IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10255

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee, 

v. 

AARON MCMAHAN, 

 Defendant–Appellant. 

Appeal from the United States District Court 

for the Northern District of Texas 

Before DAVIS, CLEMENT, and PRADO, Circuit Judges. 

EDWARD C. PRADO, Circuit Judge:

Aaron McMahan appeals the district court’s denial of the Government’s 

Federal Rule of Criminal Procedure 35(b) motion for reduction of his sentence. 

McMahan contends that he was entitled to notice and an opportunity to be 

heard in his Rule 35(b) proceeding prior to the district court’s order. This is an 

issue of first impression in this Court. Because we hold that Rule 35(b) has no 

notice and hearing requirement, we AFFIRM the district court’s order. 

I. BACKGROUND 

On May 30, 2014, McMahan pleaded guilty to conspiracy to possess with 

intent to distribute a controlled substance. The district court sentenced 

McMahan to 188 months imprisonment and four years of supervised release, 

United States Court of Appeals

Fifth Circuit

FILED

October 5, 2017

Lyle W. Cayce

Clerk

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2 

which was later reduced to 151 months imprisonment. While in custody, 

McMahan assisted the Government by providing relevant information related 

to the prosecution of another drug trafficker. The Government did not file a 

motion for downward departure under United States Sentencing Guideline

§ 5K1.1 because the information McMahan provided did not lead to an arrest 

or prosecution at the time he was sentenced. 

Over six months after McMahan was sentenced, the other drug trafficker 

was sentenced based on information McMahan had provided. On February 24, 

2016, the Government filed a post-sentence Rule 35(b) motion for a reduction 

in McMahan’s sentence based on his substantial assistance in the investigation 

and prosecution of the other individual. Two days later, the district court

denied the Government’s motion—before McMahan had received notice or had 

an opportunity to respond—explaining “even if the court were to accept as 

accurate all allegations of fact alleged in such motion, the court would not be 

persuaded that the sentence imposed on McMahan . . . should be reduced.” 

McMahan timely filed a notice of appeal. He argues that the district court erred 

by denying the Government’s motion without first providing him notice and an 

opportunity to be heard. 

II. DISCUSSION 

Pursuant to 18 U.S.C. § 3742(a)(1), we have jurisdiction over appeals of 

Rule 35(b) orders “imposed in violation of law.” 18 U.S.C. § 3742(a)(1); see 

United States v. Lightfoot, 724 F.3d 593, 595 (5th Cir. 2013). We review 

questions of law underlying a district court’s sentencing decision de novo. See 

Lightfoot, 724 F.3d at 597; United States v. Grant, 493 F.3d 464, 467 (5th Cir. 

2007).

Rule 35(b) 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 or prosecuting 

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another person.” Fed. R. Crim. P. 35(b)(1). The government is under no 

obligation to file a Rule 35(b) motion, and if it does, “the sentencing court is not 

bound by the government’s recommendation on whether or how much to depart 

but must exercise its independent discretion.” Grant, 493 F.3d at 467 (citing 

United States v. Johnson, 33 F.3d 8, 9 (5th Cir. 1994)); see also Fed. R. Crim. 

P. 35(b)(1)–(2). On its face, Rule 35(b) contains no right to notice and a hearing. 

See Fed. R. Crim. P. 35(b). 

McMahan argues on appeal that the district court erred by denying the 

Government’s Rule 35(b) motion to reduce his sentence without first providing 

McMahan with notice and an opportunity to be heard. In support of his 

argument, he asserts that this Court should recognize the rule, laid out in 

United States v. Gangi, 45 F.3d 28 (2d Cir. 1995), that a district court commits 

reversible error if it does not provide a defendant notice and an opportunity to 

be heard before ruling upon a Rule 35(b) motion. 

 In Gangi, the Second Circuit considered an appeal from a district court’s

order denying the government’s Rule 35(b) motion for reduction of Gangi’s 

sentence in light of his investigative assistance. 45 F.3d at 29. The court faced 

the same question presented here: “[W]hether a district court may deny a Rule 

35(b) motion without affording the defendant an opportunity to be heard.” Id.

In its analysis, the Second Circuit drew upon Rule 35(b)’s relationship and 

similarity to § 5K1.1, its “pre-sentencing counterpart,” finding it persuasive 

that Rule 35(b) and § 5K1.1 had similarities in language and function1 and 

 

1 Like Rule 35(b), § 5K1.1 provides that “[u]pon motion of the government stating that 

the defendant has provided substantial assistance in the investigation or prosecution of 

another person who has committed an offense, the court may depart from the guidelines.” 

