FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 10-10144 Plaintiff-Appellee,

D.C. No.

v.  1:07-cr-00486-HG-1

DENNIS TADIO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Hawaii

Helen Gillmor, Senior District Judge, Presiding

Argued and Submitted

February 15, 2011—Honolulu, Hawaii

Filed November 21, 2011

Before: A. Wallace Tashima, William A. Fletcher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge William A. Fletcher

20257
COUNSEL

Harlan Yoshito Kimura, Honolulu, Hawaii, for the appellant.

Thomas J. Brady, OFFICE OF THE UNITED STATES

ATTORNEY, Honolulu, Hawaii, for the appellee.

OPINION

W. FLETCHER, Circuit Judge:

Federal Rule of Criminal Procedure 35(b) authorizes a district court, on the government’s motion, to reduce a defendant’s sentence “if the defendant, after sentencing, provided

substantial assistance in investigating or prosecuting another

person.” The question in this case is whether a district court

may consider factors other than a defendant’s substantial

assistance in determining the amount of a Rule 35(b) sentence

reduction. We hold that once a district court determines that

a defendant has provided substantial assistance to the govern20260 UNITED STATES v. TADIO
ment, the court may consider factors other than assistance,

including those listed in 18 U.S.C. § 3553(a), in order to

ensure that the sentence ultimately imposed accords with the

purposes of sentencing that Congress has articulated. See

§ 3553(a)(2). The sentence imposed must be related to the

degree of assistance rendered, but a district court may consider non-assistance factors in awarding a reduction, whether

that reduction is greater than, less than, or equal to the reduction that a defendant’s assistance, considered alone, would

warrant. 

Here, after considering federal prisoner Dennis Tadio’s

offense conduct and criminal history, the district court granted

a sentence reduction of 24 months, which is what the government had requested based on Tadio’s assistance. Tadio

appeals, contending first that the district court erred by considering non-assistance factors when it decided on the length

of the sentence reduction, and second that the district court

assigned too low a value to the assistance he provided. The

government contends that the district court did not err in considering the non-assistance factors when it decided whether to

grant a sentence reduction greater than what Tadio’s assistance, considered alone, warranted. The government also

argues that if the district court applied the appropriate legal

standard under Rule 35(b), we lack jurisdiction to review the

court’s exercise of discretion in choosing the length of the

sentence reduction. We agree with the government and the

district court. Because the district court applied the correct

legal standard in this case, we affirm its consideration of nonassistance factors and dismiss Tadio’s challenge to the length

of the sentence reduction.

I. Factual and Procedural Background

In November 2007, Dennis Tadio pled guilty to one count

of witness intimidation, in violation of 18 U.S.C.

§ 1512(b)(1), after threatening a witness who was to testify in

the federal murder prosecution of some of Tadio’s criminal

UNITED STATES v. TADIO 20261
associates. The U.S. Probation Officer prepared Tadio’s Presentence Investigation Report (“PSR”) in January 2008. The

PSR calculated an Offense Level of 27. After assessing criminal history points for state convictions for second-degree

assault, prohibited possession of a firearm, unauthorized control of a propelled vehicle, second-degree terroristic threatening, and first-degree criminal trespass, the PSR placed Tadio

in Criminal History Category V. That combination yielded a

Guidelines range of 120-150 months. Because the statutory

maximum sentence for witness intimidation was then 10

years, 18 U.S.C. § 1512(b) (2000) (amended in 2002 and

2008), Tadio’s advisory Guidelines “range” became 120

months. See U.S.S.G. § 5G1.1(c)(1).

After his arrest, Tadio assisted the government in prosecuting several of his former criminal associates. To reward

Tadio’s cooperation, the government moved prior to sentencing for a downward departure to a Guidelines range of 70-87

months. See U.S.S.G. § 5K1.1. In March 2008, the district

court granted the government’s motion and sentenced Tadio

to 87 months.

Tadio continued to cooperate after sentencing. He provided

credible trial testimony that resulted in several convictions.

The government acknowledges that Tadio’s testimony was

given “at great risk to his own personal safety.” While incarcerated at federal facilities in California and Hawaii, Tadio

received both direct and indirect threats of physical violence.

To reward Tadio’s continued cooperation, the government

moved in January 2010, pursuant to Fed. R. Crim. P.

35(b)(2)(B), to reduce Tadio’s sentence by an additional 24

months. Tadio countered by proposing a reduction of 48

months, arguing that the government’s Rule 35(b) motion

failed adequately to capture both the significance of his assistance and the danger he had courted by cooperating. Tadio

also asserted that other people who cooperated in the prosecution of his former criminal associates “received far greater

20262 UNITED STATES v. TADIO
reductions in their sentences even though their testimonies

were not as valuable to the Government.”

The district court granted the government’s motion and

reduced Tadio’s sentence by 24 months, resulting in a 63-

month sentence. The court explained:

[T]he Defendant substantially assisted the Government in the investigation and prosecution of criminal

activity. A reduction of Defendant’s sentence pursuant to Rule 35(b)(2)(B) is appropriate. Based on the

nature of Defendant’s cooperation, the Court grants

a sentence reduction of 24 months. Given the circumstances of Defendant’s criminal conduct, and

Defendant’s prior criminal history, the Court finds a

reduction of 24 months to be consistent with the

Sentencing Guidelines and the Sentencing Commission’s policy statements. 

