          United States Court of Appeals
                      For the First Circuit

No. 08-1203

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         JONATHAN POLAND,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,

              Torruella and Boudin, Circuit Judges.


     Judith H. Mizner, Assistant Federal Public Defender, Federal
Public Defender's Office, for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief for appellee.



                          April 2, 2009
            BOUDIN, Circuit Judge.           The issue the parties have

framed on this appeal is whether, where the district court adjusts

a prior sentence to account for post-sentence cooperation by the

defendant, the adjustment may reflect factors other than that

cooperation.     We sustain the district court's disposition of this

case but on a narrower ground, deferring until necessary the larger

issue--which may arise only rarely and implicates a difficult and

delicate issue of statutory construction.

            The defendant, Jonathan Poland, was eighteen years and

three months old when he and his seventeen-year old cousin (who was

just shy of his eighteenth birthday) made and detonated two pipe

bombs during the Spring of 2004. Poland was indicted and convicted

of unlawfully possessing an unregistered destructive device, 26

U.S.C. §§ 5861(d), 5841, 5845(f), 5871 (2006), and use of an

explosive   to   maliciously   damage   or    destroy   property   used   in

interstate commerce, 18 U.S.C. § 844(i) (2006).

            The explosion caused little damage but was close to a

truck stop office and fuel of various kinds and so was no minor

prank.   Poland was sentenced to 63 months imprisonment, the three

months over and above the mandatory minimum sentence of 60 months

being added because he committed perjury during a suppression

hearing.     Poland appealed, but later withdrew the appeal and

cooperated with the government.




                                  -2-
            The cooperation led to successful government proceedings

against    Poland's   cousin    but,    the    matter   having     begun    with   a

juvenile charge, the cousin received a sentence of only three

months.    After Poland cooperated, the government moved to reduce

Poland's sentence to 48 months.         Fed. R. Crim. P. 35(b)(1).          Poland

sought a sentence below 48 months, arguing that all of the ordinary

statutory factors could be considered afresh, see 18 U.S.C. §

3553(a),    and   stressing    the     much   longer    sentence    he     received

compared to his cousin.

            At a hearing on the motion, the district judge asked the

parties to address the impact of new language in Rule 35(b).                 Under

precedents    construing      former    versions,      sentencing    courts    may

consider only the extent of the cooperation given in calculating

the reduced sentence.          The district court noted that both the

rule's new language and an advisory committee note suggested that

on re-sentencing any of the factors identified in 18 U.S.C. §

3553(a) could now be considered.              The pertinent language of the

respective changes appears below.

            In the end, the district court held that to so read the

new rule would work a substantive change and violate the Rules

Enabling Act,     28 U.S.C. § 2072(a).         United States v. Poland, 533

F. Supp. 2d 199, 210 (D. Me. 2008).              To avoid this outcome, the

district court followed precedent under the old rule and held that

"the new Rule 35(b) . . . limit[s] the judge, as before the


                                        -3-
amendment, to consider only substantial assistance factors in

support of the amount of a reduction, notwithstanding the amendment

and the Advisory Committee Note."    Id. at 211.

          The government's recommendation did not bind the district

court, which concluded that a reduction to 40 months properly

accounted for the cooperation provided by Poland.     However, the

court said that were it free to consider factors other than

cooperation--in particular "the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct," 18 U.S.C. § 3553(a)(6)--it would

reduce Poland's sentence to 30 months.    Id. at 213-14.

          Poland now appeals, arguing that under the current Rule

35(b), the judge was free once the motion was made to consider

factors other than cooperation in reducing the sentence.   We have

jurisdiction over the appeal, 28 U.S.C. § 1291; United States v.