U.S.S.G. § 5K1.1; see also Gangi, 45 F.3d at 30 (“[U]nder both provisions ‘substantial 

assistance’ is the only basis for leniency. The only practical difference between Rule 35(b) and 

U.S.S.G. § 5K1.1 is a matter of timing: The latter is based on substantial assistance before 

sentencing while the former is based on substantial assistance after sentencing.”). 

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that Rule 35(b) contained the instruction that post-sentencing reduction 

decisions be made “in accordance with the guidelines and policy statements 

issued by the Sentencing Commission.” Id. at 30. Given this, the Second Circuit

found it appropriate to interpret Rule 35(b) in light of the procedural 

requirements of 

§ 5K1.1.2 Id. at 30–31. The court ultimately held that, in accordance with its 

reading of § 5K1.1, Rule 35(b) requires the defendant have an opportunity to 

respond. Id. at 31–32. 

 This Court, however, declines to extend Gangi’s reach to our Circuit. 

First, Gangi was based on a version of Rule 35(b) that no longer exists. Thus 

the main textual hook for tying Rule 35 and § 5K1.1 together is gone. At the 

time Gangi was decided, the text of Rule 35(b) read: 

The court, on motion of the Government made within one year 

after the imposition of the sentence, may reduce a sentence to 

reflect a defendant’s subsequent substantial assistance in the 

investigation or prosecution of another person who has committed 

an offense, in accordance with the guidelines and policy statements 

issued by the Sentencing Commission pursuant to section 994 of 

title 28, United States Code. 

Gangi, 45 F.3d at 30 (emphasis added). In 1995, the Second Circuit relied on 

that instruction when it concluded that Rule 35(b)’s procedural requirements 

should be read consistently with that of § 5K1.1. Id. at 30–31. In 2007, however, 

 

2 Section 5K1.1 provides factors for the court to consider, including “1) the usefulness 

of the defendant’s assistance; 2) the truthfulness, completeness and reliability of his 

information; 3) the nature and extent of his assistance; 4) the impact of assistance on the 

defendant and his family; and 5) the timeliness of the defendant’s assistance.” Gangi, 45 F.3d 

at 31; see also U.S.S.G. § 5K1.1. These factors and that court’s case law led the Second Circuit 

to conclude that a “defendant must have an opportunity to respond to the government’s 

characterization of his cooperation in a § 5K1.1 motion.” Gangi, 45 F.3d at 31. Notably, 

however, an explicit instruction requiring an opportunity to respond is absent from § 5K1.1. 

See U.S.S.G. § 5K1.1.

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Rule 35 was amended and the phrase “in accordance with the guidelines and 

policy statements issued by the Sentencing Commission” was removed. Fed. R. 

Crim. P. 35 advisory committee’s note to 2007 amendments (“The amendment 

conforms Rule 35(b)(1) to the Supreme Court’s decision in United States v. 

Booker, 543 U.S. 220 (2005) . . . . Subdivision (b)(1)(B) has been deleted because 

it treats the guidelines as mandatory.”). Thus, Rule 35(b) is now devoid of any

textual reference to the Sentencing Guidelines, and absent such a reference, 

this Court will not read Rule 35(b) as requiring an application of § 5K1.1’s 

rules. See, e.g. Lightfoot, 724 F.3d at 598 (finding an omission “indicative of 

congressional intent”). 

 Although this Court and many others have recognized parallels between 

Rule 35(b) and § 5K1.1,3 none of those cases requires this Court to adopt the 

reading of Rule 35(b) that McMahan suggests today. In all of those cases, the 

courts were commenting on the similarity between the provisions for the 

purpose of analyzing identical language in both provisions4 or for the purpose 

 

3 See Grant, 493 F.3d at 467 n.1 (“Rule 35(b) incorporates the standards set out in 

§ 5[K]1.1.”); United States v. Lopez, 26 F.3d 512, 523 (5th Cir. 1994) (describing Rule 35(b) as 

“§ 5K1.1’s post-sentencing analog”); United States v. Mulero-Algarin, 535 F.3d 34, 38 (1st Cir. 

2008) (“In charting the contours of substantial assistance under Rule 35(b), courts have 

consistently looked to the virtually identical language contained in [U.S.S.G.] § 5K1.1 

(providing criteria for presentence ‘substantial assistance’ departure in calculating a 

defendant’s guideline sentencing range).”); United States v. Perez, 955 F.2d 34, 35 (10th Cir. 