Tadio moved for reconsideration, arguing that the district

court erred by considering factors other than his substantial

assistance — namely, “the circumstances of [his] criminal

conduct, and [his] criminal history” — when it determined the

extent of the sentence reduction. Relying on United States v.

Doe, 351 F.3d 929, 933 (9th Cir. 2003), the court concluded

that “Tadio’s criminal conduct, as well as his prior criminal

history and previous sentencing reductions” were “relevant

factors that may be weighed when considering a Rule 35(b)

motion.” The court denied Tadio’s motion for reconsideration

and left his 63-month sentence in place. 

Tadio timely appealed.

II. Standard of Review

We determine the existence of our own jurisdiction de

novo. Saavedra-Figueroa v. Holder, 625 F.3d 621, 623 (9th

Cir. 2010). We review the legal question whether a particular

UNITED STATES v. TADIO 20263
factor may be considered in deciding a Rule 35(b) motion de

novo. Doe, 351 F.3d at 932.

III. Discussion

A. Appellate Jurisdiction

We first consider the government’s argument that we lack

appellate jurisdiction. “[T]he exclusive avenue of appeal of

rulings on Rule 35(b) motions is 18 U.S.C. § 3742.” United

States v. Montalvo, 581 F.3d 1147, 1150 (9th Cir. 2009)

(quoting United States v. Arishi, 54 F.3d 596, 599 (9th Cir.

1995)). Section 3742(a)(1) provides that a defendant may

obtain review of a sentence that “was imposed in violation of

law.” In Doe, we held that § 3742(a)(1) conferred jurisdiction

to review the denial of a Rule 35(b) motion where the defendant had argued “that his sentence was imposed in violation

of law because the district court considered factors other than

his substantial assistance to the government.” 351 F.3d at 932.

Tadio advances the same argument. We conclude, as we did

in Doe, that jurisdiction is proper under § 3742(a)(1). See

also, e.g., United States v. Grant, 636 F.3d 803, 809 (6th Cir.

2011) (en banc) (jurisdiction proper under § 3742(a)(1) where

defendant argues that “the district court committed an error of

law by misapprehending the factors it was allowed to consider

in deciding the Rule 35(b) motion”); United States v. Chapman, 532 F.3d 625, 628-29 (7th Cir. 2008); United States v.

Manella, 86 F.3d 201, 202-03 (11th Cir. 1996).

We agree with the government that if the district court’s

consideration of factors other than Tadio’s substantial assistance was proper, such that the sentence imposed was not “in

violation of law,” we lack jurisdiction to review the court’s

exercise of its discretion in choosing the amount of the sentence reduction awarded. See United States v. Pedroza, 355

F.3d 1189, 1190-91 (9th Cir. 2004) (per curiam) (no jurisdiction under § 3742 to review defendant’s claim that district

court “abused its discretion by failing to reduce his offense

20264 UNITED STATES v. TADIO
level, and consequently his sentence, to a degree that he

believes properly reflects the assistance he provided to the

government”); Doe, 351 F.3d at 932; Arishi, 54 F.3d at 597-

98. We therefore dismiss Tadio’s challenge to the amount of

sentence reduction that his assistance warranted and confine

our review to Tadio’s argument that the district court, by considering factors other than his substantial assistance, imposed

a sentence “in violation of law.” See, e.g., Chapman, 532 F.3d

at 628.

B. Factors that May Be Considered in Deciding a Rule

35(b) Motion

[1] A district court “generally ‘may not modify a term of

imprisonment once it has been imposed.’ ” Dillon v. United

States, 130 S. Ct. 2683, 2687 (2010) (quoting 18 U.S.C.

§ 3582(c)). However, Congress has provided several exceptions to this general rule. One exception is that a district court

“may modify an imposed term of imprisonment to the extent

otherwise expressly permitted by statute or by Rule 35 of the

Federal Rules of Criminal Procedure.” 18 U.S.C.

§ 3582(c)(1)(B). Rule 35(b)(1) provides that “[u]pon the government’s motion made within one year of sentencing, the

court may reduce a sentence if the defendant, after sentencing,

provided substantial assistance in investigating another person.” Rule 35(b)(2)(B), the subsection under which the district court reduced Tadio’s sentence, provides that “[u]pon the

government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved . . . information provided by the

defendant to the government within one year of sentencing,

but which did not become useful to the government until more

than one year after sentencing.” 

Tadio argues that the district court improperly weighed his

offense conduct, his prior criminal history, and the § 5K1.1

departure he received at his initial sentencing in deciding to

limit his sentence reduction to 24 months. In Tadio’s view,

UNITED STATES v. TADIO 20265
Rule 35(b) does not allow a court “to rely upon the 18 U.S.C.

§ 3553(a) sentencing factors a second time in determining the

amount of reduction pursuant to the Rule 35(b) motion, the

first time being at the original sentencing hearing.” The government responds that a district court cannot “rule in a vacuum, absent critical factors,” and that Rule 35(b) “does not

prohibit the consideration of [the 18 U.S.C.] § 3553(a) factors

in deciding to what extent a defendant’s sentence should be

reduced for substantial assistance.” We agree with the government.