McAndrews, 12 F.3d 273, 277-78 (1st Cir. 1993); and, as the issue

is whether the district court misinterpreted governing law, review

is de novo and our authority to provide it is clear despite a

circuit split that might matter if the issue were not purely

legal.1


     1
      Other circuits, disagreeing with McAndrews, regard the
appealability of a Rule 35(b) decision as limited by 18 U.S.C. §
3742, e.g., United States v. Haskins, 479 F.3d 955, 957 (8th Cir.
2007) (per curiam), but even if that limitation applied, the claim
here would be reviewable because--if the district court were
mistaken--the sentence would reflect a mistake of law and so be
"imposed in violation of law" under section 3742(a)(1).

                               -4-
              The merits of the legal issue, to which we now turn,

require a precise understanding of how Rule 35(b) evolved.         Before

the sentencing guidelines, Rule 35(b) permitted a sentencing judge

to reduce a sentence, more or less without condition, within 120

days of the sentence or disposition of any appeal.       This open ended

approach was substantially altered by the Sentencing Reform Act of

1984, Pub. L. No. 98-473, Title II, 98 Stat. 1987 ("the Reform

Act"), which adopted a framework for sentencing guidelines that

aimed    at    restricting   the   discretion   of   judges   in   initial

sentencing.

              Consonantly, the Reform Act limited the judge's authority

to alter a final sentence, confining it to three categories, 18

U.S.C. § 3582(c), of which only one directly concerns us.              It

reads:

              The   court  may  not   modify  a   term  of
              imprisonment once it has been imposed except
              that--

              (1) in any case--
              ....

              (B) the court may modify     an imposed term of
              imprisonment to the extent   otherwise expressly
              permitted by statute or      by Rule 35 of the
              Federal Rules of Criminal    Procedure . . . .

The Reform Act also rewrote Rule 35(b) to provide:

              The court, on motion of the Government, may
              within one year after the imposition of a
              sentence, lower a sentence to reflect a
              defendant's subsequent, substantial assistance
              in the investigation or prosecution of another
              person who has committed an offense, in

                                    -5-
           accordance with the guidelines and policy
           statements issued by the Sentencing Commission
           . . . .

Reform Act of 1984, § 212(b)(emphasis added).

           Before the Reform Act became effective in 1987, Congress

again added provisions to both 18 U.S.C. and to Rule 35, which

furnished the district court authority, in both initial sentencing

and re-sentencing, to impose sentences below prescribed statutory

minimums based on a government substantial assistance motion, Anti-

Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, §§ 1007, 1009,

100 Stat. 3207-08 (1986); but we defer discussion of those changes.

           Given the underscored language of Rule 35(b) as amended

by the 1984 Reform Act--"to reflect a defendant's subsequent,

substantial   assistance"--other     circuit    courts    (unsurprisingly)

concluded that only the defendant's substantial assistance could be

considered in granting or measuring a Rule 35(b) reduction.           E.g.,

United States v. Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir.

1994).     This circuit (and other circuits) similarly construed

parallel language in the statute that permits a sentence below a

statutory minimum to reflect substantial assistance. E.g., United

States v. Ahlers, 305 F.3d 54, 60 (1st Cir. 2002).

           In 2002, in re-drafting the rules to improve clarity, the

advisory committee proposed a "stylistic" change to Rule 35(b),

excising   the   language   that   required    that   a   reduced   sentence

"reflect" a defendant's substantial assistance.           Fed. R. Crim. P.


                                    -6-
35 advisory committee's note, 2002 amendments.        Instead, the 2002

text provided only that "reducing the sentence accord[] with the

Sentencing Commission's guidelines and policy statements."2

          In fact, neither before nor after has the Commission

adopted guidelines or policy statements directed to post-sentence

reductions based on substantial assistance.       There has been from

the outset a general guideline provision, not using "reflect"

language, for guideline departures based on substantial assistance,

seemingly directed to original sentencing. U.S.S.G. § 5K1.1. This

circuit, and other courts, read this guideline as implicitly

incorporating such a requirement.       United States v. Chestna, 962

F.2d 103, 106-07 (1st Cir.), cert. denied 506 U.S. 920 (1992).

