                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-7847


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

MICHAEL EUGENE FARMER,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:02-cr-00131-BO-1)


Argued:   March 25, 2010                       Decided:    June 10, 2010


Before TRAXLER,   Chief    Judge,   and   GREGORY   and   SHEDD,   Circuit
Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Chief Judge Traxler joined.     Judge Gregory
wrote a dissenting opinion.


ARGUED: Robert John McAfee, MCAFEE LAW, PA, New Bern, North
Carolina, for Appellant.    Anne Margaret Hayes, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

       Michael Farmer appeals the district court’s order granting

the Government’s motion to withdraw its motion under Rule 35 of

the Federal Rules of Criminal Procedure.             We affirm.



                                        I.

       Farmer pled guilty to conspiracy to distribute and possess

with intent to distribute at least fifty grams of crack cocaine,

in violation of 21 U.S.C. § 846.                 Pursuant to Farmer’s plea

agreement, the Government agreed to “make known to the Court at

sentencing       the   full    extent   of   [his]   cooperation,   but   the

Government is not promising to move for departure pursuant to

U.S.S.G. §5K1.1, 18 U.S.C. §3553(e) or Fed. R. Crim. P. 35.”

J.A.       15.    Farmer      was   thereafter   sentenced   to   262   months

imprisonment.

       The Government filed a Rule 35 motion within one year of

Farmer’s sentencing and requested the motion be held in abeyance

until after he had completed his assistance. 1               More than four

years later, Farmer filed a motion requesting a hearing on the

Government’s Rule 35 motion.            The Government filed a response to

       1
       Federal Rule of Criminal Procedure 35(b)(1) provides:
“[u]pon the [G]overnment’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 another person.”



                                         2
the motion, in which it informed the district court that Farmer

had completed his assistance and the Rule 35 motion was ripe for

disposition.          However,    two    months        later,    and    prior       to   the

district court ruling on the motion, the Government moved to

withdraw its Rule 35 motion.                     In its motion, the Government

stated that Farmer had been disciplined by prison authorities

for   possessing       marijuana.       At       a   hearing    on    the    motion,     the

district      court    granted    the   Government’s           motion       to    withdraw.

Farmer timely appealed.



                                         II.

      The United States Supreme Court has held that a district

court   may    grant    a   downward     departure        in    the    absence      of   the

Government’s Rule 35 motion if: (1) the government has obligated

itself in the plea agreement to move for a departure; or (2) the

government’s refusal to move for a departure was based on an

unconstitutional motive, such as race or religion.                               See United

States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994) (citing Wade

v. United States, 504 U.S. 181 (1992)).                    Here, Farmer does not

argue that the Government breached the plea agreement or that

the Government’s decision to withdraw its motion was based on an

unconstitutional        motive.         Instead,        Farmer       argues       that   the

district court erred by permitting the Government to withdraw

its Rule 35 motion where the Government had represented that he

                                             3
had completed his assistance, and the district court abused its

discretion in not holding an evidentiary hearing on his motion. 2

We find that Farmer’s arguments are foreclosed by United States

v. Hartwell, 448 F.3d 707 (4th Cir. 2006).

     In   Hartwell,   the   defendant   pled   guilty   and   agreed   to

cooperate with the Government for a further reduction of his

sentence.   In exchange for his cooperation, the Government, in

the plea agreement, stated:

     that [the Government] reserved “its option to seek any
     departure from the applicable sentencing guidelines,
     pursuant to Section 5K of the Sentencing Guidelines
     and Policy Statements, or Rule 35(b) of the Federal
     Rules   of  Criminal   Procedure,  if   in   its  sole
     discretion, the United States determines that such
     departure is appropriate.”