A number of courts have considered the question whether

factors other than a defendant’s substantial assistance, including the 18 U.S.C. § 3553(a) factors, may be considered in

deciding a Rule 35(b) motion, and, if so, how those factors

may be used. See, e.g., United States v. Clawson, 650 F.3d

530 (4th Cir. 2011); United States v. Grant, 636 F.3d 803 (6th

Cir. 2011) (en banc); United States v. Shelby, 584 F.3d 743

(7th Cir. 2009); United States v. Poland, 562 F.3d 35 (1st Cir.

2009), aff’g 533 F. Supp. 2d 199 (D. Me. 2008); United States

v. Chapman, 532 F.3d 625 (7th Cir. 2008); United States v.

Manella, 86 F.3d 201 (11th Cir. 1996); United States v. Park,

533 F. Supp. 2d 474 (S.D.N.Y. 2008). The question has

proved surprisingly difficult. 

Courts all agree that substantial assistance is a prerequisite

to Rule 35(b) relief. See, e.g., Clawson, 650 F.3d at 537

(“[W]hen deciding whether to grant a Rule 35(b) motion, a

district court may not consider any factor other than the

defendant’s substantial assistance to the government.”);

Grant, 636 F.3d at 816 (“When faced with a Rule 35(b)

motion, the district court must initially decide whether the

defendant did in fact render substantial assistance. If he did

not, the motion is denied. The explicit language of the rule

permits relief only ‘if’ there has been substantial assistance.”);

Park, 533 F. Supp. 2d at 476 (“ ‘[S]ubstantial assistance’ is

the only event that can trigger the court’s authority to reduce

the sentence.”). 

20266 UNITED STATES v. TADIO
However, courts do not agree on the proper role played by

non-assistance factors in determining the extent of a sentence

reduction once a defendant has satisfied the substantial assistance criterion of Rule 35(b). The Eleventh Circuit in Manella

held that a district court may apply non-assistance factors to

award a lesser sentence reduction than a defendant’s assistance alone warrants or to award no reduction at all, but may

not apply these factors in deciding whether to order a greater

reduction. Manella, 86 F.3d at 204. That is, under Manella the

non-assistance factors function as a one-way ratchet. More

recently, over a dissent, the Seventh Circuit in Shelby held the

same thing. 584 F.3d at 745, 748-49; see also Chapman, 532

F.3d at 629-30. The Sixth Circuit sitting en banc in Grant

recently held, over several dissents, that “the § 3553(a) factors

have no role in Rule 35(b) proceedings” and that any Rule

35(b) reduction “may not exceed the value of the assistance.”

Grant, 636 F.3d at 816. But the court in Grant held that a district court may consider non-assistance factors similar to those

listed in § 3553(a) — for example, a defendant’s relative culpability, his “capacity for abiding by the law,” and the degree

to which a defendant poses a “threat to society” — to award

a lesser reduction than the defendant’s assistance alone would

warrant. Id. at 817. As in Manella and Shelby, these nonassistance factors operate as a one-way ratchet. The First Circuit has held that a Rule 35(b) sentence reduction “must

reflect only the assistance provided,” but its holding was limited to “re-sentence adjustments that go below the statutory

mandatory minimum.” Poland, 562 F.3d at 41 (citing 18

U.S.C. § 3553(e)). The Fourth Circuit has noted disagreement

among courts but has reserved the question. Clawson, 650

F.3d at 532 n.1. Then-District Judge Chin, who now sits on

the Second Circuit, has held that “once the court determines

that the defendant has provided substantial assistance, the

court may consider other factors as well — including all the

[§] 3553(a) factors — in deciding the extent to which the

defendant’s sentence will be reduced.” Park, 533 F. Supp. 2d

at 479. He rejected as “not logical” the position “that a district

court may consider § 3553(a) factors when they militate

UNITED STATES v. TADIO 20267
against a larger reduction but not when they favor a larger

reduction.” Id. at 478 (emphasis in original). 

[2] We agree with the unanimous view of the federal

courts that a district court may not grant a Rule 35(b) motion

unless a defendant has provided substantial assistance to the

government. And we agree with those courts that allow the

district court to consider the full range of factors referenced

in § 3553(a) when determining the amount to reduce a sentence under a Rule 35(b) motion. However, unlike courts that

have held that non-assistance factors operate as a one-way

ratchet, we see no basis for that limitation. Instead, we adopt

a symmetrical rule, under which the district court may consider the non-assistance factors listed in § 3553(a) when

determining how much to reduce a defendant’s sentence, irrespective of the direction in which those factors cut. 

The first step of the Rule 35(b) analysis is to determine

whether the defendant has offered substantial assistance sufficient to trigger a district court’s authority to reduce a sentence. See, e.g., Pepper v. United States, 131 S. Ct. 1229,

1248 n.15 (2011) (“[A] defendant with nothing to offer the

Government can gain no benefit from Rule 35(b).”); Clawson,

650 F.3d at 537 (reversing grant of Rule 35(b) motion where

district court “made no finding regarding [the defendant’s]

assistance to the government” but instead granted motion

based “solely on its findings that [the defendant] would not

receive adequate medical care in prison, and that he did not

pose a danger to the community”). At this step, the district

court does not consider the facts of the defendant’s crime, the

defendant’s personal characteristics, or any other § 3553(a)

factors. 

