                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2729

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

G REGORY S HELBY,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 95 CR 69—Charles P. Kocoras, Judge.



   A RGUED S EPTEMBER 17, 2009—D ECIDED O CTOBER 19, 2009




  Before P OSNER, M ANION, and E VANS, Circuit Judges.
  P OSNER, Circuit Judge. Rule 35(b)(2) of the federal
criminal rules authorizes the district court, “upon the
government’s motion made more than one year after
sentencing,” to “reduce a sentence if the defendant’s
substantial assistance” falls into specified categories. The
only question we are asked to decide is whether the
rule allows the district judge to reduce the sentence on
the basis of the factors that he would consider in initial
2                                              No. 08-2729

sentencing under the Booker regime—namely the factors
listed in 18 U.S.C. § 3553(a).
   In 1996 Judge Kocoras sentenced the defendant to
295 months in prison for drug and firearm offenses.
The sentence was the sum of two consecutive sentences:
a 235-month sentence for the drug offenses—a sen-
tence at the bottom of the guidelines sentencing range—
and a 60-month statutory-minimum sentence for the
firearm offense; this sentence the statute required be
consecutive to the drug sentence. At the time, the guide-
lines were mandatory. The judge expressed regret at
having to impose such a long sentence on a 26-year-old;
he said that “the guideline calculations and the gun
count take us well past what might be necessary, both to
punish you and to provide some measure of deterrence
and to vindicate these laws, but I do not have that free-
dom.” We affirmed the sentence. 121 F.3d 1118 (7th Cir.
1997).
  In 2008 the government filed a Rule 35(b)(2) motion,
recommending that the defendant’s sentence be reduced
by 30 months to reflect substantial assistance that he had
provided more than a year after he had been sentenced.
After two hearings on the motion, the judge reduced
the sentence not by 30 months but by 115 months, to
180 months (that is, from a shade under 25 years to
15 years), on the basis of the sentencing factors that, now
that the guidelines are merely advisory, judges are re-
quired by 18 U.S.C. § 3553(a) to consider in sentencing
a defendant initially.
  We can assume that if the judge was authorized to
reduce the defendant’s sentence on the basis of those
No. 08-2729                                               3

factors rather than just on the basis of the judge’s evalua-
tion of the defendant’s assistance, the 115-month reduc-
tion in the defendant’s sentence was permissible. But we
do not think the judge was authorized to consider
those factors.
  The purpose of Rule 35(b)(2) is to facilitate law enforce-
ment by enabling the government to elicit valuable assis-
tance from a criminal defendant more than a year after
he was sentenced by asking the sentencing judge to
reduce the defendant’s sentence as compensation for
the assistance that he provided. (Rule 35(b)(1) permits a
similar motion to be made within a year after sentencing,
but defines eligible assistance more broadly than
Rule 35(b)(2) does.)
  A provision of the guidelines that resembles Rule 35(b),
section 3E1.1(b), increases the sentencing discount for
acceptance of responsibility upon the government’s
motion for such an increase, as compensation for the
defendant’s having saved the government resources by
timely notification of his intention to plead guilty. We
have said that this section “confers an entitlement on the
government: if it wants to give the defendant additional
credit for acceptance of responsibility, perhaps to induce
additional cooperation, and can satisfy the criteria in the
subsection, it can file a motion and the defendant will get
the additional one-level reduction in his offense level,
though . . . [because the guidelines are now advisory] this
may not determine his actual sentence.” United States v.
Deberry, 576 F.3d 708, 710 (7th Cir. 2009) (emphasis in
original). Rule 35(b) likewise confers an entitlement on
4                                                No. 08-2729