Id. at 710 (emphasis added).     Within one year of the defendant’s

conviction, the Government filed a Rule 35(b) motion but asked

that it be held in abeyance pending the defendant’s continued

cooperation.    A year-and-a-half later, the Government filed a

memorandum recommending that the defendant’s sentence be reduced

from life imprisonment to 38 years imprisonment based on his

cooperation.   A few months later, the defendant filed a motion

     2
       Whether the Government has the discretion to withdraw its
Rule 35 motion is a question of law which we review de novo.
Hunton & Williams v. U.S. Dept. of Justice, 590 F.3d 272, 284
(4th Cir. 2010).    We review Farmer’s claim that the district
court should have held an evidentiary hearing for an abuse of
discretion. See United States v. Pridgen, 64 F.3d 147, 150 (4th
Cir. 1995).



                                   4
and affidavit seeking an evidentiary hearing on the Government’s

Rule 35(b) motion, alleging that the Government had breached the

plea agreement and stating that the Government had promised to

reduce    his    life   sentence       to     18   years.      As    a    result    of   the

defendant’s       motion       (and         alleged      false      statements),         the

Government      moved    to    withdraw        its    Rule     35(b)      motion.        The

defendant promptly moved to strike his own affidavit, admitting

it   contained       false      statements.              Thereafter,        without       an

evidentiary hearing, the district court permitted the Government

to withdraw its Rule 35 motion.

     On    appeal,      we    held    that     the    plea    agreement     language      in

Hartwell – i.e., “in its sole discretion” – gave the Government

the discretion of whether to pursue a Rule 35 motion and also

included the discretion to withdraw it.                      Id. at 718.        We further

held that the Government’s language in its memorandum supporting

its Rule 35(b) motion, representing that Hartwell had provided

assistance and his sentence should be reduced, did not alter the

Government’s discretion.              See Id. at 719.          Finally, we held that

because    the    Government          had    the     discretion      to    withdraw      its

motion,    “the    district      court       did   not   abuse      its   discretion      in

denying Hartwell an evidentiary hearing.”                     Id. at 720.

     We    find    Farmer’s          appeal    wholly     analogous        to    Hartwell.

Here, the Government did not obligate itself to file a Rule 35

motion in the plea agreement and, indeed, expressly retained its

                                              5
discretion to pursue (or not) a Rule 35 motion.                             See J.A. 15.

(specifying that “the Government is not promising to move for

departure pursuant to U.S.S.G. §5K1.1, 18 U.S.C. §3553(e) or

Fed. R. Crim. P. 35”) (emphasis added).                         This       discretion    to

file       a   Rule    35(b)    motion,         therefore,      likewise       gave     the

Government       the    discretion        to       withdraw    such    a    motion.     See

Hartwell,       448    F.3d    at   718.            Further,    like       Hartwell,    the

Government represented that Farmer had provided assistance and

that the Rule 35(b) motion was ripe for disposition.                             However,

as we held in Hartwell, such a representation does not affect

the Government’s discretion to withdraw its motion prior to the

district court ruling on the motion.

       Finally, because we hold that the Government retained its

discretion to withdraw its Rule 35 motion, we do not believe the

district       court    abused      its        discretion      in     not    holding     an

evidentiary hearing in this case.                       Accordingly, the district

court did not err in allowing the Government to withdraw its

Rule 35 motion. 3


       3
        We disagree with the dissent’s characterization of our
holding.     The dissent argues that under our holding, the
“[G]overnment retained absolute and unfettered discretion to
withdraw its Rule 35(b) motion,” and the Government’s discretion
“has   no   bounds.”    This  assertion  ignores   the  specific
limitations we recognized from the outset – namely, that the
Government could not withdraw a Rule 35 motion if (1) it bound
itself in the plea agreement, or (2) its withdrawal is based on
an unconstitutional motive.     See Wallace, 22 F.3d at 87.
(Continued)
                                               6
                              III.

     For the foregoing reasons, we affirm the decision of the

district court.

                                                        AFFIRMED




Further, we disagree with the dissent’s analysis that the
Government’s post-plea representation that it would present a
specific account of Farmer’s cooperation modifies the original
plea agreement.    We find no support in law to support this
contention   and   do   not   believe  that   the   Government’s
representations here divest it of the discretion it has under
Hartwell to withdraw the Rule 35(b) motion.       In short, the
dissent’s analysis is misplaced in light of the facts and
controlling law.   At bottom, the Government did not promise to
make a Rule 35 motion, and it had the discretion to withdraw any
such motion that it did make so long as there was no
unconstitutional motive in doing so.



