17‐1814‐cr (L), 17‐1868‐cr (CON)
United States v. Doe


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT


                                       August Term 2018

         (Argued: March 21, 2019                    Decided: September 9, 2019)

                        Docket No. 17‐1814‐cr(L), 17‐1868‐cr (CON)


                                   UNITED STATES OF AMERICA,

                                                   Appellee,

                                              v.

                                          JOHN DOE,

                                                   Defendant‐Appellant.*



                  ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE EASTERN DISTRICT OF NEW YORK




      Before: POOLER and CHIN, Circuit Judges, and VITALIANO, District Judge.†




*      The Clerk of the Court is respectfully directed to amend the caption to conform
to the above.
†      Judge Eric N. Vitaliano, of the United States District Court for the Eastern District
of New York, sitting by designation.
            Appeal from a memorandum and order of the United States District

Court for the Eastern District of New York (Johnson, J.), denying the

governmentʹs motion pursuant to Rule 35(b)(2)(B) of the Federal Rules of

Criminal Procedure to re‐sentence defendant‐appellant based on his substantial

assistance in the prosecution of others. Defendant‐appellant contends that the

district court relied on erroneous findings of fact and failed to conduct a proper

Rule 35 inquiry, in violation of his right to due process. The government argues

that the Court lacks jurisdiction to hear the appeal. We reject the governmentʹs

jurisdictional argument in this opinion, and, in a separate summary order filed

under seal today, we affirm the judgment on the merits.

            AFFIRMED.



                         KAYLA CREWS BENSING, Assistant United States
                              Attorney (Kevin Trowel and Michael H. Warren,
                              Assistant United States Attorneys, on the brief), for
                              Richard P. Donoghue, United States Attorney for
                              the Eastern District of New York, Brooklyn, New
                              York, for Appellee.

                         DONNA R. NEWMAN, Law Office of Donna R. Newman,
                             New York, New York, for Defendant‐Appellant.
                                             ___________
CHIN, Circuit Judge:

             In this case, defendant‐appellant John Doe pleaded guilty to

conspiracy to commit wire fraud. He began to cooperate with the government

and continued to cooperate after he was sentenced. The government thereafter

moved pursuant to Rule 35(b)(2)(B) of the Federal Rules of Criminal Procedure

for a reduction of Doeʹs sentence on the grounds that he provided substantial

assistance in the prosecution of others. The district court denied the motion.

             On appeal, Doe argues that the district court violated his due

process rights in failing to conduct a proper Rule 35 inquiry. The government

responds by arguing that this Court lacks jurisdiction over the appeal because a

defendantʹs appeal from a disposition of a Rule 35(b) motion exists, ʺif at all,ʺ

under 18 U.S.C. § 3742(a), and, the government contends, Doeʹs arguments do

not provide a proper basis under that statute for an appeal. In the alternative,

the government argues that, assuming there is appellate jurisdiction, the appeal

fails on the merits.

             We reject the governmentʹs jurisdictional argument, and we affirm

the denial of the Rule 35(b) motion on the merits. Because Doe cooperated with

the government below, the district court proceedings and the briefs and



                                          3
appendices on appeal were sealed.1 Accordingly, we dispose of the appeal by

resolving the jurisdictional question in this opinion using a pseudonym, and we

address the merits in a sealed summary order that we also file today.

                                     BACKGROUND

             In 2013, Doe pled guilty to two counts of conspiracy to commit wire

fraud. He began cooperating with the government before sentencing. In 2014,

he was sentenced principally to 84 monthsʹ imprisonment, a below‐Guidelines

sentence. Despite Doeʹs pre‐sentencing cooperation, the government did not

make a motion pursuant to § 5K1.1 of the United States Sentencing Guidelines

(the ʺGuidelinesʺ) for a reduction of sentence, and the record does not suggest

that his cooperation was a factor in the Guidelines sentence originally imposed.

             Doe continued to assist the government after his sentencing. In

2017, in a sealed letter motion, the government moved for Doe to be re‐sentenced

pursuant to Rule 35(b)(2)(B). The district court denied the motion in a

memorandum and order. The district court recognized that it had the ʺright to

reduce [Doeʹs] sentenceʺ but declined to do so because it was ʺnot impressedʺ

with Doeʹs cooperation. The district court concluded that Doeʹs post‐sentencing

cooperation came only after he had committed additional crimes, and that Doe

1     Therefore, all citations to the record have been omitted.
                                               4
was intent on continuing to commit ʺthe very same illegal conduct without

intermission.ʺ This appeal followed.

