                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0710n.06

                                          No. 13-1788

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                               FILED
                                                                              Sep 09, 2014
                                                                          DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                       )
                                                )
           Plaintiff-Appellee,                  )         ON APPEAL FROM THE
                                                )         UNITED STATES DISTRICT
v.                                              )         COURT FOR THE WESTERN
                                                )         DISTRICT OF MICHIGAN
RAY HAYNES, JR.,                                )
                                                )
                                                                   OPINION
           Defendant-Appellant.                 )
                                                )


BEFORE: MOORE and COOK, Circuit Judges; STEEH, District Judge.

       KAREN NELSON MOORE, Circuit Judge. Defendant Ray Haynes, Jr. pleaded guilty

to using fire to commit mail fraud in violation of 18 U.S.C. § 844(h)(1) and was sentenced to the

statutory ten-year mandatory minimum. The plea agreement obligated Haynes to cooperate with

the government in the investigation and prosecution of other suspects, and it required the

government to consider whether Haynes’s cooperation amounted to substantial assistance

pursuant to Federal Rule of Criminal Procedure 35(b). Following sentencing, the government

filed a “protective” motion for a sentence reduction under Rule 35(b), but later sought to

withdraw that motion because it believed Haynes failed to provide substantial assistance. On

appeal, Haynes argues that the district court improperly allowed the government to withdraw the

Rule 35(b) motion because withdrawing the motion was a violation of the plea agreement.

       
         The Honorable George Caram Steeh III, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 13-1788
United States v. Haynes


Haynes requests a remand so that the district court can assess the assistance he provided to the

government. Because the government had authority to withdraw its Rule 35(b) motion under the

terms of the plea agreement, we AFFIRM.

                                     I. BACKGROUND

       On September 16, 2009, a grand jury indicted Defendant Ray Haynes Jr. for using fire to

commit mail fraud by burning his house down as part of an insurance fraud scheme in violation

of 18 U.S.C. § 844(h)(1).1 R. 1 (Indictment) (Page ID #1). Three months later, Haynes pleaded

guilty to the charge, which carries a ten-year mandatory-minimum sentence.          R. 16 (Plea

Agreement) (Page ID #39). As part of the plea agreement, Haynes agreed to cooperate with the

government in any investigation or prosecution of other suspects and truthfully testify “before

grand juries and in any court proceedings.” Id. 2–3 (Page ID #40–41). In exchange for Haynes’s

cooperation, the government agreed to “make an evaluation of the Defendant’s cooperation

under this agreement in determining whether to file a motion for reduction of sentence pursuant

to Rule 35(b) of the Federal Rules of Criminal Procedure.” Id. 3–4 (Page ID #41–42). The plea

agreement stated, however, that “such a motion may be made pursuant to law if, and only if, the

Defendant fully cooperates with the Government and materially and substantially assists the

Government in the investigation or prosecution of others.” Id. at 4 (Page ID #42). Further, this

determination would “be made in the sole discretion of the U.S. Attorney’s Office.” Id.




       1
         The grand jury also indicted Haynes for making a false statement to a federal agent in
violation of 18 U.S.C. § 1001, but this charge was dismissed on motion by the government.

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No. 13-1788
United States v. Haynes


       Prior to sentencing, Haynes began cooperating with the government. Haynes made three

proffer statements between October 2009 and January 2010 and testified before a grand jury on

January 12, 2010 regarding the involvement of Gerald Singer, an alleged co-conspirator in the

arson and insurance scheme at issue in Haynes’s Indictment. R. 42 (Gov’t Resp. to Apr. 19,

2013 Order at 17–22) (Page ID #162–67); Appellant Reply Br. at 7. On March 31, 2010, the

district court sentenced Haynes to the ten-year mandatory-minimum term of imprisonment. R.

20 (Sent’g Min.).

       Less than a year later, on March 18, 2011, the government filed a “Request for a

Downward Departure Pursuant to Rule 35 of the Federal Rules of Criminal Procedure.” R. 22

(Gov’t Request for Down. Dept. Pursuant to Rule 35) (Page ID #57). The government explained

that, pursuant to the plea agreement, it was “obligated to give consideration to seeking a

reduction of sentence” if Haynes provided substantial assistance in the investigation or

prosecution of other suspects. Id. at 1 (Page ID #57). The government characterized the filing as

a “protective” motion and stated it was timely under Rule 35(b)(1) because it was filed within a

year of Haynes’s sentencing. Id. at 2 (Page ID #58). The government asked the district court not

to rule on the motion at that time, representing that Haynes’s “future testimony will likely

provide substantial assistance to the prosecution and [sic] may be eligible for relief under Rule

35(b)(2)(B) at a future date.” Id. A few months later, in September 2011, following a request

for a status update by the district court on the issue, the government again represented that the




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No. 13-1788
United States v. Haynes


investigation was ongoing and Haynes’s “cooperation was expected to take place in the future.”