                               7
GREGORY, Circuit Judge, dissenting:

       The majority finds that the government retained absolute

and unfettered discretion to withdraw its Rule 35(b) motion.

Under its approach, such discretion has no bounds.                             However, the

government       in   this      case     relinquished      its     initial         discretion

when, after it filed a Rule 35(b) motion, it represented to the

court that Farmer completed his assistance and therefore the

government       would     detail       such    assistance        at    the     Rule      35(b)

hearing.         In     other    words,       the    government’s        representations

ripened    its    initial       discretionary        motion      into     an    irrevocable

act.    Because I believe the issue of whether Farmer’s sentence

should be reduced was reserved solely for the district court

from that point forward, I respectfully dissent.

       Although the government had no legal obligation under the

initial plea agreement to file a Rule 35(b) motion, it did in

fact file a Rule 35(b) “placeholder motion” on January 23, 2004,

requesting       that    “a     ruling       . . .   be   held    in    abeyance,         until

[Farmer]    has       completed        his    assistance.”         J.A.       25   (emphasis

added).     While the motion makes no reference to retaining any

discretion       to     withdraw       the    motion,     we     may    infer      that    the

government retained discretion in the event that Farmer did not

complete his assistance to its satisfaction.                           See, e.g., United

States v. Hartwell, 448 F.3d 707, 719 (4th Cir. 2006) (emphasis

added) (finding that the government had discretion to withdraw


                                               8
the Rule 35 motion and “that this discretion included the right

to withdraw that motion for Hartwell’s failure to cooperate”).

What the motion makes clear is that the bargained-for exchange

was     Farmer’s       continued         cooperation           for    the     government’s

subsequent support for a Rule 35(b) motion ruling.

       More than four years later, the government filed a response

to Farmer’s request for Rule 35(b) hearing.                          It is this response

that represents the termination of the government’s discretion

concerning       whether     to     pursue       a     Rule      35(b)      motion.          The

government’s response on June 12, 2008, stated that Farmer had

“completed his assistance” and that at the requested hearing,

“the       Government      will     present       a     specific       account         of    the

defendant’s cooperation.”                J.A. 29-30 (emphasis added). 1                      From

that    point    forward,     the    government          was     obligated       to    set   out

Farmer’s cooperation.

       Whether     a    sentencing       reduction          is   ultimately           warranted

based      on   Farmer’s    cooperation          is    an   issue     to    be    determined

exclusively by the district court.                     See United States v. Stumpf,

476 F.2d 945, 946 (4th Cir. 1973) (per curiam) (noting that a

Rule 35(b) motion is “addressed to the sound discretion of the

district        court”).          Rule     35         provides       that    “[u]pon         the


       1
        This latter promise is left out of the majority’s
description of the government’s June 12, 2008, response.




                                             9
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

another person.”        Fed. R. Crim. Pro. 35(b)(1) (emphasis added).

The government not only filed a placeholder motion within the

one-year time period, it later submitted that the matter was

ripe for disposition.          Promising to detail Farmer’s cooperation

at the hearing and informing the court that Farmer’s assistance

was   complete      brought    at    end    to    the     government’s      ability    to

withdraw its Rule 35(b) motion.

      By crying “discretion,” the government cannot be allowed to

thwart   an   essential       function      of    the     court,    consideration       of

filed    motions.       Under       the    majority’s        approach,        after    the

assistance     is    complete       and    the    government        has    requested    a

ruling, at the very hearing it requested, the government could

withdraw a Rule 35(b) motion just as the court is considering

the merits and is minutes away from issuing its ruling from the

bench.    There must be a boundary to the government’s ability to

renege   on   an    unconditional         Rule    35(b)    motion     filed    with    the

court.    I find that such line has been crossed in this case.

