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June 9, 2009

Sixth Circuit ruling on sentencing discretion under Rule 35(b)

The Sixth Circuit has a split panel ruling of note today in US v. Grant, No. 07-3831 (6th Cir. June 9, 2009) (available here), concerning the scope of sentencing discretion when prosecutors seek to credit a defendant's cooperation effort via Rule 35(b).  Here is how the majority opinion starts:

This sentencing appeal raises the question of what factors a district court may consider when deciding a motion to reduce a sentence pursuant to Federal Rule of Criminal Procedure 35(b), which allows the sentencing judge to reduce a sentence for substantial assistance to the government by the defendant.  Defendant Kevin Grant pleaded guilty to several crimes related to heroin trafficking, and was sentenced to 25 years’ imprisonment, the statutory mandatory minimum.  A statutory mandatory minimum sentence does not permit a sentencing judge to fully consider all of the factors normally required for a just sentence under 18 U.S.C. § 3553(a).  Thus Grant has never received a sentence that considers all of the factors required for a just sentence under § 3553(a), including a sentence “not greater than necessary” under § 3553(a)(2)(D) (rehabilitation).  Subsequently, he provided substantial assistance to the government in several other cases.  In response, the prosecution filed a motion to reduce Grant’s sentence pursuant to Rule 35(b), and the District Court lowered his sentence from 25 years to 16 years.  In so doing, the court concluded that the only factor it could consider was the degree of Grant’s substantial assistance.  We hold that a district court is permitted to consider other factors normally required for a just sentence under § 3553(a), and therefore reverse and remand for further proceedings. Once the grip of the mandatory minimum sentence is broken, the sentencing judge may consider § 3553(a), including subsection (2)(D) on rehabilitation.

June 9, 2009 at 10:43 AM | Permalink


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This opinion potentially serves as a strong statement that the Supreme Court meant what it said about discretion. In short, district judges are supposed to have discretion at all sentencings. The next challenge: how to accord mandatory minimum limitations with this basic sentencing concept. It strikes me that finding some way to harmonize, legally speaking, the two concepts is impossible, especially if the Supreme Court itself has sided with the first principle.

Posted by: Dennis Terez | Jun 9, 2009 6:23:01 PM

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