[3] If a defendant has provided substantial assistance, the

court proceeds to the second step and determines the extent to

which the defendant’s sentence should be reduced. At this

step, the non-assistance factors of § 3553(a) properly guide a

district court’s exercise of its discretion in determining the

20268 UNITED STATES v. TADIO
extent of the reduction. Every court that has addressed the

question has concluded that a court may consider at least

some non-assistance factors at this step. Grant, 636 F.3d at

816-17; Shelby, 584 F.3d at 748-49; Chapman, 532 F.3d at

629-30; Manella, 86 F.3d at 204; Park, 533 F. Supp. 2d at

476. But cf. Poland, 562 F.3d at 41 (limiting its assistanceonly holding to Rule 35(b) sentence reductions “that go below

the statutory mandatory minimum”). The Seventh Circuit has

stated, “[T]he judge must reserve the right to condition the

grant of a Rule 35(b) motion, in whole or in part, on its consistency with the statutory sentencing factors, in order to

make sure that the reduced sentence is not unjust.” Shelby,

584 F.3d at 748. The court explained:

The judge cannot impose an illegal sentence. He

therefore cannot impose a sentence that is inconsistent with the statutory sentencing factors. If the government said, “although the defendant is a mass

murderer sentenced to life in prison and has served

only two years of his sentence, he has given us such

great information that we recommend that his sentence be reduced to time served,” the judge would

not be bound.

Id.; compare with 18 U.S.C. § 3553(a)(2)(A) (sentencing

court must consider “the need for the sentence imposed [ ] to

reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense”).

Although it was applying a more limited list of non-assistance

factors, the Sixth Circuit similarly described the importance

of assessing a sentence reduction in the context of pertinent

facts about the offense and the offender. See Grant, 636 F.3d

at 817 (“[T]he extent of the reduction might be tempered by

other factors affecting the valuation. . . . For example, a district court might recognize that a defendant’s assistance is of

extremely high value but also recognize that fully valuing the

cooperation would give the defendant a sentence much lower

than co-defendants who were far less culpable.”); compare

UNITED STATES v. TADIO 20269
with 18 U.S.C. § 3553(a)(6) (sentencing court must consider

“the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty

of similar conduct”). 

[4] We agree with those courts that have held that all of the

factors of § 3553(a) may be considered, to the degree they are

relevant, in determining the extent of a sentence reduction

under Rule 35(a). We have already disagreed with the Sixth

Circuit’s conclusion in Grant that only a few non-assistance

factors may be considered. See Doe, 351 F.3d at 933 (upholding the district court’s consideration of § 3553(a) factors

when it denied a Rule 35(b) reduction despite the defendant’s

substantial assistance). As a practical matter, it may turn out

that the difference between the list of § 3553(a) factors and

the list of factors enumerated in Grant is not all that great. But

to the degree that there is a practical difference, we believe

that there is no reason, once non-assistance factors are

allowed to influence the district court’s decision, to restrict

those non-assistance factors to a shorter list than Congress has

indicated in § 3553(a) are relevant to sentencing decisions. 

A related question is whether the non-assistance factors that

may be used when granting a Rule 35(b) motion are limited

to those that support a lesser rather than a greater sentence

reduction. We part company with those courts that have so

limited the district court’s consideration of non-assistance factors, thereby creating a one-way ratchet. 

In determining whether and how a district court may consider § 3553(a) factors when assessing the amount of a Rule

35(b) sentence reduction, we begin with the text of Rule

35(b). See United States v. Fort, 472 F.3d 1106, 1110 (9th

Cir. 2007) (“[A]n appellate court must look first to the plain

meaning of the text when interpreting a Federal Rule of Criminal Procedure[.]”) (citation omitted). Rule 35(b)(1) now provides that “the court may reduce a sentence if the defendant,

after sentencing, provided substantial assistance in investigat20270 UNITED STATES v. TADIO
ing or prosecuting another person.” Rule 35(b)(2) provides

similarly that “the court may reduce a sentence if the defendant’s substantial assistance” complies with certain criteria. 

[5] When originally adopted as part of the Sentencing

Reform Act of 1984, Rule 35(b) provided:

The court, on motion of the Government, may within

one year after the imposition of a sentence, lower a

sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution

of another person who has committed an offense, to

the extent that such assistance is a factor in applicable guidelines or policy statements issued by the

Sentencing Commission . . . . 

Sentencing Reform Act of 1984, Pub. Law No. 98-473,

§ 215(b), 98 Stat. 1837, 2015-16 (1984) (emphasis added). In

2002, an amendment to Rule 35(b) removed the language providing that the reduction of a defendant’s sentence within one

year of the entry of the original sentence should “reflect” a

defendant’s substantial assistance. The new text provides only

that the district court may reduce a sentence “if” a defendant

has provided substantial assistance. See Fed. R. Crim. P.

35(b)(1) (previously Rule 35(b)). The Advisory Committee

Note states that the change was “intended to be stylistic only.”

Adv. Comm. Note, 2002 Amendments to Fed. R. Crim. P. 35.