          Despite the 2002 elision, the few circuits to address the

issue continued to read Rule 35(b) as limiting post-sentence

reductions to assistance-related factors.      E.g., United States v.

Dobson, No. 07-15732, 2008 WL 4962927 at *2-3 (11th Cir. Nov. 21,

2008) (unpublished); United States v. Lindsay, 254 F. App'x. 168,

169-70 (4th Cir. 2007) (unpublished), cert. denied 128 S.Ct. 1688

(2008).   Precedent   is   limited   because   many   circuits   limit   a

defendant's ability to appeal decisions on Rule 35(b) motions.

E.g., Haskins, 479 F.3d at 957.


     2
      Since 1984, a number changes have been made to Rule 35(b);
for example, the rule was altered in 2004 to allow consideration fo
assistance provided after one year after sentencing but only under
stated conditions. Our discussion of rule changes is limited to
those material to the present case.

                                  -7-
              The next step in the chronology was the Supreme Court's

2005 decision in United States v. Booker, 543 U.S. 220 (2005),

making the guidelines advisory rather than mandatory to save them

from constitutional invalidity.        Thereafter, apparently believing

that       Booker   required   this   change,   the   advisory   committee

recommended deletion of Rule 35(b)'s then existing requirement that

a sentence reduction "accord[] with the Sentencing Commission's

Guidelines and policy statements,"3 and the deletion was adopted

through the rules process effective December 1, 2007.

              Rule 35(b) now reads in relevant part, and so read when

the district court considered the government motion in this case,

as follows:

              Upon the 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.

If this language alone were considered, Poland might well plausibly

argue that a re-sentencing court could, in granting a substantial

assistance motion, consider other factors and not just substantial

assistance in setting the new sentence.




       3
      Memorandum from Booker Subcomm. to Advisory Comm. on Criminal
Rules,      4     (Mar.      15,     2005),      available       at
http://www.uscourts.gov/rules/Agenda_Books.htm#criminal. This view
was contrary to that of the Sentencing Commission staff. Letter
from Judith W. Sheon, Staff Director, Sentencing Commission, to the
Standing    Committee     (Feb.    15,    2006),    available    at
http://www.uscourts.gov/rules/CRRules2005.htm.

                                      -8-
           This is so even though the language changes that produced

the present rule resulted from two apparent mistakes. The first is

the   advisory   committee's   belief     that    deleting   the    limiting

"reflect" language from Rule 35(b) in 2002 was mere clarification;

the second is its view that Booker compelled it to delete in 2007

the remaining reference to the guidelines.           The former error is

patent,   although   temporarily    masked   by   the   reference    to   the

guidelines, and stands as caution to restyling projects.

           As for the second change, the revisors' view (although

shared by the Ninth Circuit, United States v. Hicks, 472 F.3d 1167

(9th Cir. 2007)), quite probably misreads Booker.            The jury trial

concerns that led to invalidating mandatory guidelines for initial

sentencing do not bear equally on every regulation of sentencing.

Booker's Sixth Amendment rationale built on a tension with jury

trial values insofar as the guidelines mandated an increased

penalty because of additional conduct (e.g., using a gun, harming

a victim) found only by the judge rather than the jury.

           Neither the language of Booker nor its rationale appears

to constrain Congress' power to delimit, whether by guideline or

otherwise, the conditions on which judges may reduce sentences once

imposed; Congress can surely decide whether and when any reductions

are allowed and surely as well who should make the downward

adjustment and on what basis.       Cf.   United States v. Fanfan, No.

08-2062, 2009 WL 531281, at        *4, ___ F.3d ___ (1st Cir. Mar. 4,


                                    -9-
2009) (constraining downward adjustment under 18 U.S.C. § 3582(c)

based on revision of crack cocaine guideline).

           But despite faulty premises, the 2002 and 2007 changes in

Rule 35(b) were adopted through the rulemaking process, and laws

based on mistaken premises, whether legal or factual, are not

uncommon and are commonly given effect.           Cf. Pernell v. Southall

Realty, 416 U.S. 363 (1974). So such rule changes arguably control

unless barred by the Rules Enabling Act, which famously authorizes

"procedural" rules and provides that "[s]uch rules shall not

abridge, enlarge or modify any substantive right."              28 U.S.C. §

2072(b).