R. 24 (Gov’t Status Update on Request for Down. Dept. at 1) (Page ID #62) (filed under seal).

         On April 4, 2013, the government then filed a “Notice of Intent Not to File Rule 35

Motion.” R. 33 (Gov’t Notice of Intent Not to File Rule 35 Mot.) (Page ID #113). The

government stated that Haynes had testified in the arson trial of Singer, but that on cross-

examination Haynes had provided testimony that contradicted prior statements he had made to

federal agents. Id. at 2–3 (Page ID #114–15). According to the government, this damaged

Haynes’s credibility at trial, and the jury subsequently acquitted Singer of the arson count

involving the fire at Haynes’s residence. Id. at 3 (Page ID #115). The government represented

that based on this, and after considering the circumstances, the U.S. Attorney’s Office’s

“downward departure committee” determined that the government would not file a Rule 35(b)

motion seeking a reduction of Haynes’s sentence. Id.

         In response to the government Notice, Haynes’s counsel conceded that “the Government

clearly acted in good faith by initial [sic] filing the Motion to protect Mr. Haynes [sic] right to a

Rule 35 departure at a later time as it was clear to all parties that his cooperation would not be

completed within the one year time frame for filing a Rule 35 Motion.” R. 40 (Def. Am. Resp.

to Gov’t Notice Not to File Rule 35 Mot. at 1) (Page ID #136). But Haynes contested the

government’s position that Haynes was untruthful in his testimony at trial. Id. at 2 (Page ID

#137).    Haynes argued that he fulfilled his obligations under the plea agreement, and the




                                                 4
No. 13-1788
United States v. Haynes


government should be required to do the same. Id.; see also R. 36 (Def. Resp. to Gov’t Notice

Not to File Rule 35 Mot. at 2–3) (Page ID #126–27).

       The district court heard argument on the issue, during which the government asserted that

“the Rule 35 is not actually filed, not before the Court. [But] [i]f the Court feels it is before the

Court, then we withdraw it.” R. 53 (Hr’g Tr. 5/9/13 at 6:3–5) (Page ID #195). The district court

then permitted the government to withdraw the Rule 35(b) motion. Id. at 34:18-19, 35:21-22

(Page ID #223–24); R. 45 (Dist. Ct. Order at 1–2) (Page ID #172–73).2 The district court found

the government’s actions consistent with its obligations under the plea agreement because the

government evaluated Haynes’s cooperation to determine whether he offered substantial

assistance. R. 53 (Hr’g Tr. 5/9/13 at 34:18–22) (Page ID #223); R. 45 (Dist. Ct. Order at 1–2)

(Page ID #172–73). The district court further found that because the government had sole

discretion to determine whether to file a Rule 35(b) motion and because Haynes offered no

evidence of improper motive, withdrawal of the motion was permissible under the plea

agreement and the district court had no authority to reduce Haynes’s sentence. R. 45 (Dist. Ct.

Order at 1–2) (Page ID #172–73). This appeal followed.



       2
        There is some ambiguity as to whether the district court simply allowed the government
to withdraw its Rule 35(b) motion or expressly granted the government’s motion to withdraw.
Compare R. 53 (Hr’g Tr. 5/9/13 at 34:18–19) (Page ID #223) (“The ruling is that the government
has withdrawn the motion for a downward departure under Rule 35(b)”), with R. 45 (Dist. Ct.
Order at 2) (Page ID #173) (“grant[ing] the Government’s motion to withdraw,” yet,
characterizing the Rule 35(b) motion as “having been withdrawn”). In either case, the district
court ruled that withdrawal of the motion was proper because the government had authority to
withdraw its Rule 35(b) motion under the terms of the plea agreement. See R. 53 (Hr’g Tr.
5/9/13 at 34:18–22) (Page ID #223); R. 45 (Dist. Ct. Order at 1–2) (Page ID #172–73).