The 2002 amendments also added a new subsection to Rule

35(b) clarifying the circumstances under which a court could

reduce a sentence for substantial assistance provided more

than one year after the original sentencing. See id. (discussing

Rule 35(b)(2)). This is the subsection under which Tadio

moved for a reduction in sentence. Like Rule 35(b)(1), Rule

35(b)(2) provides only that the district court may reduce the

original sentence “if” the defendant has provided substantial

assistance. Because Rule 35(b)(2) was a new subsection, there

was never an earlier version that contained the “reflect” language of the original Rule 35(b). 

UNITED STATES v. TADIO 20271
There are three possible readings of the language of the

original Rule 35(b). The first is that the “reflect” language

means that the amount of the sentence reduction under the

rule must be based only on the amount of assistance provided.

This is how parallel language in § 3553(e), dealing with

reductions in mandatory minimum sentences, has been read

by the courts of appeals. See § 3553(e) (“Upon motion of the

Government, the court shall have the authority to impose a

sentence below a level established by statute as a minimum

sentence so as to reflect a defendant’s substantial assistance

in the investigation or prosecution of another person who has

committed an offense.”); United States v. Auld, 321 F.3d 861,

867 (9th Cir. 2003); United States v. Ahlers, 305 F.3d 54, 60

(1st Cir. 2002); United States v. Rabins, 63 F.3d 721, 727 (8th

Cir. 1995). On this reading, “reflect” means something like

“precisely calibrated to the degree of.” However, outside of

the mandatory minimum context, all courts to consider the

question have held that Rule 35(b) allows a district court to

consider non-assistance factors, at least to some extent, in

determining the amount of a sentence reduction triggered by

a defendant’s substantial assistance. 

The second possible reading is that the “reflect” language

means that a district court may limit the amount of a sentence

reduction based on the amount of assistance by taking into

account non-assistance factors relevant to the defendant.

Under this reading, the district court may consider nonassistance factors in deciding whether to grant a sentence

reduction equal to or less than the amount warranted by the

defendant’s assistance considered alone. In other words,

under this reading, “reflect” means to “take into account.” But

also, under this reading, the district court may never grant a

sentence reduction in an amount greater than that warranted

by the defendant’s assistance, even if non-assistance factors

might have led the district court to grant a greater reduction.

Although this reading results in an odd, asymmetrical application of Rule 35(b), in which non-assistance factors operate as

a one-way ratchet, most courts have read the “reflect” lan20272 UNITED STATES v. TADIO
guage, and the 2002 amendments, in this fashion. See, e.g.,

Grant, 636 F.3d at 816-17; Shelby, 584 F.3d at 745, 748-49;

Manella, 86 F.3d at 204. 

The third possible reading is that the “reflect” language

means that the court may determine the amount of a sentence

reduction in light of the assistance the defendant has provided,

in combination with non-assistance factors relevant to the

defendant. Again, under this reading, “reflect” means to “take

into account.” But under this reading non-assistance factors

may be used to grant a sentence reduction greater than, less

than, or the same as the reduction that would be warranted by

the defendant’s assistance considered alone. Rule 35(b) operates symmetrically under this reading, and non-assistance factors do not function as a one-way ratchet. Two dissenting

court of appeals judges and one district court judge have read

Rule 35(b) in this fashion. See Grant, 636 F.3d at 824-26

(Clay, J., dissenting); helby, 584 F.3d at 750-51 (Evans, J.,

dissenting); Park, 533 F. Supp. 2d at 475, 478-79.

[6] It is clear from the 2002 amendments — which substituted for the “reflect” language the phrase “may reduce a sentence if” (emphasis added) — that substantial assistance is a

prerequisite to the granting of a Rule 35(b) motion. There is

nothing in the current language of the rule, however, that even

arguably requires a district court to determine the amount of

sentence reduction based only on the amount of assistance

provided. And there is nothing in the current language suggesting that non-assistance factors should operate as a oneway ratchet. The most natural reading of the current language

is that non-assistance factors may be considered, along with

the amount of assistance, in determining the amount of sentence reduction, and that non-assistance factors may be considered symmetrically to allow a reduction that is either more

or less than the reduction that the assistance, considered

alone, would warrant. That natural reading is in no way inconsistent with the stylistic-only purpose of the 2002 amendments because it conforms with the third possible reading of

UNITED STATES v. TADIO 20273
the original language of Rule 35(b). We conclude that this

interpretation of the current rule is the appropriate reading. 

Reinforcing this conclusion, Rule 35(b) was further

amended in 2007 to eliminate the requirement that “reducing

the sentence accord[ ] with the Sentencing Commission’s

guidelines and policy statements.” See Grant, 636 F.3d at 825

(Clay, J., dissenting) (citing Fed. R. Crim. P. 35(b)(1)(B)

(2006)). (We note that the district court in this case was under

the impression that this language is still in the rule.) The

Advisory Committee Note states that the amendment “conforms Rule 35(b)(1) to the Supreme Court’s decision in

[Booker],” which “ ‘requires a sentencing court to consider

Guidelines ranges, . . . but . . . permits the court to tailor the

sentence in light of other statutory concerns as well.’ ” Adv.