                                   DISCUSSION

I.    Applicable Law

      A.     Rule 35

             Rule 35(b)(2)(B) provides:

                   Upon the governmentʹs motion made more than
             one year after sentencing, the court may reduce a
             sentence if the defendantʹs substantial assistance
             involved . . .

                   (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 . . . .

Fed. R. Crim. P. 35(b)(2)(B) (emphasis added).

             ʺ[I]n deciding a Rule 35(b) motion, a district court makes two

inquiries.ʺ United States v. Katsman, 905 F.3d 672, 674 (2d Cir. 2018) (per curiam).

ʺFirst, it must determine whether the defendant in fact provided substantial

assistance.ʺ Id. Second, if it concludes that the defendant did provide substantial

assistance, it must then determine whether to reduce the sentence and, if so, to

what extent. Id.



                                          5
             The use of the word ʺmayʺ in Rule 35 implies discretion, and, as we

recently held, ʺdiscretion can best be exercised by considering the various

sentencing factors.ʺ Id. at 675. Hence, in determining the extent, if any, of a Rule

35(b) reduction, a district court may consider the statutory sentencing factors and

whether ʺ[a] defendantʹs circumstances [have] [change[d] post‐sentencing in

such a way as to have a bearing on the appropriateness of his sentence.ʺ Id.

(citing 18 U.S.C. § 3553(a)).

             We have also noted that ʺdue to similarity of language and function,

§ 5K1.1 should inform our construction of Rule 35(b).ʺ United States v. Gangi, 45

F.3d 28, 31 (2d Cir. 1995). Indeed, ʺ[t]he only practical difference between Rule

35(b) and U.S.S.G. § 5K1.1 is a matter of timing.ʺ Id. at 30; accord United States v.

Scarpa, 861 F.3d 59, 67 (2d Cir. 2017); United States v. Doe, 93 F.3d 67, 68 (2d Cir.

1996) (per curiam). Section 5K1.1 sets forth a number of non‐exclusive factors to

guide a sentencing court in determining the ʺappropriate reduction,ʺ including

the nature, extent, usefulness, and timeliness of the defendantʹs assistance, the

truthfulness, completeness, and reliability of his information, and the impact of

the assistance on the defendant and his family. U.S.S.G. § 5K1.1; see also Gangi, 45




                                           6
F.3d at 31. Accordingly, these considerations apply in the Rule 35 context as

well.

             We have also held that where the government makes a Rule 35

motion, ʺa defendant must have an opportunity to respond to the governmentʹs

characterization of his post‐sentencing cooperation and to persuade the court of

the merits of a reduction in sentence.ʺ Gangi, 45 F.3d at 32. Whether that

opportunity to be heard should take the form of a full hearing or a written

submission is left to the discretion of the district court, but we have recognized

that the ʺfailure to afford an opportunity to be heard would raise grave due

process issues.ʺ Id.

             B.    Appellate Jurisdiction

             ʺFederal courts are courts of limited jurisdiction.ʺ Doe v. United

States, 833 F.3d 192, 196 (2d Cir. 2016) (alterations and internal quotation marks

omitted). A defendant may appeal from a district courtʹs decision on a Rule

35(b) motion pursuant to 18 U.S.C. § 3742(a), which confers limited appellate

jurisdiction over appeals of ʺotherwise final sentences.ʺ Doe, 93 F.3d at 67‐68

(dismissing defendantʹs appeal of extent of district courtʹs sentence reduction




                                         7
pursuant to Rule 35(b) on grounds that defendantʹs appeal did not fall within the

categories set forth in 18 U.S.C. § 3742).

             Under § 3742(a), a defendant may appeal an ʺotherwise final

sentence[]ʺ if the sentence imposed was ʺ(1) in violation of the law; (2) a

misapplication of the Guidelines; (3) an upward departure from the Guidelines;

or (4) a plainly unreasonable penalty for an offense not included in the

Guidelines.ʺ Id. at 68 (internal quotation marks omitted); see also 18 U.S.C.