the government rather than on the defendant; and al-
though it does not specify the entitlement, as section
3E1.1(b) does (an additional one point off the offense
level for acceptance of responsibility), it contains no
suggestion that the filing of the motion allows the defen-
dant to argue for resentencing on the basis of something
other than the assistance he gave the government.
  To suppose that the happenstance of the govern-
ment’s wanting to reward the defendant modestly for
some post-sentencing cooperation reopens the entire
sentencing process, permitting or even requiring the
district judge to consider the full range of sentencing
factors in 18 U.S.C. § 3553(a) just as he did when he first
sentenced the defendant (or in this case as he would
have done had the guidelines been merely advisory
then), would create a triple anomaly. It would create
arbitrary distinctions between similarly situated defen-
dants; it would create the equivalent of a judge-adminis-
tered parole system for defendants lucky enough to be
the subject of a Rule 35(b)(2) motion, even though courts
are not parole boards and the Sentencing Reform Act
of 1984 abolished parole in federal cases; and it would
impair the objective of Rule 35(b), which as we said is
to assist law enforcement.
  Imagine two criminals, A and B, who committed the
same crime, were identically positioned in relation to
the guidelines and the statutory sentencing factors, and
were given the same 20-year sentence. Ten years later A
happens to overhear a cellmate confess to a crime.
He reports this to the authorities and later testifies against
No. 08-2729                                               5

the cellmate. The government seeks to reward him by
moving under Rule 35(b)(2) for a 10 percent reduction
in the length of his sentence, to 18 years. The judge,
however, considering the section 3553(a) factors, reduces
the sentence to 10 years, and since A has served 10 years
he goes free. B, though eager to assist the government
and obtain a reduced sentence as a reward, never has
an opportunity to assist the government and as a result
never has a chance to ask the judge to reduce his sentence
on the basis of the section 3553(a) factors. As a result, he
serves twice as long a sentence as A, rather than serving
only two years longer (two years being the sentencing
discount recommended by the government for A in our
example).
  Judge Kocoras appears to have felt that he was
correcting another arbitrary difference—that between
defendants such as Shelby sentenced before Booker made
the guidelines advisory and defendants sentenced after.
But the correction is severely incomplete, for how many
Rule 35(b)(2) motions are made? There are no statistics,
but we do know that the total number of both Rule 35(b)(1)
and Rule 35(b)(2) motions that were granted in fiscal year
2008 was only 1,709, though there were a total of 74,493
federal sentences imposed that year. United States Sen-
tencing Commission, 2008 Sourcebook of Federal Sentencing
tab. 62, tab. N (2008), http://www.ussc.gov/ANNRPT/2008/
SBTOC08.htm (visited Sept. 30, 2009). One imagines that
most were motions under Rule 35(b)(1), for after years of
imprisonment a prisoner is unlikely to be able to render
substantial assistance to the government. Prisoners on
whose behalf no Rule 35(b)(2) motion is made cannot
6                                               No. 08-2729

get their pre-Booker sentence revised on the basis of sub-
stantial assistance to the government. Nor does Booker
always work in favor of a defendant; the discretion it
confers on sentencing judges is used to raise as well as to
lower guidelines sentences, since “the only change” in
sentencing brought about by Booker was “the degree of
flexibility judges . . . enjoy in applying the guideline
system.” McReynolds v. United States, 397 F.3d 479, 481 (7th
Cir. 2005). Because “Booker does not apply to the scores
of defendants whose sentences were final when Booker
was handed down,” “it would be unfair to allow a
full Booker resentencing to only a subset of defendants
whose sentences were lowered by a retroactive amend-
ment.” United States v. Cunningham, 554 F.3d 703, 708-09
(7th Cir. 2009).
  If Judge Kocoras had the authority he claimed, we
would have a regime of indefinite sentencing for defen-
dants in cases in which the government files a Rule 35(b)(2)
motion. For he based the reduction in the defendant’s
sentence not only on the circumstances that existed at
the time of the original sentencing but also on events
that had occurred in the 13 years since, such as the death
of the defendant’s mother, the defendant’s pursuit of
educational opportunities in prison, and a promise to
him of a job if he were released. Post-sentencing develop-
ments are considered by a parole board in deciding
whether to grant parole; had Congress wanted them to
figure in the length of imprisonment of a federal
offender it would not have abolished parole.
  Allowing the judge to redo the sentence from the
ground up when a Rule 35(b) motion is filed would
No. 08-2729                                             7

