United States of America, Plaintiff-appellee, v. Alain Orozco, A.k.a. Allan Jene Velasquez, Defendant-appellant, 160 F.3d 1309 (11th Cir. 1998)

This case presents the issue of whether a district judge has jurisdiction under Federal Rule of Criminal Procedure 35(b) to grant a motion for reduction of sentence when information provided by a defendant is useful in convicting a coconspirator, but the assistance occurs more than one year after imposition of sentence and the information was known by the defendant prior to sentencing. The district judge determined that he was without jurisdiction to rule on this motion outside the prescribed time period. We affirm.

In December, 1989, defendant-appellant, Alain Orozco, was arrested for transporting cocaine from South Florida to Atlanta, Georgia. On July 9, 1990, he pled guilty in the Northern District of Georgia to conspiring to manufacture, distribute, and possess cocaine base and cocaine hydrochloride in violation of 21 U.S.C. § 846 and making a false statement to the Federal Bureau of Investigation to conceal his identity in violation of 18 U.S.C. § 1001. In an effort to have the government file a U.S.S.G. § 5K1.1 departure motion at sentencing, Orozco informed the government of his knowledge of the cocaine distribution operation in which he was involved. In addition to other information regarding the cocaine distribution conspiracy, Orozco identified Armando Rodriguez, a major cocaine distributor for whom he provided cocaine transportation services, and related details concerning their transactions. The government, however, concluded that Orozco was not entirely truthful and had minimized some information about the cocaine distribution operation. Additionally, the information that he supplied could not be used by the government against Orozco's four codefendants charged in the indictment or others that he named because of venue problems or lack of corroborating evidence.

Concluding that the information provided by Orozco prior to his sentencing was insufficient to qualify as substantial assistance, the government did not move for a reduction in his sentence under section 5K1.1. On November 16, 1990, Orozco was sentenced to 151 months of imprisonment for his role in the cocaine distribution conspiracy. This court affirmed his sentence. See United States v. Orozco, 964 F.2d 1146 (11th Cir. 1992) (mem.).

Within a year of Orozco's sentencing, the government filed a preliminary motion under Rule 35(b) that advised the district judge that Orozco's cooperation had not been completed. The government requested the district judge not to rule on the motion until it was supplemented or withdrawn. When Orozco furnished no additional information, the government withdrew its preliminary Rule 35(b) motion.¹ 

In 1996, the United States Attorney for the Northern District of Florida learned that Orozco had information that could assist the government in its prosecution of Rodriguez, who had been indicted for distributing cocaine after being a fugitive for five years before his arrest.²  At Rodriguez's trial in May, 1996, over four years after Orozco's sentence became final, Orozco testified that Rodriguez supplied him with five kilograms of cocaine, which he brought to Atlanta. Additionally, he corroborated the testimonies of earlier government witnesses. Orozco's testimony was the same evidence that he had provided in 1990 to Federal Bureau of Investigation and Drug Enforcement Administration agents. Because of his assistance, the Florida Assistant United States Attorney recommended to the Georgia Assistant United States Attorney ("AUSA") that a Rule 35(b) motion be filed for Orozco. In the government's motion for reduction of sentence, filed on December 17, 1996, in the Northern District of Georgia, the AUSA explained that the information upon which the motion was based was known to Orozco at his sentencing but that the government could not use the information until more than one year after Orozco had been sentenced.³  In the motion, the AUSA advised that "Orozco appeared and testified with the understanding that no guarantee was made as to any sentence reduction" and that, "because this motion is made more than one year after imposition of sentence," the district judge must determine whether he "has jurisdiction to consider this motion and grant any reduction of the previously imposed sentence." R1-152-2.

The same district judge in the Northern District of Georgia who had sentenced Orozco conducted a hearing on the government's Rule 35(b) motion on January 30, 1997. The AUSA informed the district judge that, when Orozco was prosecuted and debriefed in 1990, he had related information concerning Rodriguez. Because Rodriguez could not be located, Orozco's information could not be used to prosecute him at that time. Thus, the government did not file a motion to reduce Orozco's sentence for substantial assistance.