§ 3742(a). We have held that we do not have appellate jurisdiction under

§ 3742(a) to hear a defendantʹs appeal of the ʺextentʺ of a sentencing reduction on

a Rule 35(b) motion. Id. at 67‐68. On the other hand, in Gangi, we reached the

merits of an appeal challenging a Rule 35(b) sentencing decision, inter alia, on

procedural due process grounds. 45 F.3d at 29‐30, 32.

II.   Application

             On appeal, Doe contends that the district court abused its discretion

in denying the governmentʹs Rule 35 motion because it relied on ʺclearly

erroneous findings of facts lacking in record support.ʺ He also contends that the

district court misapplied the two‐step inquiry required by Rule 35 ‐‐ whether a

defendant is eligible for a reduction and, if so, whether and to what extent a



                                             8
reduction is warranted ‐‐ by conflating the two steps. We conclude that we have

jurisdiction under § 3742(a) to review both contentions.2

      A.     Reliance on erroneous facts

             Doe argues that it is a violation of law ‐‐ and therefore we have

jurisdiction to review the denial of the Rule 35 motion ‐‐ for a district court to re‐

sentence an individual based on erroneous facts. We agree.

             Although sentencing judges are afforded wide discretion in

determining what sentence to impose, ʺthere are distinct limits to this discretion,

and they include a defendantʹs due process right to be sentenced based on

accurate information.ʺ United States v. Juwa, 508 F.3d 694, 700 (2d Cir. 2007); see

also United States v. Tucker, 404 U.S. 443, 447 (1972) (reviewing sentence where it

was ʺfounded at least in part upon misinformation of constitutional magnitudeʺ);

United States v. Brown, 843 F.3d 74, 91 (2d Cir. 2016) (Pooler, J., dissenting)

(ʺDefendants have a constitutional right to be sentenced based on ʹaccurate

informationʹ rather than guesses.ʺ). Indeed, we have held as a general



2      Doe argues that we have jurisdiction under: (1) subsection (a)(1) because the
motion was denied in violation of the law; or (2) subsection (a)(2) because the court
misapplied the factors set forth in § 5K1.1 of the Guidelines. Because we conclude that
we have jurisdiction under § 3742(a)(1), we do not reach Doeʹs argument as to
§ 3742(a)(2).

                                           9
proposition that a district court abuses its discretion when it relies on erroneous

facts. United States v. Brady, 417 F.3d 326, 332‐33 (2d Cir. 2005) (noting that a

district court abuses the discretion accorded to it when its decision rests on ʺa

clearly erroneous factual findingʺ).

              Therefore, we have found that a contention that a judge has relied

on inaccurate, material information is reviewable under § 3742(a)(1) because ʺa

judgeʹs material misapprehension of fact is ground for vacating a sentence,

because it may constitute a denial of due process, especially when the defendant

lacks an opportunity to reply.ʺ United States v. McDavid, 41 F.3d 841, 843‐44 (2d

Cir. 1994) (internal citations omitted); see also United States v. Brown, 479 F.2d

1170, 1172 (2d Cir. 1973) (ʺAbsent the sentencing judgeʹs reliance . . . upon

material inaccuracies, it is not our function to review a sentence falling within

statutory limits.ʺ); cf. United States v. Arevalo, 628 F.3d 93, 99 (2d Cir. 2010)

(requiring reliance and more than a ʺmere existence of inaccurate informationʺ

for a due process violation).3



3       This holding is consistent with the practices of the Seventh and Tenth Circuits.
See, e.g., United States v. Garcia, 919 F.2d 1478, 1480 (10th Cir. 1990) (ʺClearly erroneous
factual findings implicate constitutional due process concerns.ʺ); United States v. Franz,
886 F.2d 973, 980 (7th Cir. 1989) (ʺ[A] defendantʹs constitutional rights can be violated if
he demonstrates grave doubt as to the veracity of the information and that the court
relied on that false information in determining the sentence.ʺ (brackets, alterations, and
                                             10
              While these cases involved appeals from plenary sentencings rather

than Rule 35 re‐sentencings, the principle that a defendant has a right to be

sentenced based on accurate facts rather than material misinformation is just as

important in the Rule 35 context, as a defendantʹs loss of freedom is still at stake.

Discretion does not mean absolute discretion, and, as noted above, the law

provides guidance to district courts on how to exercise their sentencing

discretion in deciding Rule 35 motions.

              To the extent that the government argues that the constitutional

right to due process is not implicated by a Rule 35 motion, we disagree.