almost certainly reduce the number of such motions
filed, to the detriment of the government—in whose
interest, as we said, the rule was created—and of those
criminal defendants who would be the beneficiaries of
such a motion if it were filed but do not benefit because
it is not filed. The government wanted the defendant’s
sentence reduced by 10 percent; the judge reduced it by
almost 40 percent. Had the government known this
could happen, it might well have decided not to file the
motion, and then the defendant wouldn’t have gotten a
minute off his long sentence.
  No doubt, when first adopted, the rule for which the
defendant contends would increase the incentive of
prisoners to cooperate by offering them the possibility
that materialized for the defendant in this case. But they
would quickly learn that the government would rarely
make such motions any longer, not only because by
doing so it would lose control of the sentencing process
but also because the proceedings on the motion would
be more complex, since the defendant could ask to be
resentenced from the ground up. The resentencing
would be the equivalent of an initial sentencing—as it was
in this case. Judge Kocoras conducted two hearings before
issuing the revised sentence. The government’s motion
had been filed on January 31; the revised sentence was
issued on June 30, five months later. Granted, a factor in
the delay in resentencing was the defendant’s motion
under 18 U.S.C. § 3582(c)(2) for a reduction in his sen-
tence on the basis of the retroactive amendment of the
crack-cocaine offense levels in the guidelines. That was
an alternative ground for the judge’s reducing the defen-
8                                                No. 08-2729

dant’s sentence, but one that the defendant concedes is
foreclosed by United States v. Forman, 553 F.3d 585, 587-88,
590 (7th Cir. 2009) (per curiam), which is why we
confine our analysis to Rule 35(b)(2).
   The logic of our position might seem to be that the
judge should not be permitted to reduce the sentence
below the level specified in the government’s motion even
if he bases the reduction solely on his evaluation of the
defendant’s assistance. For that would loosen the gov-
ernment’s control over the prisoner’s fate. And the
rule differs from the parallel provision of the guidelines,
section 5K1.1, which authorizes a reduction in the guide-
lines sentence for substantial assistance, because that
section is explicit that the government’s evaluation of the
assistance is merely one factor to be considered by the
court in deciding by how much to reduce the defendant’s
sentence. E.g., United States v. Udo, 963 F.2d 1318, 1319
(9th Cir. 1992); United States v. Haack, 403 F.3d 997, 1004-05
(8th Cir. 2005); cf. United States v. Gangi, 45 F.3d 28, 31
(2d Cir. 1995).
  But cases under a closer parallel to Rule 35(b) than
section 5K1.1—namely 18 U.S.C. § 3553(e), which autho-
rizes a reduction for substantial assistance below certain
mandatory minimum sentences upon the government’s
motion—permit the judge to reduce the sentence by
more than the government requested. United States v. Wills,
35 F.3d 1192, 1196 (7th Cir. 1994), overruled on other
grounds by Melendez v. United States, 518 U.S. 120 (1996);
United States v. Burns, 577 F.3d 887, 895 (8th Cir. 2009)
(en banc); United States v. Johnson, 393 F.3d 466, 468-69
No. 08-2729                                                  9