1992) (“Because of their overlapping subject matter and similarities in language, it is 

instructive to examine and compare U.S.S.G. § 5K1.1 (policy statement) and 18 U.S.C. 

§ 3553(e) (1998) when interpreting Rule 35(b).”); United States v. Doe, 940 F.2d 199, 203 n.7 

(7th Cir. 1991) (“Throughout our opinion, we cite precedent construing Rule 35(b), § 3553(e), 

and Federal Sentencing Guidelines § 5K1.1 (permitting a district court to depart from the 

Sentencing Guidelines for substantial assistance) interchangeably. We do this because the 

language of all three provisions is parallel.”).

4 In Grant, 493 F.3d at 467, and Mulero-Algarin, 535 F.3d at 38–39, for instance, the 

courts relied on the identical language in Rule 35(b) and § 5K1.1 to interpret the discretion 

the government has to file a motion for a sentence reduction. In Perez, the court noted the 

identical language between the two provisions, as well as § 3553(e) for the purpose of 

interpreting Rule 35(b)’s “on motion of the Government” language. 955 F.2d at 35. In Doe, 

the defendant was similarly asking the district court to compel the government to file a Rule 

35(b) motion. 940 F.2d at 202.

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of explaining the timing of options available when a defendant provides 

substantial assistance.5 None of those cases applied additional and different 

language from § 5K1.1 to Rule 35(b). In fact, no other circuit besides the Second 

Circuit has found that § 5K1.1 compels a reading of Rule 35(b) to require a 

right to be heard. 

Finally, the Government argues that adopting a notice and hearing 

requirement in Rule 35(b) motions would “create tension with the authority 

recognizing that a defendant possesses many more rights during the 

sentencing phase of criminal proceedings than during post-sentencing 

proceedings.” This argument is persuasive; a defendant does possess fewer 

rights during post-sentencing proceedings. Indeed, Federal Rule of Criminal 

Procedure 43(b) provides, “[a] defendant need not be present . . . [where t]he 

proceeding involves the correction or reduction of sentence under Rule 35 . . . .” 

Fed. R. Crim. P. 43(b)(4). Further, a defendant does not have a right to counsel 

during Rule 35(b) sentence reduction proceedings. United States v. Palomo, 80 

F.3d 138, 139 (5th Cir. 1996). Thus, a notice and hearing requirement for Rule 

35(b) motions would be in conflict with Rule 43 and this Court’s previous 

decisions that the attendant rights of presence and counsel do not exist at that 

post-sentencing stage.

For these reasons, this Court declines to apply the reasoning of Gangi

and rejects McMahan’s invitation to read Rule 35(b) as having a notice and 

hearing requirement. The district court did not err by ruling on the 

Government’s Rule 35(b) motion before the defendant responded. 

As an additional matter, McMahan argues that the district court’s 

failure to provide notice and an opportunity to be heard before rendering its 

Rule 35(b) decision violated his due process rights. McMahan does not 

 

5 See Lopez, 26 F.3d at 523. 

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explicitly elaborate on his constitutional argument, however, and thus this 

Court need not decide that issue.6 See, e.g., United States v. Maldonado, 42 

F.3d 906, 910 n.7 (5th Cir. 1995); see also Fed. R. App. P. 28(a)(8). Further, 

many of the constitutional rights afforded to criminal defendants are not 

present in Rule 35(b) proceedings because of the Rule’s discretionary nature 

and the fact that a defendant faces no new threat of loss of liberty. Indeed, a 

Rule 35(b) motion can only serve to reduce a defendant’s sentence for their 

assistance in other investigations. See Grant, 493 F.3d at 468 (finding no due 

process violation for failure to file a Rule 35(b) motion); Palomo, 80 F.3d at 142 

(concluding that no Sixth Amendment or due process right to counsel attaches 

at the Rule 35(b) stage). Accordingly, we reject McMahan’s due process 

argument. 

III. CONCLUSION 

For the foregoing reasons, we hold that Rule 35(b) does not have a notice 

and hearing requirement. We therefore AFFIRM the district court’s order

denying the Government’s Rule 35(b) motion. 

 

6 Moreover, McMahan does not argue that the Government refused to make a Rule 

35(b) motion for unconstitutional reasons. See Wade v. United States, 504 U.S. 181, 185–86

(1992) (“[W]e hold that federal district courts have authority to review a prosecutor’s refusal 

to file a substantial-assistance motion and to grant a remedy if they find that the refusal was 

based on an unconstitutional motive.”). 

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