According to the government, there can be no due process violation because Rule

35(b) only allows a sentence to be reduced and so there can be no additional

deprivation beyond that which was already imposed. Moreover, the

government argues that no set of facts would mandate a favorable decision in a

Rule 35 proceeding, and therefore post‐conviction proceedings, like Rule 35(b)

proceedings, are not constitutionally compelled. We are not persuaded.


internal quotation marks omitted)); see also United States v. Fontes, 415 F.3d 174, 176 &
n.3 (1st Cir. 2005) (noting that defendant did not challenge the courtʹs underlying
factual determinations and implying that, had he done so, the court would have had
jurisdiction under § 3742(a)). But see United States v. Minutoli, 374 F.3d 236, 240 (3d Cir.
2004) (ʺWhile we have not explicitly stated that we lack jurisdiction to review the
allegation of a factual error in the course of a discretionary refusal to depart, that
conclusion is surely implicit in our cases.ʺ).
                                             11
             First, we have already declined to adopt the view that ʺby the time a

Rule 35(b) motion is filed, a defendant has already received the process that is

due to him in sentencing under general due process principles.ʺ Gangi, 45 F.3d at

32. Indeed, we have recognized that while ʺa prisonerʹs right to due process is

not parallel to a trial right,ʺ a prisoner still has some right to due process that

ʺmust be analyzed in light of the fact that he has already been found guilty at a

fair trial, and has only a limited interest in postconviction relief.ʺ McKithen v.

Brown, 626 F.3d 143, 152 (2d Cir. 2010) (alterations and internal quotation marks

omitted); accord Dist. Attorneyʹs Office for the Third Judicial Dist. v. Osborne, 557

U.S. 52, 68‐69 (2009).

             Second, by requiring a decision based on accurate facts, we are not

mandating any particular decision by the district court in a Rule 35 proceeding.

Rather, we simply hold that when a district court exercises its discretion in

deciding a Rule 35 motion, it must do so based on accurate information.

             Finally, the Supreme Court has recognized that there are

ʺconstitutional interests in accurate finding[s] of fact . . . and in preserving a fair

and open process for decision.ʺ Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980).

Moreover, due process requires fundamental fairness, see Moran v. Burbine, 475



                                           12
U.S. 412, 432 (1986); see also id. at 468 (Stevens, J., dissenting), which ordinarily

requires ʺthat the defendant be given an opportunity to rebut the factual

assumptions relied on by the judge,ʺ United States v. Gonzalez, 661 F.2d 488, 495

(5th Cir. 1981). Therefore, due process still dictates that a ruling on a Rule 35

motion be based on accurate information.

             Here, Doe contends that the district court relied on erroneous facts

in denying the Rule 35 motion. It is clear that these facts are material and that

the district court relied on them, as the court referenced the facts in explaining its

denial of the Rule 35 motion. See McDavid, 41 F.3d at 844 (ʺA sentence based in

part on material misinformation may not stand.ʺ). Whether the findings were

erroneous, as Doe argues, is a separate question, but we conclude that we have

jurisdiction to review his contention that the denial of the governmentʹs Rule 35

motion was based on erroneous material facts in violation of law.

      B.     Misapplication of Rule 35 two‐step inquiry

             Doe also argues that the district court conflated the two‐step process

for deciding a Rule 35(b) motion. Clearly, a contention that a district judge failed

to properly conduct a Rule 35 inquiry is a contention that the judge re‐sentenced

the defendant in violation of the law. See, e.g., Katsman, 905 F.3d at 674‐75



                                           13
(reviewing defendantʹs argument that district court ʺimproperly conflated the

two [Rule 35] stepsʺ); United States v. Davis, 679 F.3d 190, 194 (4th Cir. 2012)

(finding jurisdiction to review district courtʹs ʺsentencing methodologyʺ); United

States v. Grant, 636 F.3d 803, 809 (6th Cir. 2011) (en banc) (finding jurisdiction to

review district courtʹs methodology where the court ʺmisapprehend[ed] the

factors it was allowed to consider in deciding the Rule 35(b) motionʺ). We,

therefore, have jurisdiction to review the denial of the governmentʹs Rule 35

motion on this ground.

                                   CONCLUSION

             For the reasons set forth above, we hold that we have jurisdiction to

review the denial of the Rule 35(b) motion. For the reasons set forth in the

accompanying sealed summary order, the judgment of the district court is

AFFIRMED.




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