           The district court said that stripping out Congress'

"reflect" language from Rule 35(b) and the limiting reference to

the guidelines would comprise such a "substantive" change barred by

the Rules Enabling Act; thus, the judge read back into the rule the

"requirement   that    the   reduction        'reflect'   the   'subsequent

substantial assistance.'"     Poland, 533 F. Supp. 2d at 211.         This,

the judge said, brought back into play earlier case law almost

uniformly reading such language to exclude non-assistance factors

in determining such a reduction.

           The Rules Enabling Act's key language is opaque and its

few   constructions   have   occurred    in    quite   different   contexts.

Burlington N. R.R. Co. v. Woods, 480 U.S. 1 (1987); Sibbach v.

Wilson, 312 U.S. 1 (1941).     Among other difficulties, the statute


                                  -10-
brings into play both an enduring conundrum--the line between

substance and procedure--and the puzzle of the statute's reference

to "rights."4     The rules process is among the most important

endeavors in the judiciary; any constraining construction of the

statute could have far reaching implications.

            The sentencing question in our case arises out of a fact

pattern that may not be common: usually the only new fact on a Rule

35(b) motion will be the substantial assistance furnished since

other factors will have already been fully considered; it is the

peculiarity here of the belated sentence for Poland's cousin that

created a second argument for a reduction after the original

sentence.    So we choose to affirm the district court's outcome on

a narrower ground and defer for now any encounter with the Rules

Enabling Act.

             Poland's   reduced   sentence   was   below   the   statutory

minimum of sixty months.    18 U.S.C. § 844(i).     Had the substantial

assistance reduction Poland received occurred at the time of his

initial sentencing, it would have been governed by 18 U.S.C. §




     4
      Examples of the vast literature on the topic are Steven B.
Burbank, The Rules Enabling Act of 1934, 130 U. Pa L. Rev. 1015
(1982); John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L.
Rev. 693 (1974); Leslie M. Kelleher, Taking "Substantive Rights"
(in the Rules Enabling Act) More Seriously, 74 Notre Dame L. Rev.
47 (1998); Martin H. Redish & Dennis Murashko, The Rules Enabling
Act and the Procedural-Substantive Tension: A Lesson in Statutory
Interpretation, 93 Minn. L. Rev. 26 (2008).

                                  -11-
3553(e), which was added to the Reform Act by the previously cited

Anti-Drug Abuse Act of 1986; the provision states (emphasis added):

           Upon motion of the Government, the court shall
           have the authority to impose a sentence below
           a level established by statute as a minimum
           sentence so as to reflect a defendant's
           substantial assistance in the investigation or
           prosecution   of   another  person   who   has
           committed an offense. Such sentence shall be
           imposed in accordance with the guidelines and
           policy statements issued by the Sentencing
           Commission pursuant to section 994 of title
           28, United States Code.

           Rule 35(b) similarly provides, in language also added in

1986 by the same statute and now in subsection (4), that on the

government's motion based on substantial assistance, "the court may

reduce   the   sentence   to    a   level   below   the   minimum   sentence

established    by   statute."       Traditionally,    the   reductions   for

substantial assistance below the statutory minimum--whether at

initial sentencing or on sentence reduction--have been governed by

the same standards, see, e.g., United States v. Doe, 940 F.2d 199,

203 n.7 (7th Cir.), cert. denied 502 U.S. 869 (1992), as Congress

doubtless intended.