(4th Cir. 2004). The cases that have considered whether
the judge can do this when the motion is a Rule 35(b)(2)
motion indicate that he can. United States v. Gangi, supra,
45 F.3d at 30-32; United States v. Poland, 562 F.3d 35, 37, 40-
41 (1st Cir. 2009); cf. United States v. Doe, 940 F.2d 199, 203
n. 7 (7th Cir. 1991); United States v. Marks, 244 F.3d 971, 973
n. 1 (8th Cir. 2001); United States v. Awad, 371 F.3d 583, 588
(9th Cir. 2004). The government seems content with such
a result, because it does not argue that the judge in
this case would have been forbidden to reduce the sen-
tence by more than the government requested in its
motion; maybe it thinks prisoners will be more willing to
assist it if they have a shot at persuading a neutral arbiter
to compensate them more generously than the govern-
ment proposes to do. The government’s argument, rather,
is that the judge can decide by how much to reduce the
sentence only on the basis of his evaluation of the defen-
dant’s assistance, and not on the basis of the sentencing
factors in section 3553(a).
  The defendant pitches his argument for the propriety
of what Judge Kocoras did mainly on a change in the
wording of Rule 35(b). Until amended in 2002, the rule
provided that on the government’s motion the judge
could “reduce a sentence to reflect a defendant’s subse-
quent, substantial assistance.” The amendment deleted “to
reflect,” and the rule now reads “reduce a sentence if
the defendant’s substantial assistance involved” the
provision of information satisfying the rule’s criteria for
substantial assistance. But the Committee’s note to the
amendment states that the changes are (with exceptions
immaterial to this case) merely “stylistic.” Since the title
10                                               No. 08-2729

of the rule was and is “Reducing a Sentence for Sub-
stantial Assistance,” the words “to reflect” had been
redundant.
   The defendant also relies on several cases for his inter-
pretation of the rule, but we need discuss only two. The
first, United States v. Chapman, 532 F.3d 625 (7th Cir. 2008),
held that the judge can decrease the reduction sought
in the motion on the basis of the sentencing factors in
18 U.S.C. § 3553(a). But we didn’t hold that the judge
was authorized to use those factors to increase the reduc-
tion. The second case, United States v. Grant, 567 F.3d 776
(6th Cir. 2009), holds, contrary to our view, that the
current rule does allow the sentencing judge to do what
Judge Kocoras did—resentence the defendant de novo.
The court relied on the language of the amended rule
(that is, the deletion of “to reflect”), but also was troubled
by what it thought to be the anomaly of the judge’s
being able to shrink the sentence reduction on the basis
of the statutory sentencing factors but not to enlarge the
reduction when those factors point in the opposite direc-
tion. The Sixth Circuit did not like what it called a “one-
way ratchet.” 567 F.3d at 783.
  But the court overlooked the critical difference
between an initial sentencing and a later alteration of the
sentence.
  Prosecution and defense cannot make an agreement on
the sentence to be imposed that binds the sentencing
judge. The prosecutor cannot say to the judge, “the defen-
dant and I have agreed that the best disposition of this
theft case would be for the defendant’s right hand to be
No. 08-2729                                                11

amputated, so please so order.” The judge cannot
impose an illegal sentence. He therefore cannot impose
a sentence that is inconsistent with the statutory sen-
tencing factors. If the government said, “although the
defendant is a mass murderer sentenced to life in prison
and has served only two years of his sentence, he has
given us such great information that we recommend
that his sentence be reduced to time served,” the judge
would not be bound. The most that the prosecutor and
the defendant, if they have agreed on the sentence, can
do to obtain that sentence is to further agree that if the
judge refuses to impose it their agreement is rescinded
and they are back at the plea-bargaining table. Fed. R.
Crim. P. 11(c)(1), (5)(B).
  So the judge must reserve the right to condition the
grant of a Rule 35(b) motion, in whole or in part, on its
consistency with the statutory sentencing factors, in
order to make sure that the reduced sentence is not unjust.
United States v. Chapman, supra, 532 F.3d at 629; see also
United States v. Poole, 550 F.3d 676, 680-81 (7th Cir. 2008);
United States v. Doe, 351 F.3d 929, 933 (9th Cir. 2003);
United States v. Manella, 86 F.3d 201, 204-05 (11th Cir. 1996)
(per curiam). But there is no comparable reason for the
judge to reexamine the entire sentence under section
3553(a). The sentence originally imposed on Shelby was
a lawful sentence; he does not suggest otherwise. It was
imposed by the judge on the basis of his consideration
of the factors that were relevant to sentencing under the
guidelines regime of that time. It was not a sentence
imposed by agreement of the parties and rubber-stamped
by the judge. The only aspect of the defendant’s sen-
12                                                No. 08-2729