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No. 13-1788
United States v. Haynes


                                 II. STANDARD OF REVIEW

       The issue on appeal is whether the district court erred by ruling that the government had

authority to withdraw its Rule 35(b) motion under the terms of the plea agreement. “Plea

agreements are contractual in nature.      In interpreting and enforcing them, we are to use

traditional principles of contract law.” United States v. Robison, 924 F.2d 612, 613 (6th Cir.

1991). “[W]hether the government’s conduct violated the agreement is a question of law that we

review de novo.” United States v. Wells, 211 F.3d 988, 995 (6th Cir. 2000). Similarly, we

review de novo the district court’s interpretation of a plea agreement. United States v. Fitch, 282

F.3d 364, 366 (6th Cir. 2002). When a plea agreement provides the government with “‘complete

discretion’ to file a motion for a downward departure, we limit our review to unconstitutional

motives.” United States v. Villareal, 491 F.3d 605, 608 (6th Cir. 2007) (citing United States v.

Moore, 225 F.3d 637, 641 (6th Cir. 2000)). “[W]e do not review for bad faith when the decision

to file a motion vests within the sole discretion of the government.” Id.

                                        III. ANALYSIS

       Haynes claims on appeal that the government breached the plea agreement because: the

government did not reserve in the plea agreement its right to withdraw a Rule 35(b) motion and

thus bargained away its right to withdraw the motion; and by filing the Rule 35(b) motion in the

first instance, the government conceded that Haynes provided substantial assistance under Rule

35(b)(1), at which point the government should not have interfered with the district court’s

resolution of the motion. Haynes also argues that the district court should not have allowed the



                                                 6
No. 13-1788
United States v. Haynes


government to withdraw the Rule 35(b) motion because the government’s actions violated

principles of fundamental fairness. For these reasons, Haynes claims that remand is necessary so

the district court can consider whether a downward adjustment under Rule 35(b) is warranted.

       We disagree. The plea agreement at issue gave the government “sole discretion” to

determine whether Haynes provided substantial assistance to the government under Rule 35. R.

16 (Plea Agreement at 4) (Page ID #42). Moreover, the government promised only to “make an

evaluation” of Haynes’s assistance, further stressing that a motion for reduction in sentence “may

be made pursuant to law, if and only if, the Defendant fully cooperates with the Government and

materially and substantially assists the Government in the investigation or prosecution of others.”

Id. (emphasis added).

       The government asserts that it evaluated whether Haynes’s assistance was substantial.

Following Haynes’s testimony at trial, the government represents that it consulted the U.S.

Attorney’s Office’s “downward departure committee” to consider whether Haynes’s assistance

warranted a sentence reduction under Rule 35(b). R. 33 (Gov’t Notice of Intent Not to File Rule

35 Mot. at 3) (Page ID #115). Given Haynes’s testimony at trial, the government declined to

authorize the motion. Id.; see also R. 53 (Hr’g Tr. 5/9/13 at 5:22–6:1) (Page ID #194–95)

(representing to the district court that “[a]ll of his testimony was relayed to the Departure

Committee of the United States which made a decision that there will be no Rule 35 at least at

the behest or at the request or the direction of the United States”). Because the plea agreement

gave the government sole discretion to make that finding, we defer to the government’s decision



                                                7
No. 13-1788
United States v. Haynes


absent a showing of unconstitutional motive, see Moore, 225 F.3d at 641, which Haynes does not

attempt to establish here. See United States v. Lukse, 286 F.3d 906, 912 (6th Cir. 2002) (“[T]he

simple denial of the value of such assistance in open court by the government is unreviewable,

but for unconstitutional motivations.”).

       Haynes claims that the government could not withdraw its Rule 35(b) motion under the

terms of the plea agreement because it failed to reserve its right to do so in the agreement itself.

But so holding would require us to ignore completely the very substance of the government’s

“protective” Rule 35(b) motion. The government’s Rule 35(b) motion did not provide any basis

for the district court to grant a sentence reduction based on Haynes’s cooperation up to that

point. Nor does the record support such a finding—although Haynes made three proffers and

testified before a grand jury, these occurred prior to sentencing and “Rule 35(b) operates after

sentence has been imposed.” United States v. Bureau, 52 F.3d 584, 594 (6th Cir. 1995) (internal

quotation marks omitted) (emphasis in original).3 Indeed, the government’s “protective” motion

did not even suggest that it had “made an evaluation” of Haynes’s conduct as the plea agreement

requires at the time it filed the motion. R. 22 (Gov’t Request for Down. Dept. Pursuant to Rule

35) (Page ID #57); R. 16 (Plea Agreement at 3–4) (Page ID # 41–42).