Comm. Note, 2007 Amendments to Fed. R. Crim. P. 35

(quoting United States v. Booker, 543 U.S. 220, 245 (2005)

(majority op. of Breyer, J.)) (internal citation omitted). The

Note explained that subsection (b)(1)(B) “has been deleted

because it treats the guidelines as mandatory.” Id. We infer

from the deletion of subsection (b)(1)(B) that the Advisory

Committee anticipated that district courts would enjoy greater

latitude to “tailor” sentence reductions “in light of other statutory concerns” than substantial assistance considered alone.

See Grant, 636 F.3d at 825 (Clay, J., dissenting) (“This discussion, in the context of Rule 35(b), supports the view that

the elimination of Rule 35(b)(1)(B) was intended to prevent

limiting the district court’s consideration to only substantial

assistance. It also suggests that the Advisory Committee contemplated that a district court may apply the § 3553(a) factors

in the context of a Rule 35(b) motion.”); Park, 533 F. Supp.

2d at 476-77. The Sentencing Commission had recommended

that the Advisory Committee Note “clarify that the changes

are not intended to enlarge the bases of what a court may consider before imposing a post-sentence reduction.” Poland, 533

F. Supp. 2d at 216. The Advisory Committee declined to

adopt the Commission’s recommendation, which of course

suggests that the changes were indeed intended to “enlarge

20274 UNITED STATES v. TADIO
the bases” that a district court may consider when deciding

the amount of a sentence reduction. Id.

Our reading of Rule 35(b) is consistent with our decision

in Doe. In Doe, we concluded that a district court could use

§ 3553(a) non-assistance factors in determining the amount of

sentence reduction under Rule 35(b). 351 F.3d at 933. The

non-assistance factors were used in that case to produce a

lesser sentence reduction than would have been awarded

based solely on the amount of assistance. Our opinion in Doe

relied on an Eleventh Circuit case, Manella, 86 F.3d 201,

which distinguished an earlier Eleventh Circuit case, United

States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir. 1994),

by holding that non-assistance factors could be used to produce a lesser, but not a greater, sentence reduction. But Doe

did not directly address the symmetry question. Instead, it

held only that “in denying a Rule 35(b) motion, a district

court’s consideration of relevant factors other than a defendant’s substantial assistance to the government is a proper

exercise of its discretion.” 351 F.3d at 933. 

For several reasons, we decline to transform the brief discussion of and partial reliance on an out-of-circuit case in Doe

into a holding of this court. First, the actual holding of Doe,

as quoted above, does not address whether positive nonassistance factors can be taken into account when determining

the amount of a sentence reduction. Second, as we explain in

this opinion, we believe the proper reading of Rule 35(b) is

that non-assistance factors can be used in both directions

when determining the sentence reduction amount. Third, we

note that the original “reflect” language of Rule 35(b) governed the outcome in Doe, and that our opinion in that case

did not address either the clarification of that language in the

2002 amendments, or the reinforcement of that clarification in

the 2007 amendments. 

[7] We also hold that Rule 35(b) permits, rather than

requires, consideration of non-assistance factors. That is, the

UNITED STATES v. TADIO 20275
district court may, rather than must, apply the § 3553(a) factors when determining the proper amount of a sentence reduction triggered by a defendant’s substantial assistance. See

Grant, 636 F.3d at 817 (“One district judge might decline to

consider the contextual factors we mention; another might

deem them useful. The choice is that of the district court.”).

This reading is consistent with the plain language of the current rule, which repeatedly uses “may” to describe the court’s

discretion in considering the government’s Rule 35(b) motion.

See, e.g., Fed. R. Crim. P. 35(b)(3) (“[T]he court may consider the defendant’s presentence assistance.” (emphasis

added)). The rule’s discretionary language contrasts with the

court’s statutory duty to consider § 3553(a) factors when

imposing an original sentence. See 18 U.S.C. § 3553(a) (“The

court, in determining the particular sentence to be imposed,

shall consider . . . .” (emphasis added)). Other courts agree

that consideration of non-assistance factors in Rule 35(b)

motions is permissive, rather than mandatory. See Grant, 636

F.3d at 815-16 (“We reject the argument that a district court

must consider § 3553(a) factors in connection with a Rule

35(b) motion.”); Park, 533 F. Supp. 2d at 477 (“[T]he case

law from outside the Circuit suggests that a court may consider all [§] 3553(a) factors in deciding the extent of a Rule

35(b) reduction.” (emphasis added)).

[8] In sum, we agree with the government that “[a]s

amended, Rule 35(b) permits a post-sentence reduction if the

Government so moves and if there is substantial assistance,”

and that the district court acted properly when it considered

non-assistance factors in deciding whether to grant a greater

sentence reduction than warranted by Tadio’s assistance

alone. We conclude that the text of Rule 35(b) does not

restrict a district court’s discretion by allowing the district

court to apply the § 3553(a) factors only to grant a lesser

reduction than that which the defendant’s assistance, considered alone, would warrant. Rather, the current language of the

rule indicates that the court may rely on the § 3553(a) factors

to move in either direction. This result is consistent with

20276 UNITED STATES v. TADIO
Supreme Court cases granting, and more recently restoring,

sentencing discretion to the district courts, which enjoy a

superior “vantage point and day-to-day experience in criminal

sentencing” that enables them “to consider every convicted

person as an individual and every case as a unique study in

the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United

States, 518 U.S. 81, 98, 113 (1996); see also Booker, 543 U.S.

at 245 (majority op. by Breyer, J.). 

