Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^** 

Appellant Jose Arturo Leon-Figueroa filed a motion in the district court to reduce his sentence pursuant to Fed. R. Crim. P. 35(b). The district court refused to reduce the custodial sentence, but made Leon-Figueroa eligible for early parole pursuant to 18 U.S.C. § 4205(b) (2). We review the ruling for abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963 (1986).

This is a pre-Guidelines sentence. Our rule for such cases was that a district court does not abuse its discretion when denying a Rule 35(b) motion if the sentence imposed was: (1) within statutory bounds, and (2) based upon a consideration of "all of the relevant information concerning [the defendant's] personal history, change of attitude and prospects for rehabilitation." United States v. DeWald, 669 F.2d 590, 592 (9th Cir. 1982). Here the district court had imposed a sentence five years shorter than the statutory maximum. It had considered Leon-Figueroa's prior convictions, his military service, his employment record, his family circumstances, his good conduct in prison, a job offer outside prison, and the pre-sentencing report.

A defendant's cooperation with the government and the government's failure to honor a cooperation agreement may also be raised in a Rule 35(b) motion. Here, Leon-Figueroa's attorney informed the judge at the Rule 35(b) hearing that an agreement regarding cooperation existed and that his client had cooperated with the government in exchange for use immunity and a sentencing recommendation commensurate with the value of the information released to the authorities. The government admitted at the hearing that it had not planned to raise the issue of cooperation, but explained that its reason was that Leon-Figueroa's information was worthless. Assuming the government's failure to advise the court of the existence of the agreement and the facts regarding Leon-Figueroa's subsequent conduct to be a violation of the agreement, the breach was harmless because the agreement was executed in fact. The court was fully advised of the extent of Leon-Figueroa's cooperation at the Rule 35 hearing. Unfortunately for Leon-Figueroa, in the government's view, by the time he cooperated his information was of no value.

Leon-Figueroa also claims that the judge failed to consider evidence of duress and coercion as a mitigating factor at the Rule 35(b) hearing. We may assume for purposes of our decision that such evidence bears on Leon-Figueroa's "personal history," DeWald, 669 F.2d at 592, and that the district court was therefore required to consider this evidence. However, the transcript of the hearing clearly indicates that this evidence was brought to the attention of the judge. Given the length of the hearing and the paucity of substantial issues raised, there is no reason to conclude that the judge inadvertently overlooked this claim. Nor is there any evidence that he deliberately ignored it.

Leon-Figueroa also appeals the denial of a motion in limine to exclude statements of unknown co-conspirators, and the denial of a motion made orally at trial for a continuance to obtain new counsel and for a mistrial. These issues relate to alleged errors in reaching the determination as to Leon-Figueroa's guilt. They are not appropriate for consideration at a Rule 35(b) motion because such a motion only pertains to sentencing.

We find that the decision to limit the relief granted Leon-Figueroa to early eligibility for parole was not an abuse of discretion. The district court's ruling is

AFFIRMED.