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Kirk v. United States Department of Justice

United States Court of Appeals, Seventh Circuit

December 2, 2016

Jennifer Kirk, Plaintiff-Appellant,
v.
United States Department of Justice, Defendant-Appellee.

          Argued November 16, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 15-CV-571-NJR-PMF - Nancy J. Rosenstengel, Judge.

          Before Easterbrook, Kanne, and Hamilton, Circuit Judges.

          Easterbrook, Circuit Judge.

         Normally a district court may reduce a criminal sentence only within 14 days of its imposition. Fed. R. Crim. P. 35(a). But if a prisoner provides substantial assistance to prosecutors after being sentenced, a district court may reduce the sentence at any time on the prosecutor's motion. Fed. R. Crim. P. 35(b). Jennifer Kirk enjoyed one such reduction; the district judge cut her sentence (for mail and wire fraud) from 188 to 110 months. Kirk contends that she provided additional assistance after that reduction and is entitled to a further reward, but the United States Attorney has declined to file a second motion under Rule 35(b). Kirk then filed this suit under the Administrative Procedure Act, 5 U.S.C. §702, asking a district judge to set aside the prosecutor's decision not to file the motion that would permit the court to reduce her sentence further.

         The district judge dismissed the complaint, giving two reasons. 2016 U.S. Dist. Lexis 57323 (S.D. 111. Apr. 29, 2016). First, the judge thought that whether to make a Rule 35(b) motion is committed to agency discretion by law, bringing Kirk's claim within the scope of the exclusion to APA review in 5 U.S.C. §701(a)(2). Second, the judge believed that the right way for a prisoner to obtain review of the prosecutor's decision is by a collateral attack under 28 U.S.C. §2255-and the APA forecloses actions when another adequate remedy is available. 5 U.S.C. §704.

         These two reasons are incompatible. If §2255 supplies a means of review, then the decision is not committed to agency discretion by law; but if the decision is committed to agency discretion, then by definition review under §2255 is impermissible. We think that both parts of the district judge's reasoning are mistaken but that the judgment is nonetheless correct.

         The Supreme Court held in Wade v. United States, 504 U.S. 181 (1992), that a prosecutor's decision not to file a motion under 18 U.S.C. §3553(e) and U.S.S.G. §5K1.1 is reviewable. We cannot see any reason why a motion under Rule 35(b) would be treated differently; the rule, §3553(e), and §5K1.1 all authorize lower sentences to reward a defendant's assis- tance with other prosecutions. Wade stated that the permissible grounds of review are those that apply to all exercises of prosecutorial discretion-as a practical matter, race discrimination or other constitutional transgressions. 504 U.S. at 185-86. See also, e.g., United States v. Armstrong, 517 U.S. 456, 463 (1996); United States v. Davis, 793 F.3d 712, 719-23 (7th Cir. 2015) (en banc). Because the decision whether to file a Rule 35(b) motion is reviewable on those grounds, it has not been committed to agency discretion by law, and §701(a)(2) therefore does not foreclose review under the APA.

         Next up: Does §2255 provide an adequate remedy and so block APA review under §704? The district court said yes, citing two decisions that evaluated the absence of Rule 35(b) motions during collateral attacks under §2255. United States v. Obeid, 707 F.3d 898 (7th Cir. 2013); United States v. Richardson, 558 F.3d 680 (7th Cir. 2009). Yet neither opinion holds that §2255 is the right approach as a general matter. In Richardson the court thought §2255 an appropriate vehicle because the defendant contended that the prosecutor had conditioned the filing of a future Rule 35(b) motion on the defendant's waiver of his right to appeal from the judgment of conviction. We saw that as drawing into question the validity of the conviction itself, and §2255 is designed to allow defendants to contest the validity of their convictions. In Obeid, too, the defendant argued that his sentence was unconstitutional, made disproportionate and excessive by the grant of a Rule 35(b) motion in a different case. We held that §2255 was not available to make that argument, however, because the defendant had not sought relief until the year allowed by §2255(f) had expired.

         For most situations -of which Kirk's is a good example- §2255 does not provide an adequate way to contest the prosecutor's decision not to file a Rule 35(b) motion. Obeid illustrates the problem. According to §2255(f), motions must be filed within a year of the judgment's finality. Section 2255(f) has some exceptions, such as new and retroactive rules of law, but none applies when a prisoner contends that substantial assistance justifies a lower sentence. Yet Rule 35(b)(2) authorizes sentence reductions long after a year from the conviction's finality:

Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved:
(A) information not known to the defendant until one year or more after sentencing;
(B) 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; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its ...

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