We note that our reading of Rule 35(b) has the virtue of

transparency. As discussed above, several of our sister circuits

require that a sentence reduction under Rule 35(b) “may not

exceed the value of the [defendant’s] assistance.” Grant, 636

F.3d at 816. A district judge who believes that a defendant’s

sentence should be reduced by, say, 24 months based on his

substantial assistance, and an additional 6 months based on

§ 3553(a) factors, might award a 30-month reduction and

attribute the reduction entirely to the defendant’s substantial

assistance. See Shelby, 584 F.3d at 751 (Evans, J., dissenting)

(noting that a “savvy” district judge “could have given [the

defendant] a much greater reduction . . . if only he had confined his stated reasons to the substantial assistance rubric.

This is game-playing, and we should not encourage it.”). If

the district court has stated the correct legal standard when

reducing a sentence under Rule 35(b), we have no appellate

jurisdiction to review its decision. See 18 U.S.C. § 3742;

United States v. Pedroza, 355 F.3d 1189, 1190-91 (9th Cir.

2004) (per curiam). Recognizing this reality, the Fourth Circuit, after reversing the grant of a Rule 35(b) motion because

the district court had failed to make a finding that the defendant had provided substantial assistance, reassigned the case

to a different district judge on remand. Clawson, 650 F.3d at

539 (explaining that it did so “[b]ecause reconsideration of

the Rule 35(b) motion by the original sentencing judge would

inevitably invite speculation as to whether [non-assistance

factors] continued to play a role in the ultimate ruling”). The

Supreme Court has rejected as “institutionalized subterfuge”

UNITED STATES v. TADIO 20277
rules that encourage district judges to camouflage their sentencing decisions. See Spears v. United States, 555 U.S. 261,

266 (2009) (per curiam). Our reading of Rule 35(b) removes

the incentive for “institutionalized subterfuge” that would otherwise exist. 

We respond to several arguments against our reading of

Rule 35(b). First, Tadio argues that allowing a district court

to reconsider the § 3553(a) factors already weighed at sentencing “is confusing, unworkable, and penalizes or rewards

the defendant twice; once at sentencing and the second time

on a Rule 35(b) motion.” We disagree. A district court is fully

capable of evaluating a Rule 35(b) motion, and the nonassistance factors of § 3553(a), against the backdrop of a

defendant’s original sentence. The application of these factors

will not “cloud[ ] the analytical exercise that the district court

must undertake.” Clawson, 650 F.3d at 537 (quoting Grant,

636 F.3d at 818). Courts already have extensive experience

with taking the § 3553(a) factors into account when deciding

whether to decrease a sentence under Rule 35(b). In many

cases, the Rule 35(b) proceeding will likely be uncomplicated

and the reduction awarded will reflect only the defendant’s

substantial assistance. But this will not always be the case. In

some instances, for example, a defendant’s individual circumstances will have changed, or information that sheds new light

on the nature of the offense will have emerged, since the date

of sentencing. In others, the substantial assistance itself may

throw light onto the § 3553(a) factors considered in the original sentencing, causing the district court to reconsider its evaluation of those factors. Allowing a district court, in the

government’s words, “to consider a host of factors in determining the extent of the reduction,” accords with the longstanding principle that a sentencing court should “make an

individualized assessment” of each defendant. Gall v. United

States, 552 U.S. 38, 50 (2007). 

Second, several courts have recognized a temptation to read

Rule 35(b) in pari materia with 18 U.S.C. § 3553(e). See

20278 UNITED STATES v. TADIO
Grant, 636 F.3d at 813-15; Poland, 562 F.3d at 40-41. Section 3553(e) provides that 

[u]pon motion of the Government, the court shall

have the authority to impose a sentence below a

level established by statute as a minimum sentence

so as to reflect a defendant’s substantial assistance in

the investigation or prosecution of another person

who has committed an offense. Such sentence shall

be imposed in accordance with the guidelines and

policy statements issued by the Sentencing Commission pursuant to [28 U.S.C. § 994].

18 U.S.C. § 3553(e). The relevant Sentencing Commission

policy statement, U.S.S.G. § 5K1.1, directs a court to focus on

such factors as the “significance and usefulness of the defendant’s assistance,” the “truthfulness, completeness, and reliability of any information or testimony provided by the

defendant,” and “any injury suffered, or any danger or risk of

injury to the defendant.” Id. § 5K1.1(a)(1), (2), (4). It is well

established in this circuit and others that in reducing a sentence below a mandatory minimum based on substantial assistance under § 3553(e), “[t]he district court may not . . .

consider factors unrelated to the defendant’s assistance.”

United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009)

(quoting Auld, 321 F.3d at 867); see also Grant, 636 F.3d at

814 & n.8. Because § 3553(e) and Rule 35(b) deal with the

same issue at different stages of the sentencing process, the

First Circuit has concluded that Rule 35(b) is subject to the

same requirement that a reduction below a mandatory minimum must reflect only a defendant’s substantial assistance.

