could be assessed. Explaining the late filing of the motion, she stated,

"even though one year has passed since the defendants' sentences,

there was not an investigation of this new target until July 8, 1996.

Therefore, the defendants could not have assisted until this time."

The district court denied the motion, holding that Rule 35(b) did

not apply where the information sought had been known by the defendants before the expiration of one year. It concluded that it had "no

authority under the law to consider the Government's Rule 35 motion

under the circumstances presented." The district court rejected the

parties' argument that the Advisory Committee Note to Rule 35(b)

authorized a reading that would allow the late motions for any reason

where a defendant's assistance "could not have" been provided within

one year. The court explained, "The rule itself, the authority which

binds the court, supports the court's reading of the Advisory Committee Note" that motions made beyond one year can be considered only

when a defendant's assistance involves information not known until

one year or more after sentencing.

While Carey and Street have appealed the district court's ruling,

we have the anomalous situation where the government, even though

appearing as appellee, joins the appellant in arguing that the district

court's decision should be reversed.

II

Federal Rule of Criminal Procedure 35(b) authorizes the court, on

the motion of the government, to reduce a sentence to reflect a defendant's substantial assistance, provided that the motion is "made within

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one year after the imposition of the sentence." The rule also authorizes a relaxation of the one-year limitation as follows:

The court may consider a government motion to reduce a

sentence made one year or more after imposition of the sentence where the defendant's substantial assistance involves

information or evidence not known by the defendant until

one year or more after imposition of sentence.

Fed. R. Crim. P. 35(b). Thus, if substantial assistance forming the

basis of a downward departure motion involves information or evidence that the defendant knew within the one-year period after his

sentencing, he is not entitled to have the one-year limitation relaxed.

The parties agree that the information available from Carey and

Street was known by them within the one-year period after their sentencing and that therefore a literal reading of the rule would bar any

downward departure based on a motion filed more than one year after

their sentencing. Both the government and Carey and Street argue,

however, that such a literal interpretation would frustrate the spirit,

purpose, and policy of the rule, denying both the government and the

defendants the benefits intended by the rule. They urge accordingly

that the rule be construed to authorize a downward departure where

a defendant could not have cooperated with the government within

the one year. Both the government and Carey and Street argue that the

Advisory Committee Note to Rule 35 supports their relaxed reading

of the rule, a position adopted by the First Circuit in United States v.

Morales, 52 F.3d 7, 8 (1st Cir. 1995) (holding that a defendant does

not "know" information within the meaning of Rule 35(b) "until

becoming aware of its value or being specifically asked").

We recognize the appeal of the argument in which both parties

join, that a liberal reading of Rule 35 would serve the government's

interest in obtaining the defendants' cooperation to be able to bring

other law breakers to justice and the defendants' interest in receiving

reduced sentences. Insofar as the policy of Rule 35 applies to the parties, therefore, their interpretation of Rule 35 would yield a win-win

result. The argument, however, overlooks any purpose that the rule

might serve beyond the immediate interests of the parties now before

us. If the rule had only intended to further the policy of cooperation

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in exchange for sentence reductions, it would not have imposed the

one-year limitation. That policy would be served with equal force two

or three years after sentencing or without regard to the time passed

since sentencing.

While Rule 35 includes the policy of rewarding cooperative defendants, the one-year limitation reflects the rule's additional policy of

bringing finality to sentencing at some point in time and of frustrating

manipulation by defendants. When Congress enacted the Sentence

Reform Act of 1984, Pub. L. No. 98-473, it provided truth in sentencing, responding in large part to public skepticism that defendants'

sentences are never fully served. The one-year limitation in Rule

35(b) serves a similar purpose of ending the sentence negotiation process and finalizing the length of a defendant's sentence.

The one-year limitation also provides an incentive to defendants to

come forward promptly with all that they know about illegal conduct,

regardless of whether they appreciate its value to the government.

And, as the district court noted, it guards against sentencing manipulation by defendants:

This time constraint guards against the danger of defendants, seeking only to assist themselves, returning to the

Government years after their sentencing with stale or even

fabricated information about other criminal activity.

Whether we agree with all of the policy considerations or whether

the rule effectively addresses them, we are bound to apply the rule in

the manner in which it is written. See Marex Titanic, Inc. v. Wrecked

and Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993) (confining

interpretation of civil rule to plain meaning of the text).