           Courts would surely have reached this result in re-

sentencing cases, even if Congress had not echoed the "reflects"

language in the Reform Act's version of Rule 35(b).                 Had that

phrase been omitted, the courts would still have construed the two

enactments in para materia, there being no obvious reason why

Congress would want the reflects limitation to apply in one context


                                     -12-
but not in the other.    Cf. In re Sealed Case No. 97-3112, 181 F.3d

128, 133 (D.C. Cir. 1999) (noting Rule 35(b), § 3553(e), and §

5K1.1 are to be read "in pari materia").       For mandatory minimums,

but perhaps only for mandatory minimums, the 2002 deletion of the

"reflects" language in the rule may be merely "stylistic."

           To put the matter differently, we hold that for re-

sentence adjustments that go below the statutory mandatory minimum,

Rule 35(b) must be read in conformity with 18 U.S.C. § 3553(e).

Congress has never changed the statutory rule that such reductions

must reflect only the assistance provided.       Nor is there anything

in the "legislative history" of changes to Rule 35(b) that reflects

any desire to create a discrepancy for post-sentence adjustments

below the mandatory minimum.

           Poland's    statutory   mandatory   minimum   sentence   is   60

months.   The district court was entitled to reduce the sentence to

reflect the assistance provided, which it calculated to justify a

sentence of 40 months.       It could not, as we read Rule 35(b),

provide a greater reduction below the mandatory minimum for any

other reason.   This disposes of Poland's reliance on comparability

with his cousin, any alternative interpretation of U.S.S.G. § 5K1.1

or otherwise pertinent sentencing factors prescribed by Congress.

           Affirmed.



                       -Concurring Opinion Follows-


                                   -13-
           TORRUELLA,   Circuit     Judge    (Concurring).     I     join   the

result, but write separately to express my views on our current

sentencing regime as it affected this case.

           As set forth below, all of the parties, including the

district   court,   agreed   that   the     sentencing   disparity    between

Poland's sentence and his cousin's juvenile sentence supported a

sentencing reduction to lessen that disparity.           The plain text of

Federal Rule of Criminal Procedure 35(b), after amendments made to

it in 2002 and 2007, permitted such a reduction.           The parties and

the district court, however, got caught up in the minutiae of

whether those amendments, the latter inspired by Booker, allowed

the district court to provide such a reduction.           Although I agree

with the ultimate result given the existing state of the law, and

thus join the majority's affirmance, I find the events that led to

that result troubling.

           In order to understand my concerns, I will provide some

background that was not essential to the majority opinion but is

relevant here.      After Poland cooperated, the government filed a

motion to reduce Poland's sentence under Rule 35(b), recommending

a 48-month sentence.    Poland filed a responsive memorandum, urging

the district court to look beyond the factors outlined in U.S.S.G.

§ 5k1.1 and consider all factors under 18 U.S.C. § 3553(a).            Poland

specifically asked the court to consider the disparity between

Poland's sentence (63 months) and his cousin's (3 months).


                                    -14-
             A       hearing   on   the   government's     motion    was   held    on

January 9, 2008. The district court prefaced the hearing by asking

the parties to address the recent 2007 amendments to Rule 35(b),

which had occurred a month earlier.               The government, going first,

explained that Poland's cooperation alone "is clearly worthy of

more than what we have asked for," but made its recommendation in

order   to   reflect       Poland's       delay   in   cooperating    until    after

sentencing and his obstruction of justice prior to his decision to

cooperate.           The government then emphasized that Poland's cousin

"received        a    substantially,      substantially    less     sentence    than

Jonathan did," that "the juvenile sentence . . . is not even on the

radar screen," and that "the disparity between the two sentences is

difficult for me to justify at this point," given that "the

juvenile was more culpable and did more."

             When asked by the district court whether the court was

permitted to consider "the 3553(a) factors," and, in particular,

the   sentencing         disparity   in    reducing    Poland's     sentence,     the

government responded:

             I do, I do. I -- at your request I read the
             rule, I read the notation, the commentary to
             the rule, and it was very clear -- I had a
             discussion with [Poland's counsel] about it,
             it was clear to both of us -- that, like a
             typical sentencing, not a re-sentencing or
             situation such as this, if you were -- you are
             essentially to treat the Rule 35 motion in the
             light you would a -- if you were re-sentencing
             Mr. Poland today because you may look beyond
             the guidelines at 3553(a) factors.     And the
             language of the statute used to be simply that

                                          -15-
              you looked at the guidelines, which of course
              the Court knows is now advisory. So I read
              that to mean that the book is open in terms of
              the factors that you may consider both in the
              advisory guidelines as well as 3553(a) factors
              in coming to a conclusion as to what
              percentage of a departure should be imposed if
              a departure should be imposed.