       3
        Although Rule 35(b)(3) permits the court to consider presentence cooperation when
“evaluating” whether the defendant provided substantial assistance, FED. R. CRIM. P. 35(b)(3),
Rule 35(b) is clear that it applies to cooperation that occurred “after sentencing.” FED. R. CRIM.
P. 35(b)(1); see Bureau, 52 F.3d at 594 (comparing the “temporal difference” between U.S.S.G.
§ 5K1.1, a “sentencing tool,” and Rule 35, which “allows the court to resentence the defendant to
reflect substantial assistance rendered after imposition of the initial sentence.”) (internal
quotation marks omitted) (emphasis in original).

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No. 13-1788
United States v. Haynes


       Instead, the motion conditioned any request for a sentence reduction on Haynes’s “future

testimony” at an upcoming trial. R. 22 (Gov’t Request for Down. Dept. Pursuant to Rule 35 at 2)

(Page ID #58). The government made this clear in its response to the district court’s request for

an update when it asked the court to delay ruling on the Rule 35(b) motion until Haynes provided

testimony in an anticipated proceeding. R. 24 (Gov’t Status Update on Request for Down. Dept.

at 2) (Page ID #63) (filed under seal). Given the discretion afforded it under the plea agreement,

the government had authority to withdraw the Rule 35(b) motion after it evaluated the assistance

provided by Haynes and determined it was not substantial. See Shropshire v. United States, 278

F. App’x 520, 526–27 (6th Cir. 2008) (holding the government did not breach the plea agreement

when it withdrew its “saving motion” under Rule 35(b) based on a lack of substantial assistance

by the defendant); United States v. Hartwell, 448 F.3d 707, 718 (4th Cir. 2006) (“We conclude

that the language giving the government ‘sole discretion’ to file a Rule 35(b) motion also

includes the discretion to file a motion to withdraw it.”).

       Haynes’s reliance on United States v. Padilla, 186 F.3d 136 (2d Cir. 1999), to argue that

the government may not withdraw a Rule 35(b) motion absent an express reservation of rights in

the plea agreement is misplaced. In Padilla, the government filed a motion for downward

departure pursuant to U.S.S.G. § 5K1.1 that asserted that the defendant already “had provided

substantial assistance in the investigation and prosecution of other persons.” Id. at 139. And yet

the government later withdrew the motion for a reason unrelated to the defendant’s prior

cooperation with the government, which the Second Circuit found was in violation of the plea



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No. 13-1788
United States v. Haynes


agreement. Id. at 139–42. Here, on the other hand, as set forth above, the government’s

“protective” Rule 35(b) motion suggested that the government had not yet evaluated whether

Haynes had provided substantial assistance when it filed its motion, and instead asserted that it

would make that determination based on Haynes’s future assistance. Because the government

had the “sole discretion” to do so under the plea agreement, withdrawing the motion following

Haynes’s performance at trial was consistent with the plea agreement.

       Similarly, Haynes’s claim that, by simply filing the Rule 35(b) motion, the government

conceded that Haynes provided substantial assistance has no merit. Again, this is contrary to the

substance of the government’s “protective” motion—nothing suggests that the government filed

its motion based on Haynes’s cooperation up to that point; indeed, the government expressly

asked the court to delay ruling on the Rule 35(b) motion because Haynes was expected to testify

for the prosecution in a future trial. R. 22 (Gov’t Request for Down. Dept. Pursuant to Rule 35

at 2) (Page ID #58); see also R. 24 (Gov’t Status Update on Request for Down. Dept. at 1–2)

(Page ID #62–63) (filed under seal) (stating that the government previously asked the court to

delay ruling on the Rule 35(b) motion because “Haynes [sic] cooperation was expected to take

place in the future”). Instead, it appears the government filed its Rule 35(b) motion because it

believed it was required to do so under Rule 35(b)(1), which states that substantial assistance

motions must be filed within one year of sentencing. See FED. R. CRIM. P. 35(b)(1); R. 22 (Gov’t

Request for Down. Dept. Pursuant to Rule 35 at 2) (Page ID #58) (stressing its motion was




                                               10
No. 13-1788
United States v. Haynes


“timely” under Rule 35(b)(1) because it was filed within one year of sentencing). 4 In any event,

given that the government’s motion clearly hinged on its evaluation of Haynes’s future (rather

than past) assistance, simply filing the Rule 35(b) motion did not obligate the government to seek

a reduction in sentence under the terms of the plea agreement.

