                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted August 18, 2005*
                            Decided September 22, 2005

                                      Before

                     Hon. RICHARD A. POSNER, Circuit Judge

                     Hon. DIANE P. WOOD, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 04-4079

UNITED STATES OF AMERICA,                      Appeal from the United States
    Plaintiff-Appellee,                        District Court for the Northern
                                               District of Illinois, Eastern Division
      v.
                                               No. 94 CR 787-1
RAYNARD McDOWELL
    Defendant-Appellant.                       Suzanne B. Conlon
                                               Judge.

                                    ORDER

       This appeal concerns Raynard McDowell’s attempt to secure a sentence
reduction under Federal Rule of Criminal Procedure 35(b). McDowell contends that
an assistant United States attorney in the Central District of Illinois promised to
reward his cooperation in that district by using Rule 35(b) to reduce his sentence
imposed in the Northern District of Illinois. McDowell asked the sentencing court in
the Northern District to compel the government to file a Rule 35(b) motion, but the
court declined without explanation and without calling for a response. We vacate that
order and remand for further proceedings.



      *
      After examining the briefs and record, we have concluded that oral argument
is unnecessary. Accordingly, this appeal is submitted on the briefs and record.
See Fed. R. App. P. 34(a)(2).
No. 04-4079                                                                     Page 2

       In December 1994, Chicago police caught McDowell moving nearly 100 kilograms
of cocaine from his car into two other cars. McDowell admitted he had distributed the
same amount of cocaine every month for five years while participating in a large-scale
drug ring associated with the Gangster Disciples. He agreed to cooperate and provided
the government valuable information at great risk to himself and his family. But as
he later admitted, he also abused his position as an informant by planting false
evidence in an attempt to frame a Gangster Disciple. McDowell’s misconduct was
discovered in time to thwart an unjust conviction, but as a consequence, the
prosecution was unwilling to call him as a witness and so his value to the government
was diminished. McDowell eventually pleaded guilty in the Northern District to
distributing over 150 kilograms of cocaine and to money laundering. See 21 U.S.C.
§ 841(a)(1); 18 U.S.C. § 1956(a)(1)(B)(I). At sentencing in April 1995, the government
moved for a substantial-assistance downward departure under U.S.S.G. 5K1.1 and
asked the district court to sentence McDowell to a term 20 percent below the
applicable guideline range of 292 to 365 months. The district court granted the motion,
sentencing McDowell to 233 months’ imprisonment.

        McDowell’s plea agreement with the Northern District contemplated his
continuing cooperation “throughout and beyond the period of his sentence.” McDowell
complied, resulting in the seizure of $7 million in assets and the indictment of several
of his former associates. In September 1996, more than a year after sentencing, the
government in the Northern District moved for a reduction of McDowell’s sentence
under Rule 35(b). The AUSA requested a 53-month decrease based on the information
McDowell provided after his arrest. The district court granted the motion, though it
reduced McDowell’s sentence by only 12 months to 221 months.

       Chagrined that the district court declined to shave more time off his original
sentence, McDowell appealed. We pointed out that, under the version of Rule 35(b)
then in effect, the motion was filed outside the one-year deadline for motions premised
on information known to the defendant before sentencing. See United States v.
McDowell, 117 F.3d 974, 979 (7th Cir. 1997). Because we could not tell from the record
when McDowell acquired the information on which the Rule 35(b) motion was based,
we remanded to the district court for further factual development. See id. at 978, 980.
On remand the district court asked the parties to provide evidence that the motion fell
within the exception for after-acquired evidence, but neither party responded. Thus
concluding that it never had the authority to grant the reduction, the district court in
October 1997 reinstated the original sentence of 233 months.

      The AUSA for the Northern District filed another Rule 35(b) motion in April
1998. This time the AUSA contended that McDowell was entitled to a further
reduction based on his “vicarious cooperation” in persuading his child’s mother, Naseen
Soldana, to testify in another prosecution about drug transactions she had witnessed.
McDowell had also witnessed these transactions and disclosed the information to
authorities, but the government was unwilling to put him on the stand because of
No. 04-4079                                                                      Page 3

concerns about his credibility. The government contended that this motion was timely,
despite the fact that the information was known and disclosed by McDowell before his
sentencing, because the motion “could not have been made before Soldana actually
testified.” The district court declined to grant the motion. The court not only rejected
the government’s argument that it met the one-year limitation, but also observed that
neither party had provided legal support for the “vicarious cooperation” theory.

       Six years later, in October 2004, McDowell filed a pro se motion in the Northern
District asking the sentencing court to compel the government to file a third Rule 35(b)
motion. In his motion McDowell alleges that an AUSA in the Central District of
Illinois welshed on a promise to get his sentence reduced by 25 percent under Rule
35(b) in exchange for his cooperation in that district’s investigation and prosecution of
Cornelius Lee. We take the facts as McDowell describes them in the verified motion.

