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UNITED STATES OF AMERICA v. TIMOTHY L. GIBBS

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


December 1, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TIMOTHY L. GIBBS, DEFENDANT.

The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM AND ORDER :

Before the Court is defendant's motion to reduce sentence (Doc. 679). In the motion, the defendant asserts that he has been of assistance in a case in another district, as well within the Bureau of Prisons in an investigation. He asserts that he should be re-sentenced for that cooperation. The defendant also seeks appointment of counsel.

What the defendant essentially seeks is a reduction pursuant to Fed. R. Crim. P. 35. The government may file a Rule 35(b) motion*fn1 more than a year after sentencing if the defendant's assistance could not have been provided or used by the government earlier, Fed.R.Crim.P. 35(b)(2); United States v. Shelby, 584 F.3d 743, 744 (7th Cir.2009). Here the defendant does not assert that the government promised him such a motion as a condition of a plea agreement, United States v. Lezine, 166 F.3d 895, 901 (7th Cir. 1999),*fn2 nor that the government has refused to file such a motion based upon an unconstitutional motive. Wade v. United States, 504 U.S. 181, 185-86 (1992). ("[A] claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing" id. at 186). However, the defendant does assert that some promises were made. Therefore, the Court DIRECTS the government to file a response to the defendant's motion setting forth its position with respect to the availability of a Rule 35 reduction in this case.

The government's response shall be filed within fifteen (15) days of the date of this Order. The Court will determine, after the response is filed, if appointment of counsel is warranted.

IT IS SO ORDERED.

/s/ WILLIAM D. STIEHL

DISTRICT JUDGE


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