       Finally, Haynes argues that we should remand for an evidentiary hearing to evaluate

whether the government’s decision to withdraw the Rule 35(b) motion “is consistent with the

broader principles of fundamental fairness.” Appellant Br. at 59. But that is not the standard in

this court. Again, while other circuits disagree, we have held that when a plea agreement affords

the government “‘complete discretion’ to file a motion for a downward departure, we limit our

review to unconstitutional motives.” Villareal, 491 F.3d at 608 (noting the circuit split) (citing




       4
         Haynes argues that “protective” motions are no longer necessary following a 2002
amendment to Rule 35, which permits the government to file a substantial-assistance motion
more than one year after sentencing. See FED. R. CRIM. P. 35(b)(2). This type of motion, in this
context, is not uncommon. See, e.g., Shropshire, 278 F. App’x at 527 (affirming withdrawal of
government’s Rule 35(b) “saving” motion); Hartwell, 448 F.3d at 718 (affirming withdrawal of
government’s Rule 35(b) “placeholder” motion); United States v. Farmer, 382 F. App’x 303,
305 (4th Cir. 2010) (holding that the government could withdraw its “placeholder” motion
despite its representation that the defendant had provided some assistance); United States v.
Whitehead, 217 F. App’x 537, 538–39 (7th Cir. 2007) (characterizing Rule 35(b)(1)
“placeholder” motions as “routine”). Moreover, it appears Haynes was once on board with the
government’s approach—he conceded to the district court that “the Government clearly acted in
good faith by initial [sic] filing the Motion to protect Mr. Haynes [sic] right to a Rule 35
departure at a later time as it was clear to all parties that his cooperation would not be completed
within the one year time frame for filing a Rule 35 Motion.” R. 40 (Def. Am. Resp. to Gov’t
Notice Not to File Rule 35 Mot. at 1) (Page ID #136) (emphasis added). In any event, we need
not resolve the propriety of “protective” motions to address the issues before the court.

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No. 13-1788
United States v. Haynes


Moore, 225 F.3d at 641).5 This precludes any review for bad faith, rational basis, or the “broader

principles” advocated by Haynes. See id.; United States v. Hawkins, 274 F.3d 420, 428 (6th Cir.

2001) (“[B]ecause the defendant’s plea agreement afforded the government ‘complete discretion’

to determine whether to file a [U.S.S.G. § 5K1.1] motion for downward departure, the panel

‘may review the government’s refusal only for unconstitutional motives.’”) (quoting Moore, 225

F.3d at 641) (emphasis added); Shropshire, 278 F. App’x at 526 (“This court does not review for

bad faith when the decision to file a [Rule 35(b)] motion vests within the sole discretion of the

government.”); United States v. Muhammad, 114 F. App’x 735, 737 (6th Cir. 2004) (“A refusal

to ask for a [U.S.S.G. § 5K1.1] downward departure may only be reviewed for unconstitutional

motives, such as race; review for bad faith or lack of rational basis is not permitted.”). That

standard applies here, and Haynes’s argument to the contrary fails.6 See Valentine v. Francis,

270 F.3d 1032, 1035 (6th Cir. 2001) (“[A] published opinion[] is binding on this panel.”).




       5
        Although Villareal, and other cases cited below, analyze this standard under U.S.S.G.
§ 5K1.1, the analysis is the same under Rule 35(b). See United States v. Grant, 636 F.3d 803,
813, 815 (6th Cir. 2011) (en banc) (recognizing the “longstanding practice of interpreting . . .
[Rule 35(b)] in lockstep with § 3553(e) and § 5K1.1” and citing cases); United States v. Bowers,
615 F.3d 715, 720 (6th Cir. 2010) (“Rule 35(b) motions are the post-sentencing analogues of
government motions for downward departures pursuant to U.S.S.G. § 5K1.1 upon initial
sentencing.”).
       6
       This Court has “elaborated on the strictly construed nature of our plea agreement review
and advocated that we reexamine this issue en banc.” Villareal, 491 F.3d at 609 n.2 (citing
Hawkins, 274 F.3d at 427–34).

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No. 13-1788
United States v. Haynes


                                     IV. CONCLUSION

       Because the government had authority to withdraw its Rule 35(b) motion under the terms

of the plea agreement, we AFFIRM.7




       7
        Haynes has filed a motion to take judicial notice of certain documents from a related
case. But because we do not need to review these documents to resolve the issues before us, the
motion is denied as moot.

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