Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM^** 

Goldman was sentenced to 15 years imprisonment after he pled guilty to three counts: knowingly and intentionally importing in the United States marijuana in excess of 45,000 pounds, 21 U.S.C. § 952(a); knowingly and intentionally possessing marijuana in excess of 45,000 pounds with the intent to distribute, 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B); and being part of an enterprise that had imported marijuana into various locations throughout the United States, 18 U.S.C. § 1962(c). Goldman was sentenced to 15 years on each count to be served concurrently.¹ 

Goldman pled guilty under the terms of a plea agreement that disposed of other outstanding charges against him. Also as part of the plea agreement, Goldman cooperated in the investigation and prosecution of his former associates.

After his sentence, Goldman filed a motion to reduce his sentence under Rule 35(b) of the Federal Rules of Criminal Procedure. Goldman made two arguments for the reduction of his sentence. First, he cooperated with the government and second, he is less culpable than some of his co-defendants who received lesser sentences. Moreover, Goldman argues, Assistant U.S. Attorney Ken Bauman asked the judge to reduce Goldman's sentence. In response to Goldman's motion, the district court reduced Goldman's sentence from 15 years to 12 years.

On appeal, Goldman contends that the district court did not reduce his sentence to the degree warranted. A Rule 35 motion is a plea for leniency addressed to the discretion of the court. United States v. Colvin, 644 F.2d 703, 705 (9th Cir. 1981). It "gives the judge an opportunity to reconsider the sentence in the light of any further information" presented to him. Id. A sentencing court's denial of a Rule 35(b) motion is reviewed for abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963 (1986). In assessing whether the district court abused its discretion, this court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Ruffen, 780 F.2d at 1495 (citation omitted).

A "disparity in the sentences of co-defendants does not indicate that the sentencing judge has abused his discretion." United States v. Garrett, 680 F.2d 650, 652 (9th Cir. 1982). And sentences within statutory limits are also reviewed for abuse of discretion. United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir.), cert. denied, 464 U.S. 854 (1983). Therefore, the length of a reduction under Rule 35(b) is also be reviewed for abuse of discretion.

In this case, the district court, in its order reducing Goldman's sentence, cited Goldman's continuing cooperation with the government and Goldman's contention that his sentence was unduly disparate. Thus, the court explicitly considered the relevant factors. There is nothing before this court which leads us believe that the district court abused its discretion. Therefore, the sentencing order is AFFIRMED.