                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1031n.06

                                           No. 11-6250                                   FILED
                                                                                     Sep 26, 2012
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )
v.                                                    )       ON APPEAL FROM THE UNITED
                                                      )       STATES DISTRICT COURT FOR
CLIFTON MAXWELL, aka Mugsy,                           )       THE EASTERN DISTRICT OF
                                                      )       TENNESSEE
       Defendant-Appellant.                           )




       Before: SILER, COOK, Circuit Judges and STEEH, District Judge.*

       STEEH, District Judge. Clifton Maxwell challenges the denial of his motion to reconsider

and reopen for hearing his request for a sentence reduction under Federal Rule of Criminal Procedure

35. We reject his argument and affirm.

                                                 I.

       Maxwell pled guilty to a drug trafficking offense and possession of firearms. Two prior

felony drug convictions supported a statutorily mandated life imprisonment for the drug offense.

A consecutive mandatory minimum of five years’ imprisonment applied to the firearm offense.

However, because of Maxwell’s substantial assistance in a murder trial, the government filed a

motion, pursuant to United States Sentencing Guidelines § 5K1.1, for downward departure and



       *
       The Honorable George C. Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 11-6250
United States v. Maxwell

recommended a sentence within the Guidelines range that would have applied absent the mandatory

minimum; i.e., 292 to 365 months for the drug offense, plus five consecutive years for the firearm

offense. The district court granted the government’s motion for downward departure and selected

a sentence at the middle of the recommended range—328 months for the drug charge, followed by

60 months for the firearm offense. The district court noted that it would consider a further sentence

reduction later if the government filed a motion under Federal Rule of Criminal Procedure 35, and

if Maxwell continued to assist the government.

       Although Maxwell was not ultimately required to testify at trial, he continued to provide

substantial assistance. The government sought further reduction of Maxwell’s sentence under Rule

35(b)(2)(C), and proposed a sentence of 272 months followed by a mandatory 60-month term for his

firearm offense. The district court granted the government’s motion.

       Maxwell now contends that the district court "violated the law when it merely rubber

stamped the government's reduction in sentence recommendation . . . rather than making an

independent assessment of the nature, extent, and value of the cooperation."

                                                 II.

       We review the district court’s decision to grant the government’s Rule 35 motion and to deny

Maxwell’s motion for reconsideration and an evidentiary hearing for an abuse of discretion.

Shropshire v. United States, 278 F. App’x 520, 526 (6th Cir. 2008); Small v. United States, 100 F.

App’x 504, 506 (6th Cir. 2004); United States v. Moran, 325 F.3d 790, 794 (6th Cir. 2003); United

States v. Brummett, 786 F.2d 720, 723 (6th Cir. 1986).



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No. 11-6250
United States v. Maxwell

       Maxwell relies on United States v. Grant, 636 F.3d 803, 816 (6th Cir. 2011) (en banc) to

argue that the discretion enjoyed by a district court in deciding a Rule 35(b) motion does not allow

the court to simply rubber stamp the government's reduction recommendation, as that practice could

mean that a prosecutor rather than a neutral magistrate controls the sentencing process. Grant, 636

F.3d at 819 (Merritt, J., concurring opinion). We find nothing in the record to indicate that the

district court failed to exercise its independent judgment in determining the value of Maxwell's

assistance when it agreed with the government. Merely agreeing with the government’s assessment

of the value of a defendant's assistance—particularly when the defendant has not provided his own

recommendation concerning the value of that assistance and does not dispute the government's

description of his assistance—does not amount to an unlawful ceding of authority. We stated in

Grant that the district court’s determination on a Rule 35 motion "is discretionary, as is the extent

of any reduction given," and that the district court retains "broad discretion . . . in valuing [that]

assistance." Id. at 816. In the absence of evidence to the contrary, we hold that the district court

acted within its broad discretion in granting the motion.

       Maxwell also contends that the district court was unaware of its discretion to sentence below

the government's recommendation. Based on the hearing transcript from the sentencing, it appears

that the district court fully appreciated its authority to deny or disagree with the government's

requests for sentence reduction. ("I was strongly inclined to simply deny any motion for downward

departure, which I have the discretion to do.")

       Maxwell faults the district court for "rel[ying] solely on the information submitted by the

government," but does not contest the accuracy of that information or otherwise contend that it did

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United States v. Maxwell

not fully reflect his assistance to law enforcement. No abuse of discretion was committed by the

district court in relying upon undisputed and accurate information to rule upon the motion.

       Last, Maxwell contests the district court’s denial of his motion for reconsideration and an

evidentiary hearing. He asserts that counsel formerly in the case had intended a much greater

sentence reduction. Nothing in the record suggests that the district court abused its discretion in

denying the motion. Maxwell neither disputed the accuracy of the government’s description of his

post-sentencing assistance nor alleged that he provided additional assistance that the district court

should consider. In fact, he simply disagreed with the district court’s assessment of the sentencing

reduction he should receive for that assistance. Prior counsel’s intentions would have been irrelevant

to the district court’s assessment of the value of Maxwell’s post-sentencing assistance. Furthermore,

an evidentiary hearing is not required to decide a Rule 35 motion. United States v. Moran, 325 F.3d

790, 794 (6th Cir. 2003); accord. United States v. Brummett, 786 F.2d 720, 723 (6th Cir. 1986).

       The district court acted within its sound discretion in ordering a sentence reduction as

recommended by the government’s Rule 35 motion and correctly denied Maxwell’s motion for

reconsideration and an evidentiary hearing. Its judgment is AFFIRMED.




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