The   government,     of    course,       would    be   free   at    the    hearing     to

present any evidence relevant to sentencing.                        However, the fact

that Farmer was disciplined by prison authorities for possessing




                                           10
marijuana 2 does not forfeit the already-filed Rule 35(b) motion

given      the    government’s       representations         to     the      court   and   the

court’s inherent power to hear motions.                          The ultimate decision

is still the court’s, not the government’s.

       Furthermore,           it   is     the     government’s         relinquishment       of

discretion in its June 12, 2008, response that distinguishes

this case from our decision in United States v. Hartwell, 448

F.3d 707, a case the majority, in error, asserts controls the

outcome.          In        Hartwell,     the     Rule    35(b)     placeholder       motion

specifically        reserved       the     government’s      discretion        to    withdraw

“if the defendant fails to fulfill his responsibilities.”                                  448

F.3d       at    711.         In   the     government’s          subsequent      memorandum

supporting its Rule 35(b) motion, “[in] addition to detailing

the nature and value of Hartwell’s cooperation, the government

also outlined problems with his cooperation.”                          Id.     By providing

both    details        of    the   value    of    Hartwell’s      cooperation        and   the

problems associated with it, the government made apparent that

its    ultimate         support     for    a     Rule    35(b)    ruling      was    not   yet

determined.             The    government        then    added     a    footnote      to   the

memorandum        specifically          retaining       discretion      to    withdraw     the

       2
       This happened before the government submitted to the court
that Farmer completed his assistance.        Indeed, Farmer was
subject to a discipline hearing on March 16, 2006, more than two
years before the government filed a motion with the court
stating that the matter was ripe for disposition.




                                                 11
motion based on its determination that substantial assistance

had not been provided:

      The   Government  considers  defendant’s  anticipated
      truthful testimony against [B.N.] as the principal
      basis for the filing of this motion.     If, for any
      reason, defendant fails to provide truthful testimony
      during the [B.N.] prosecution, the Government will
      take the position that defendant has engaged in a
      material breach of his plea agreement and his
      commitment to provide substantial assistance to the
      Government.

Id. (alteration in the original) (emphasis added).                    Thus, the

government made clear that the assistance constituting the basis

for the motion was not yet complete, and therefore, we found

that “in the government’s March 10, 2003 memorandum in support

of its Rule 35(b) motion, . . . there is no language to suggest

a relinquishment of the government’s discretion.”                 Id. at 719.

      In the case before us, the government’s response on June

12, 2008, contains language abandoning discretion.                   As opposed

to the government’s memorandum in Hartwell making clear that

Hartwell’s future assistance was critical to the government’s

support of its Rule 35(b) motion, here, the government stated

that Farmer had “completed his assistance.”                Furthermore, unlike

the   memorandum   in    Hartwell,    the       response   here    indicates    no

problems with Farmer’s assistance.                Indeed, to this day, the

government   points     to   no   flaws    in    the   substantial    assistance

Farmer provided.        And while the government explicitly retained

discretion in its Hartwell memorandum, in Farmer’s case, the


                                      12
government   did   just    the   opposite     by   promising     that    at   the

requested    hearing,     “the   Government    will    present    a     specific

account of the defendant’s cooperation.”             Whereas the memorandum

in Hartwell made clear that the government had not yet ceded its

discretion, today we have before us a case where the government

stated that the Rule 35(b) motion was “ripe for disposition.”

See J.A. 29.    Therefore, not only is Hartwell inapposite, but it

supports Farmer’s position that the government no longer had

discretion to withdraw.

     Based on the foregoing analysis, I find that the district

court erred as a matter of law when it permitted the government

to withdraw its Rule 35(b) motion.                 The court erred in not

considering whether Farmer’s sentence should be reduced based on

the substantial assistance that he provided.                   Accordingly, I

would reverse the decision of the district court and remand with

instructions that the court consider the government’s Rule 35(b)

motion.




                                     13