The parties argue further that the rule's language should be interpreted in light of the Advisory Committee Note to the rule. When that

note is considered, they argue, the rule would properly be interpreted

to relax the one-year limitation when the defendants' assistance

"could not have been" rendered within the one-year period. The Advisory Committee Note to Rule 35(b) provides in relevant part:

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 [Rule 35(b)] also recognizes that there may be those cases

where the defendant's assistance or cooperation may not

occur until after one year has elapsed. For example, the

defendant may not have obtained information useful to the

government until after the time limit has passed. In those

instances, the trial court in its discretion may consider what

would otherwise be an untimely motion if the government

establishes that the cooperation could not have been furnished within the one-year time limit. In deciding whether

to consider an untimely motion, the court may, for example,

consider whether the assistance was provided as early as

possible.

Fed. R. Crim. P. 35(b) Advisory Comm. Note to the 1991 amendment

(emphasis added). They argue that the third sentence, stating that an

otherwise untimely motion may be considered "if the government

establishes that the cooperation could not have been furnished within

the one-year time limit," is not constrained by the second sentence,

which parrots the rule, but rather refers to the first sentence. In other

words, they argue that "[i]n those instances" refers back to "those

cases" in the first sentence, not to the "example" given in the second

sentence. Thus, they conclude that the untimely motion is authorized

by the rule if "the cooperation could not have been furnished within

one-year" for whatever reason.

The parties' argument is a grammatically rational interpretation of

the Advisory Committee Note, but it is not the only interpretation.

The note could also be construed to mean that the third sentence is

constrained by the second which provides the example of a permissibly late motion -- when the defendant has obtained information useful to the government "after the time limit had passed."

If the Advisory Committee Note was the authority controlling this

case, its ambiguity might be resolved in favor of the policy arguments

and legislative history which the parties have called to our attention.

But the Advisory Committee Note is not the law; the rule is. Accordingly, if the Advisory Committee Note can be read in two ways, we

must read it, if we consult it at all, in a manner that makes it consistent with the language of the rule itself, and if the rule and the note

conflict, the rule must govern. Because the rule on the issue before

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us is unambiguous, we need not even consult the note to determine

the rule's meaning.

The rule unambiguously provides that the one-year limitation may

be relaxed only where the information provided by the defendant was

"not known by the defendant until one year or more after the imposition of sentence." See also Fed. R. Crim. P. 45(b) (court may not

extend Rule 35 time period except as provided in Rule 35). This language does not allow for an interpretation that the one-year period

may be relaxed when the information was known during the one-year

period but that the cooperation could not have been provided until

more than one year, for whatever reason.

While the interpretation we apply may frustrate those policies serving the parties, i.e. to reward a defendant's coming forward in

exchange for a sentence reduction in circumstances where the government could not use the information during the one-year period, it furthers the policy of establishing finality and certainty in sentencing and

in precluding the possible manipulation of sentences. Moreover,

under the interpretation urged by the parties, the government would

be allowed to make a Rule 35 motion whenever it determined that the

defendant had provided assistance in a timely manner, no matter how

long after the sentencing and no matter when the information was

acquired. Rule 35(b) does not authorize such broad discretion. On the

contrary, it reflects a balance between the policies argued for by the

parties in this case and the countervailing public interest in the finality

and certainty of sentencing. While the parties propose what looks like

a rational balance between those countervailing interests, we must

apply the authoritative balance embodied in the text of Rule 35(b)

itself.

For the reasons given, we decline to follow the First Circuit, which

held that "until becoming aware of its value , or being specifically

asked, a defendant cannot be said to `know' useful information."

Morales, 52 F.3d at 8 (emphasis added). The unambiguous text provides a one-year limitation with respect to information known to the

defendant, without regard to its usefulness or the defendant's knowledge of its usefulness. Accordingly, we affirm the judgment of the

district court. See also United States v. Evans , No. 95-5144, 1996 WL

167484 at *5 (10th Cir. Apr. 10, 1996) (rejecting"out of hand" an

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argument based on Morales because of its clear conflict with the plain

language of Rule 35); cf. United States v. McDowell, ___ F.3d ___,

1997 WL 348894, at *5 n.7 (7th Cir. 1997) (noting First Circuit's "expansive" and "non-literal" reading of Rule 35 in Morales).

AFFIRMED

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