tencing that had not received judicial consideration of
relevant factors was the proposed reduction in his
original sentence for assisting the government long after he
was sentenced.
  We have rejected the “ratchet” argument in the related
contexts of motions for reduction of sentence under 18
U.S.C. § 3553(e), see United States v. Thomas, 11 F.3d 732,
737 (7th Cir. 1993); cf. United States v. Poland, supra, 562
F.3d at 40-41, and under 18 U.S.C. § 3582(c), United States
v. Cunningham, 554 F.3d 703, 708 (7th Cir. 2009). The first
of these sections provides, as we noted earlier, for a
sentence reduction below a mandatory minimum, and the
second for reductions to reflect certain changes to the
sentencing levels set by the Sentencing Commission.
In both these statutory settings we have held that the
authority to reduce the sentence does not allow a full
resentencing. Even though section 3582(c) directs the
judge to consider the section 3553(a) factors, he may do
so only in deciding whether to grant a sentencing reduc-
tion less than the maximum allowed. The defendant’s
argument that our decision in United States v. Chapman,
supra, allows this is incorrect. United States v. Poole, supra,
550 F.3d at 680; see also United States v. Chapman, supra, 532
F.3d at 629; United States v. Doe, supra, 351 F.3d at 933;
United States v. Manella, supra, 86 F.3d at 204-05. We cannot
think of any basis for treating motions under Rule 35(b)(2)
differently.
  The Grant opinion acknowledges that its position is
inconsistent with that of other circuits, including ours:
No. 08-2729                                                13

      Other circuits that have addressed this issue have
    tended to conclude that § 3553(a) factors can be con-
    sidered in Rule 35(b) motions, but only for purposes
    of reducing the size of a downward departure, never
    for increasing it. In United States v. Chavarria-Herrara,
    the Eleventh Circuit held that, in reducing a sentence
    under Rule 35(b), a district court “may not rely on
    factors other than the substantial assistance of the
    defendant.” 15 F.3d 1033 (11th Cir. 1994). This
    holding was premised entirely on “[t]he plain
    language of Rule 35(b)[, which] indicates that the
    reduction shall reflect the assistance of the defendant;
    it does not mention any other factor that may be
    considered.” Id. at 1037. In United States v. Manella, the
    Eleventh Circuit modified this rule, holding that it
    was permissible for a district court to consider factors
    besides substantial assistance when deciding a Rule
    35(b) motion, but only for the purposes of reducing
    the extent of the downward departure. 86 F.3d at 204-
    05. That is, a “district court may consider the § 3553(a)
    factors in order to refuse to grant a Rule 35(b) motion
    or to grant a smaller reduction than requested by
    the government. However, in deciding to grant a
    reduction, the district court may not consider any
    factor that may militate in favor of the reduction
    other than the defendant’s substantial assistance.”
    United States v. Ross, 280 Fed. Appx. 896, 897-98 (11th
    Cir. 2008) (citation omitted). This rule has been
    adopted by the Ninth Circuit, see Doe, 351 F.3d at 933,
    and cited approvingly in dicta by the Seventh, see
    United States v. Poole, 550 F.3d 676, 680 (7th Cir. 2008).
567 F.3d at 781.
14                                             No. 08-2729

  For the reasons we’ve given, we are persuaded to
adhere to the majority position. The judgment is there-
fore reversed and the case remanded for reconsideration
of the government’s motion.
                              R EVERSED WITH D IRECTIONS.




  E VANS, Circuit Judge, dissenting. Judge Kocoras sen-
tenced the then 26-year-old Gregory Shelby to serve
285 months back in 1996. At that time, the judge expressed
regrets—the sentence was far too long, he lamented, but
his hands were tied by mandatory guidelines that
shackled his ability to impose a sentence that was
fair and reasonable. Today, the majority holds that
Judge Kocoras overstepped his bounds when he recently
reduced the now 40-year-old Shelby’s sentence to a term
of 180 months. Because I would affirm the judge’s well-
reasoned decision, I respectfully dissent.
  Recent cases, most notably United States v. Booker, 543
U.S. 220 (2005), and Kimbrough v. United States, 128 S. Ct.
558 (2007), represent a sea change in federal sentencing
law. It is within that sea change that Judge Kocoras
acted to give some relief to a defendant who has been
behind bars since the first Clinton Administration. In
doing so, the judge considered the § 3553(a) factors. The
majority says he was wrong to do so. I disagree.
No. 08-2729                                                  15

