                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1243

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

R ONALD J. R ICHARDSON,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 02 CR 1101-2—David H. Coar, Judge.



    A RGUED JANUARY 27, 2009—D ECIDED M ARCH 12, 2009




  Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
  P OSNER, Circuit Judge. After being convicted of a variety
of financial crimes and sentenced to 140 months
in prison, Ronald Richardson assisted the government
in an unrelated prosecution. The government offered to
submit a motion to the sentencing judge under Fed. R.
Crim. P. 35(b), asking the judge to reduce the length of
the sentence by 15 percent on the basis of Richardson’s
assistance, but only if Richardson agreed to withdraw
his appeal from his conviction, which was pending. He
2                                               No. 08-1243

refused, and, still within a year of his having been sen-
tenced, filed his own Rule 35(b) motion, complaining
that the government’s refusal to file such a motion on his
behalf had been unreasonable, since the assistance he
had provided the prosecution in the other case was,
according to one prosecutor, “remarkable.” After we
affirmed Richardson’s conviction in United States v.
Ghilarducci, 480 F.3d 542 (7th Cir. 2007), the judge dis-
missed the Rule 35(b) motion for want of jurisdiction,
precipitating this appeal from the dismissal.
  Rule 35(b) authorizes a reduction in the length of a
defendant’s sentence (provided the reduction is sought
within a year), on the ground of “substantial assistance
in investigating or prosecuting another person,” “upon the
government’s motion.” The government made no such
motion. Richardson is not the government, and the ques-
tion (or rather the first question) that the appeal presents
is whether, though he cannot file a Rule 35(b) motion,
he can challenge the government’s refusal to file such a
motion—can, in other words, file a motion to compel
the government to file a Rule 35(b) motion.
  The argument that he can is based on the following
language in Wade v. United States, 504 U.S. 181, 185-86
(1992): “federal district courts have authority to review
a prosecutor’s refusal to file a substantial-assistance
motion and to grant a remedy if they find that the
refusal was based on an unconstitutional motive” or “was
not rationally related to any legitimate Government end.”
But the motion in Wade was not a motion to reduce sen-
tence, a motion authorized by Rule 35(b), but instead was
a motion under section 5K1.1 and 18 U.S.C. § 3553(e), a
No. 08-1243                                                   3

motion made before sentencing. A sentence of course is
appealable (unless the defendant has waived his right to
appeal, or forfeited it by delay beyond the deadline
for appealing), and on appeal the defendant can challenge
it on whatever ground might be available, such as an
improper refusal by the government to have asked the
judge for a lighter sentence because of the assistance
that the defendant had given. But once the defendant
has been sentenced, the district court can revise the
sentence (so far as bears on this case) only “to the
extent . . . expressly permitted by . . . Rule 35,” 18 U.S.C.
§ 3582(c), and that express permission is limited to
making revisions in response to a motion by the govern-
ment.
  It is true that in United States v. Wilson, 390 F.3d 1003 (7th
Cir. 2005), we reviewed—and reversed—the denial by
the district court of a motion to compel the government
to file a Rule 35(b) motion. But the opinion does not
discuss why Rule 35, rather than, as we are about to see,
28 U.S.C. § 2255, is the right procedural vehicle, and the
absence of any discussion means that there is no holding
on the point that might bind us in this case. See
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
119 (1984); Hagans v. Lavine, 415 U.S. 528, 533 n. 5 (1974);
Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir. 2008).
  This does not end the appeal, however, because, as we
have just intimated, Richardson’s motion to compel the
government to file a Rule 35(b) motion can be construed
as a collateral attack on his sentence under 28 U.S.C. § 2255.
If the government’s refusal to file the motion unless
he waived his right to appeal his conviction deprived him
4                                               No. 08-1243

of liberty without due process of law—which it did if, in
the Supreme Court’s words in Wade, the government’s
action “was not rationally related to any legitimate Gov-
ernment end”—then the sentence cannot stand even
though Richardson mislabeled his motion.
  He concedes that a waiver of the right to appeal—the
concession the government insisted on—is valid; it is little
different from a defendant’s agreeing to plead guilty,
which entails a waiver of his right to a trial, and to an
appeal if he loses at the trial. The question is whether
making the waiver a condition of the government’s agree-
ing to file a motion for a reduction of sentence can be
said to be “rationally related to any legitimate Govern-
ment end.” The answer is yes. United States v. Newson, 515
F.3d 374, 378 (5th Cir. 2008); United States v. Beatty, 538
F.3d 8, 16 (1st Cir. 2008); United States v. Blanco, 466 F.3d
916, 918-19 (10th Cir. 2006). The government doesn’t
have to reward criminals who cooperate with it with a
lighter sentence, Wade v. United States, supra, 504 U.S.
at 185, and since it doesn’t have to, it can bargain with
them, seeking concessions that need only be rationally
related to some legitimate governmental end. Getting a
defendant to abandon a challenge to his conviction is a
legitimate such end, as it secures the conviction and
spares the government the time and expense of de-
fending an appeal.
  Our opinion in Wilson noted that a concession on
which the government insists need not be directly related
to the defendant’s providing assistance to the govern-
ment in prosecuting or investigating. 390 F.3d at 1010; see
No. 08-1243                                               5

also United States v. Duncan, 242 F.3d 940, 949 (10th Cir.
2001); United States v. Butler, 272 F.3d 683, 687 (4th Cir.
2001). The government was willing to ask for a 15 percent
sentencing discount for Richardson, but it wanted to
make sure that he would serve the 85 percent, rather
than perhaps succeed in knocking out the sentence, in
whole or part, on appeal.
   Richardson argues that Wilson, which held that the
concession on which the government conditioned filing
a Rule 35(b) motion was not rationally related to a legiti-
mate governmental end, is indistinguishable from this
case. But it is not. In that case the defendant discovered
that by mistake he had been imprisoned for a previous
crime for two additional years, and he considered filing
a civil suit seeking redress for the mistake. (Later he did
file a suit, against a warden, the Bureau of Prisons, and
others, under the tort claims act and Bivens; it was eventu-
ally dismissed.) The government refused to file a Rule
35(b) motion unless the defendant agreed not to sue. Al-
though heading off civil litigation is a legitimate gov-
ernment end, it has nothing to do with prosecution, and
some connection with prosecution, however indirect,
might be thought an implicit qualification of “any” legiti-
mate governmental end. United States v. Wilson, supra,
390 F.3d at 1010; United States v. Duncan, supra, 242 F.3d
at 949. Otherwise the government could condition the
filing of a Rule 35(b) motion on the defendant’s agreeing
to join the army or to forgo commissary privileges.
  This case is different. The defendant wanted a lower
sentence; the government wanted him to accept the
6                                                No. 08-1243

sentence rather than challenge it on appeal. That was a
reasonable condition. Any doubt on that score is dispelled
by Town of Newton v. Rumery, 480 U.S. 386 (1987), which
upheld a deal by which criminal charges were dropped
in exchange for the defendant’s agreeing not to bring a
civil rights suit challenging his arrest. See also Dye v.
Wargo, 253 F.3d 296, 301-02 (7th Cir. 2001). Rumery was
like any other case in which the contenders, having
colorable claims against each other, agree by way of
settlement to drop both.
   So insofar as it challenges the district court’s refusal to
compel the government to file a Rule 35(b) motion, the
appeal is dismissed; insofar as it challenges the legality
of the sentence because of the government’s failure to
file such a motion, it is affirmed.




                            3-12-09
