Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 69-Charles P. Kocoras, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
ARGUED SEPTEMBER 17, 2009
Before POSNER, MANION, and EVANS, Circuit Judges.
Rule 35(b)(2) of the federal criminal rules authorizes the district court, "upon the government's motion made more than one year after sentencing," to "reduce a sentence if the defendant's substantial assistance" falls into specified categories. The only question we are asked to decide is whether the rule allows the district judge to reduce the sentence on the basis of the factors that he would consider in initial sentencing under the Booker regime-namely the factors listed in 18 U.S.C. § 3553(a).
In 1996 Judge Kocoras sentenced the defendant to 295 months in prison for drug and firearm offenses. The sentence was the sum of two consecutive sentences: a 235-month sentence for the drug offenses-a sentence at the bottom of the guidelines sentencing range- and a 60-month statutory-minimum sentence for the firearm offense; this sentence the statute required be consecutive to the drug sentence. At the time, the guidelines were mandatory. The judge expressed regret at having to impose such a long sentence on a 26-year-old; he said that "the guideline calculations and the gun count take us well past what might be necessary, both to punish you and to provide some measure of deterrence and to vindicate these laws, but I do not have that freedom." We affirmed the sentence. 121 F.3d 1118 (7th Cir. 1997).
In 2008 the government filed a Rule 35(b)(2) motion, recommending that the defendant's sentence be reduced by 30 months to reflect substantial assistance that he had provided more than a year after he had been sentenced. After two hearings on the motion, the judge reduced the sentence not by 30 months but by 115 months, to 180 months (that is, from a shade under 25 years to 15 years), on the basis of the sentencing factors that, now that the guidelines are merely advisory, judges are required by 18 U.S.C. § 3553(a) to consider in sentencing a defendant initially.
We can assume that if the judge was authorized to reduce the defendant's sentence on the basis of those factors rather than just on the basis of the judge's evaluation of the defendant's assistance, the 115-month reduction in the defendant's sentence was permissible. But we do not think the judge was authorized to consider those factors.
The purpose of Rule 35(b)(2) is to facilitate law enforcement by enabling the government to elicit valuable assistance from a criminal defendant more than a year after he was sentenced by asking the sentencing judge to reduce the defendant's sentence as compensation for the assistance that he provided. (Rule 35(b)(1) permits a similar motion to be made within a year after sentencing, but defines eligible assistance more broadly than Rule 35(b)(2) does.)
A provision of the guidelines that resembles Rule 35(b), section 3E1.1(b), increases the sentencing discount for acceptance of responsibility upon the government's motion for such an increase, as compensation for the defendant's having saved the government resources by timely notification of his intention to plead guilty. We have said that this section "confers an entitlement on the government: if it wants to give the defendant additional credit for acceptance of responsibility, perhaps to induce additional cooperation, and can satisfy the criteria in the subsection, it can file a motion and the defendant will get the additional one-level reduction in his offense level, though . . . [because the guidelines are now advisory] this may not determine his actual sentence." United States v. Deberry, 576 F.3d 708, 710 (7th Cir. 2009) (emphasis in original). Rule 35(b) likewise confers an entitlement on the government rather than on the defendant; and although it does not specify the entitlement, as section 3E1.1(b) does (an additional one point off the offense level for acceptance of responsibility), it contains no suggestion that the filing of the motion allows the defendant to argue for resentencing on the basis of something other than the assistance he gave the government.
To suppose that the happenstance of the govern-ment's wanting to reward the defendant modestly for some post-sentencing cooperation reopens the entire sentencing process, permitting or even requiring the district judge to consider the full range of sentencing factors in 18 U.S.C. § 3553(a) just as he did when he first sentenced the defendant (or in this case as he would have done had the guidelines been merely advisory then), would create a triple anomaly. It would create arbitrary distinctions between similarly situated defendants; it would create the equivalent of a judge-administered parole system for defendants lucky enough to be the subject of a Rule 35(b)(2) motion, even though courts are not parole boards and the Sentencing Reform Act of 1984 abolished parole in federal cases; and it would impair the objective of Rule 35(b), which as we said is to assist law enforcement.
Imagine two criminals, A and B, who committed the same crime, were identically positioned in relation to the guidelines and the statutory sentencing factors, and were given the same 20-year sentence. Ten years later A happens to overhear a cellmate confess to a crime. He reports this to the authorities and later testifies against the cellmate. The government seeks to reward him by moving under Rule 35(b)(2) for a 10 percent reduction in the length of his sentence, to 18 years. The judge, however, considering the section 3553(a) factors, reduces the sentence to 10 years, and since A has served 10 years he goes free. B, though eager to assist the government and obtain a reduced sentence as a reward, never has an opportunity to assist the government and as a result never has a chance to ask the judge to reduce his sentence on the basis of the section 3553(a) factors. As a result, he serves twice as long a sentence as A, rather than serving only two years longer (two years being the sentencing discount recommended by the government for A in our example).
Judge Kocoras appears to have felt that he was correcting another arbitrary difference-that between defendants such as Shelby sentenced before Booker made the guidelines advisory and defendants sentenced after. But the correction is severely incomplete, for how many Rule 35(b)(2) motions are made? There are no statistics, but we do know that the total number of both Rule 35(b)(1) and Rule 35(b)(2) motions that were granted in fiscal year 2008 was only 1,709, though there were a total of 74,493 federal sentences imposed that year. United States Sentencing Commission, 2008 Sourcebook of Federal Sentencing tab. 62, tab. N (2008), http://www.ussc.gov/ANNRPT/2008/ SBTOC08.htm (visited Sept. 30, 2009). One imagines that most were motions under Rule 35(b)(1), for after years of imprisonment a prisoner is unlikely to be able to render substantial assistance to the government. Prisoners on whose behalf no Rule 35(b)(2) motion is made cannot get their pre-Booker sentence revised on the basis of substantial assistance to the government. Nor does Booker always work in favor of a defendant; the discretion it confers on sentencing judges is used to raise as well as to lower guidelines sentences, since "the only change" in sentencing brought about by Booker was "the degree of flexibility judges . . . enjoy in applying the guideline system." McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005). Because "Booker does not apply to the scores of defendants whose sentences were final when Booker was handed down," "it would be unfair to allow a full Booker resentencing to only a subset of defendants whose sentences were lowered by a retroactive amendment." United States v. Cunningham, 554 F.3d 703, 708-09 (7th Cir. 2009).
If Judge Kocoras had the authority he claimed, we would have a regime of indefinite sentencing for defendants in cases in which the government files a Rule 35(b)(2) motion. For he based the reduction in the defendant's sentence not only on the circumstances that existed at the time of the original sentencing but also on events that had occurred in the 13 years since, such as the death of the defendant's mother, the defendant's pursuit of educational opportunities in prison, and a promise to him of a job if he were released. Post-sentencing developments are considered by a parole board in deciding whether to grant parole; had Congress wanted them to figure in the length of imprisonment of a federal offender it would not have abolished parole.
Allowing the judge to redo the sentence from the ground up when a Rule 35(b) motion is filed would almost certainly reduce the number of such motions filed, to the detriment of the government-in whose interest, as we said, the rule was created-and of those criminal defendants who would be the beneficiaries of such a motion if it were filed but do not benefit because it is not filed. The government wanted the defendant's sentence reduced by 10 percent; the judge reduced it by almost 40 percent. Had the government known this could ...