  In United States v. Chapman, 532 F.3d 625 (7th Cir. 2008),
the government moved, pursuant to Rule 35(b)(2), to
reduce the defendant’s original 120-month sentence by
36 months to a term of 84 months. The district judge,
relying on the § 3553(a) factors, gave the defendant half
a loaf—an 18-month reduction to a term of 102 months.
In affirming that result we said:
    [A] faithful and pragmatic adherence to the mandate of
    18 U.S.C. § 3553(a) counsels that the nature and extent
    of any reduction be determined in light of all the
    sentencing factors set forth in the statute. Post-arrest
    cooperation cannot be assessed in a vacuum.
    Whether such cooperation represents an opportunistic
    attempt to obtain a sentence reduction or a genuine
    alteration in the defendant’s life perspective can
    best be determined by assessing that cooperation in
    light of earlier criminal history and the nature of the
    crime for which the defendant is presently being
    sentenced.
532 F.3d at 629. If it’s kosher to rely on the § 3553(a) factors
in giving only 50 percent of a sentence reduction sought
by the government in a Rule 35 resentencing, why can’t
those factors also be considered in giving the defendant
more of a reduction?
  In United States v. Grant, 567 F.3d 776 (6th Cir. 2009), the
defendant was initially sentenced to a term of 25 years.
Subsequently, the government filed a Rule 35(b) motion
asking for a sentence reduction to 16 years. The district
judge went along with the program. The defendant ap-
pealed, arguing that the judge erred when he took the
16                                             No. 08-2729

position that he was powerless to consider anything
other than “substantial assistance” in a resentencing
proceeding under Rule 35(b). The Sixth Circuit agreed and
reversed. The district judge, the court held, “is permitted
to consider other factors normally required for a just
sentence under § 3553(a).” Unlike the majority, I would not
pooh-pooh the Sixth Circuit’s decision because it rested,
in part, on the removal of the “to reflect” language from
the present version of Rule 35(b). I would instead
embrace the view taken by our sister circuit.
  Following the Sixth Circuit would also have the addi-
tional benefit of discouraging fudging by judges during
Rule 35(a) resentencing proceedings. Judge Kocoras, of
course, is a savvy 29-year veteran of the district court.
I have no doubt whatsoever he could have said that
Gregory Shelby’s substantial assistance was of much
more value than would be reflected by a modest
reduction of only 30 months. Giving any kind of aid to
prosecutors is dangerous for prisoners, the judge could
have said, and Shelby deserved a much higher reward:
letting the word get out that you are snitching while
in prison can be extremely hazardous to one’s health. In
other words, the judge could have given Shelby a much
greater reduction than 30 months if only he had confined
his stated reasons to the substantial assistance rubric.
This is game-playing, and we should not encourage it.
  Finally, I wonder why the government even appealed
in this case. Certainly it has the right to do so, but
I would hope it has much better things to do. Without an
appeal, Shelby’s sentence reduction would have passed
No. 08-2729                                              17

under the radar screen without notice. Is it really all that
important that Judge Kocoras gave Shelby the kind of
sentence he would have preferred to have given him
over a decade ago? After all, it’s not like we’re running
out of people behind bars. According to recent govern-
ment statistics reported by a Pew Charitable Trust study,
the prison population in America has increased by
700 percent since 1970. The United States, the study
reports, incarcerates more people than Russia, South
Africa, Mexico, Iran, India, Australia, Brazil, and Canada
combined—at an average cost of $22,650 per year, per
inmate. In the big picture, I don’t think the adjustment to
Mr. Shelby’s sentence is worth all the fuss it has aroused.




                          10-19-09
