November 16, 2016
from the United States District Court for the Southern
District of Illinois. No. 15-CV-571-NJR-PMF - Nancy J.
Easterbrook, Kanne, and Hamilton, Circuit Judges.
Easterbrook, Circuit Judge.
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.
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.
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
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.
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.
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
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
(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 ...