                     So I do believe you can follow 3553(a).
              I would encourage the Court to do so.        I
              certainly   did    so   in   general    terms,
              theoretically, in coming up with the reasons
              why a Rule 35 motion was appropriate. But I
              do think that Mr. Poland has a number of
              indicia in his case that speak directly to
              many of the factors in 3553(a), such as the
              comparison of his behavior to that of a
              juvenile and the disparity between their
              sentences.

When asked, the government clarified that its recommended sentence

of 48-months did not reflect the disparity between Poland and his

cousin's sentences, but admitted that "I don't disagree with

anything that [Poland's counsel] said in his response."                  The

district court asked if the government's "agreement that the

[3553(a)] factors can govern reflect your office's consideration of

the significance of this change?"           The government responded that

the "appellate division" had not addressed the issue.

              After the hearing, the government attorney consulted with

the   U.S.    Attorney's   Office    to   determine    its   position.    On

January 10, 2008, the government filed a memorandum clarifying that

position.     In the memorandum the government stated that "while the

Court   may     consider   3553(a)   factors    in    reducing   Defendant's

sentence, it is the Government's position that it may do so only in

                                     -16-
determining   to   what   extent   to   reduce   the   sentence   based   on

Defendant's cooperation."      Foreshadowing the majority's reasoning,

the Government then stated that "the extent of any reduction is

strictly limited by 18 U.S.C. § 3553(e) in this case as a result of

the mandatory minimum."

          With this background in mind, I stress my discomfort with

a sentencing regime (including its mandatory minimum sentences) in

which the good faith efforts of the parties and the district court

to do the right thing and reflect the disparity between Poland's

sentence and his cousin's sentence, were essentially derailed by

the complexity and uncertainty of the existing state of the law.

The district judge, in fact, stated outright that "[i]f [it] were

able to consider these additional § 3553(a) factors, [it] would

reduce the defendant's sentence to thirty months."            United States

v. Poland, 533 F. Supp. 2d 199, 214 (D. Me. 2008).            Instead, the

district court was reduced to divining the propriety of several

changes to Rule 35(b) in light of Booker, ultimately expressing

some concern that a unconstrained interpretation of Rule 35(b) may

violate the Rules Enabling Act, an Act which, as the sentencing

court admitted, has never in its history caused the Supreme Court

to invalidate a rule.     See id. at 210-11 (citing sources).

          I   also   express   disappointment    with   the    government's

change of position.       That said, the government did go to great

pains to point out that the disparity between Poland's sentence and


                                   -17-
his cousin's sentence was "difficult . . . to justify at this

point" and expressed great sympathy with Poland's position that the

sentencing disparity should be considered.               It is troubling that

such concerns had to fall by the way side.

           Taken together, the district court's and the government's

actions are indicative of a sentencing regime (in particular, the

mandatory minimum in this case) containing little flexibility.                 In

the real life scenario of sentencing, such a regime makes little

sense because it takes away much of the discretion from where it

should be, those on the front lines of the criminal justice system.

Our   sentencing     regime    reflects     the   work   of   persons   with   a

background of much theory and little practice in the art of

sentencing.    I do not begrudge the district court for its care in

attempting to reach the right conclusion.            The issue before us is

difficult, and given the existing state of law, I am forced to

agree   with   the   result.      But   I   am    also   obliged   to   vent   my

frustration with the situation in which we find ourselves mired, a

sentencing regime plagued with uncertainty and rigidity.




                                    -18-