Poland, 562 F.3d at 40-41. However, we have already

declined to read the express limitations of § 3553(e) into Rule

35(b). See Doe, 351 F.3d at 933 (contravening the assistanceonly principle applied in § 3553(e) cases by allowing consideration of non-assistance factors under Rule 35(b)). The

requirements that a Rule 35(b) reduction “reflect” substantial

assistance and “accord” with the Sentencing Commission’s

UNITED STATES v. TADIO 20279
Guidelines and policy statements have now been deleted from

Rule 35(b). In addition, Tadio was not subject to a statutory

mandatory minimum at his original sentencing. Where, as

here, a defendant’s sentence has never been governed by

§ 3553(e), we see no basis for importing the restrictions on

§ 3553(e) relief into a post-sentencing Rule 35(b) proceeding.

Third, the Seventh Circuit has suggested that our approach

would “create arbitrary distinctions between similarly situated

defendants” because only those defendants on whose behalf

the government makes Rule 35(b) motions would have the

opportunity to benefit from reapplication of the § 3553(a) factors. Shelby, 584 F.3d at 745. The Supreme Court in Pepper

rejected a similar argument that permitting a resentencing

court to consider post-sentencing rehabilitation would “ ‘inequitably benefit only those who gain the opportunity to be

resentenced de novo.’ ” 131 S. Ct. at 1247-48 (quoting

U.S.S.G. § 5K2.19 cmt.). The Court acknowledged that resentenced defendants would be treated differently from those

who were not resentenced. But that disparity was acceptable

because it “arises not because of arbitrary or random sentencing practices, but because of the ordinary operation of appellate sentencing review.” Id. at 1248; see also id. at 1248-49

(“The differences in procedural opportunity that may result

because some defendants are inevitably sentenced in error and

must be resentenced are not the kinds of ‘unwarranted’ sentencing disparities that Congress sought to eliminate under

§ 3553(a)(6).”). Similarly, in Rule 35(b) cases, any disparity

arises not because of arbitrary or random resentencing practices, but because of the ordinary operation of a rule that

rewards a defendant’s assistance to the government. In fact,

in this situation, there is less arbitrariness than in Pepper. The

defendant who has rendered substantial assistance after sentencing is not similarly situated to a defendant who has not.

Instead, he is to be rewarded for his assistance, under our

interpretation of Rule 35(b), with the opportunity for consideration of § 3553(a) factors. 

20280 UNITED STATES v. TADIO
Finally, the Seventh Circuit has also speculated that our

approach would cause the government to “lose control of the

sentencing process,” with the result that the government

“would rarely make [Rule 35(b)] motions any longer,” to the

detriment of defendants and prosecutors alike. Shelby, 584

F.3d at 747; see also Clawson, 650 F.3d at 537 (citing

Shelby). But district courts already have the authority to grant

greater Rule 35(b) reductions than the government requests if

they conclude that the defendant’s assistance was worth more

than the government has recommended. The Seventh Circuit

concedes that the government “seems content with such a

result.” Shelby, 584 F.3d at 747. The exercise of that authority

by district courts has not dissuaded the government from

using Rule 35(b) to encourage post-sentencing cooperation.

We fail to see why our reading of Rule 35(b), which results

in a slightly expanded authority of the district court to grant

a greater sentence reduction than recommended by the government, will operate differently. 

[9] In sum, we hold that once a district court determines

that a defendant has provided substantial assistance in the

investigation or prosecution of another person, the court may

consider the § 3553(a) factors to award a sentence reduction

that is greater than, less than, or equal to the reduction that the

defendant’s assistance, considered alone, would warrant. We

caution that a resentencing under Rule 35(b) is not the equivalent of a de novo sentencing. The district court is not free to

impose whatever sentence it now believes to be just, irrespective of the original sentencing and irrespective of the amount

of assistance rendered by the defendant. Compare with Dillon,

130 S. Ct. at 2692 (“Because reference to § 3553(a) is appropriate only at the second step of this circumscribed inquiry, it

cannot serve to transform the proceedings under § 3582(c)(2)

into plenary resentencing proceedings.”). Rather, a Rule 35(b)

proceeding is a resentencing in which the starting point is the

original sentence, and in which the amount of assistance rendered by the defendant is the triggering factor for any reduction. The district court may properly consider the § 3553(a)

UNITED STATES v. TADIO 20281
factors in determining the amount of reduction and it may use

those non-assistance factors to reduce the sentence by an

amount greater than, less than, or the same as what the defendant’s assistance, considered alone, would warrant. But the

amount of reduction should always be determined in reference

to the starting point and by considering the non-assistance

factors in combination with the amount of assistance rendered

by the defendant.

Conclusion

[10] The district court properly considered § 3553(a) nonassistance factors in determining the amount of Tadio’s sentence reduction under Rule 35(b). If a district court applies the

correct legal standard under Rule 35(b), we have no jurisdiction to review its exercise of discretion in determining the

amount of a sentence reduction. Because the district court

applied the correct legal standard in this case, we AFFIRM its

consideration of non-assistance factors and DISMISS Tadio’s

challenge to the amount of his sentence reduction. 

AFFIRMED in part and DISMISSED in part. 

20282 UNITED STATES v. TADIO