       McDowell was in Florida serving his Northern District sentence when he was
contacted in 1998 by DEA Special Agent Bump, who was leading the Cornelius Lee
investigation. Bump proposed that if McDowell would provide information that proved
“useful in their arrest or conviction of Lee, a Rule 35(b) motion would be filed with the
court . . . in favor of a reduction of his federal sentence.” McDowell conveyed his
acceptance through Bump and was then moved to Peoria, Illinois, where he was
debriefed by Bump and AUSA Westphal from the Central District. McDowell provided
“very detailed” information about Lee and was then asked to testify before a grand jury
in the Central District; AUSA Westphal promised that McDowell’s “assistance would
be rewarded by the AUSA’s office filing a Rule 35(b) motion with the district court.”
After McDowell testified, Bump and Westphal told him he did “‘a great job’ and that
the AUSA’s office would be filing the promised Rule 35(b) motion with the district court
where [he] had been sentenced.” McDowell was returned to Florida, and after Lee was
indicted McDowell contacted Agent Bump to inquire about the Rule 35(b) motion.
Bump told McDowell that a motion would be forthcoming once Lee was arrested and
it was known whether he intended to go to trial. When Lee pleaded guilty in 1999,
Bump “again assured” McDowell that the motion would be filed based on his grand jury
testimony. However, in a telephone conversation on June 15, 2004, Bump informed
McDowell that a new AUSA had taken over for Westphal and refused to pursue a Rule
35(b) motion because “McDowell was not called back to provide testimony at Lee’s
criminal trial.”

        In his motion to compel, McDowell argued in part that AUSA Westphal had
“obligated” the government to file the motion by inducing his cooperation through the
promise of a reduced sentence. According to McDowell, Westphal had “bargained
away” the government’s “discretionary powers under the terms of the agreement.”
McDowell contended that the government’s “irrational refusal” to seek a reduction on
his behalf violated his due process rights because the decision was unrelated to any
legitimate government purpose, was motivated by bad faith, and constituted an abuse
of its discretion.
No. 04-4079                                                                       Page 4

      The district court did not invite a response from the government in either the
Northern or Central Districts and denied McDowell’s motion to compel without any
explanation. The district court might have presumed that no motion under Rule 35(b)
could be granted because of the same timeliness problem encountered twice before.
But Rule 35(b) changed substantially in the interim between the court’s previous
rulings and McDowell’s present motion. The December 2002 amendment to the rule
added two additional exceptions to the existing exception for motions filed outside of
the one-year limitation. The government may now file a motion under Rule 35(b) more
than a year after sentencing if any of the following conditions are met:

      (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 usefulness
      was reasonably apparent to the defendant.

See Fed. R. Crim. P. 35(b)(2). We cannot tell whether the new exceptions might apply
to McDowell’s cooperation because we do not know from the record whether he
disclosed what he knew about Lee to investigators in the Northern District, or whether
Lee was even a subject of interest to prosecutors in the Northern District.

       On appeal McDowell renews his arguments that the AUSA in the Central
District promised him a reduction under Rule 35(b) in exchange for debriefing and
testifying before the grand jury. He contends that the district court erred in failing to
compel the government to follow through on that promise. McDowell concedes,
however, that AUSA Westphal, because he was acting for the Central District, was not
in a position to guarantee that McDowell’s sentence would be reduced since it was
imposed in the Northern District.

       The government—through the United States Attorney for the Northern
District—responds narrowly. It does not contend that McDowell would not be able to
avail himself of the new version of Rule 35(b) that took effect after his cooperation, and
so we express no opinion on the matter. See United States v. Moreno, 364 F.3d 1232,
1234-35 (11th Cir. 2004) (holding that Supreme Court order providing for application
of new version of rule to all cases “pending” as of December 1, 2002, means that any
Rule 35(b) motion filed after that date benefits from expanded time limit). Neither
does the government contend that prosecutors in the Northern District were not
obligated or willing to follow through on a promise made by an AUSA for the Central
No. 04-4079                                                                      Page 5

District. See United States v. Ingram, 979 F.2d 1179, 1184-85 (7th Cir. 1992) (holding
that unambiguous plea agreement between District of Colorado and defendant was not
binding on prosecutors in other districts). Nor does the government contend that
McDowell’s purported agreement with AUSA Westphal would be unenforceable for
some other reason.

       What the government does argue is that McDowell’s agreement with the Central
District allowed prosecutors there to decide whether his assistance was substantial,
and to withold a motion under Rule 35(b) if they concluded it was not. But that is no
answer because it ignores McDowell’s allegation that AUSA Westphal in the Central
District agreed that a Rule 35(b) motion would be filed if McDowell debriefed and
testified before the grand jury in the Lee investigation, which he did. The government
is certainly correct that it can reserve for itself the question whether a defendant’s
assistance has been substantial; that is the norm. See United States v. Kelly, 337
F.3d 897, 902 (7th Cir. 2003); United States v. Jones, 209 F.3d 991, 998 (7th Cir. 2000).
But, as we have recognized, the government can also bargain away its discretion. See
United States v. Lezine, 166 F.3d 895, 900-03 (7th Cir. 1999); United States v. Burrell,
963 F.2d 976 (7th Cir. 1992). And that is what McDowell claims happened here.

        The government concedes that if we do not accept its position then the proper
remedy is to remand this case to the district court. See United States v. Frazier, 213
F.3d 409, 419 (7th Cir. 2000) (remanding for evidentiary hearing to determine whether
government was required to move for 5K1.1 reduction as promised in plea agreement).
We agree that a remand is the appropriate course. McDowell’s verified motion is
specific enough to provide a “sufficient threshold showing” to allow for further inquiry.
See Wade v. United States, 504 U.S. 181, 185-87 (1992). McDowell’s allegations may
be untrue or inaccurate, or the government may have a sound basis for its decision not
to file a Rule 35(b) motion. If his allegations are true, we see no apparent reason that
the agreement should not be given effect and his assistance rewarded.

      The district court’s order denying McDowell’s motion to compel is VACATED,
and the case is REMANDED for further proceedings.