In response to the district judge's inquiry about the terms of Orozco's plea agreement, the AUSA advised that the agreement did not require that the government file a Rule 35(b) motion but stated that the government would inform the district judge and file a section 5K1.1 motion if Orozco provided substantial assistance prior to his sentencing. Absent his being able to order the government to file a Rule 35(b) motion pursuant to the terms of the plea agreement, the district judge concluded that he was without jurisdiction under the rule to consider a Rule 35(b) motion for substantial assistance at that time.⁴  Orozco appeals this ruling.

In this appeal, we must decide whether the district judge correctly determined that he did not have jurisdiction to consider a Rule 35(b) motion for reduction of sentence, when Orozco provided information known to him prior to his sentencing but that information was not useful in prosecuting Rodriguez until over a year after imposition of Orozco's sentence. We review a district judge's statutory interpretation and application de novo. See United States v. Grigsby, 111 F.3d 806, 816 (11th Cir. 1997). When a statute has been duly enacted and the language is plain, " 'the sole function of the courts is to enforce it according to its terms.' " Central Trust Co. v. Official Creditors' Comm. of Geiger Enters., Inc., 454 U.S. 354, 359-60, 102 S. Ct. 695, 698, 70 L. Ed. 2d 542 (1982) (per curiam) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442 (1917)). "Review of the legislative history is not necessary unless a statute is inescapably ambiguous." Solis-Ramirez v. United States Dept. of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam); see United States v. Rush, 874 F.2d 1513, 1514 (11th Cir. 1989) (recognizing that legislative history is not used to create ambiguity where statutory language is clear).

Federal Rule of Criminal Procedure 35(b) provides:

REDUCTION OF SENTENCE FOR CHANGED CIRCUMSTANCES. The court, on motion of the Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. The court may consider a government motion to reduce a sentence made one year or more after imposition of the sentence where the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after imposition of sentence. The court's authority to reduce a sentence under this subsection includes the authority to reduce such sentence to a level below that established by statute as a minimum sentence.

18 U.S.C. app. Fed. R. Crim. P. 35(b) (1994) (emphasis added). Our court previously has held that the time period stated within the rule for the government to file a Rule 35(b) motion is jurisdictional. See In re United States, 898 F.2d 1485, 1486 (11th Cir. 1990) (per curiam) (citing United States v. Addonizio, 442 U.S. 178, 189, 99 S. Ct. 2235, 2242-43, 60 L. Ed. 2d 805 (1979)); United States v. Rice, 671 F.2d 455, 459 (11th Cir. 1982).⁵  We also have determined that "sentence is imposed for the purposes of Rule 35(b) when the sentencing order constitutes a final, appealable order," which signifies the commencement of the running of the specified time period. In re United States, 898 F.2d at 1487. Additionally, we have clarified the "temporal framework" involved with the government's acknowledging a convicted defendant's substantial assistance prior to sentencing in a section 5K1.1 motion at sentencing and the government's rewarding a convicted defendant's substantial assistance to the government after sentencing with a Rule 35(b) motion.⁶  See United States v. Alvarez, 115 F.3d 839, 842 (11th Cir. 1997); United States v. Howard, 902 F.2d 894, 896 (11th Cir. 1990).

Prior to the current version of Rule 35(b), the time period within which a Rule 35(b) motion requesting a sentence reduction for post-sentencing assistance could be filed was limited to the specified time period stated in Rule 35(b) from the date on which the convicted defendant's sentence became final.⁷  The current version, resulting from the 1991 amendment to Rule 35, restricts the time period within which the government may file a Rule 35(b) motion to "one year after the imposition of the sentence" but extends the time period within which the government may file a Rule 35(b) motion to "one year or more after imposition of the sentence" through the qualification or exception when the convicted defendant provides substantial assistance, consisting of "information or evidence" unknown "by the defendant until one year or more after imposition of sentence." 18 U.S.C. app. Fed. R. Crim. P. 35(b) (1994). Our sole inquiry in this appeal is to decide whether the district court had jurisdiction to rule on the government's Rule 35(b) motion to reduce Orozco's sentence following his assistance in the prosecution of Rodriguez in 1996.

Because Orozco's assistance in the prosecution of Rodriguez and the consequent filing of the Rule 35(b) motion in 1996 were outside the one-year limitation after the imposition of his sentence, he argues the applicability of the exception in Rule 35(b). He represents that the rule allows a motion for reduction of sentence to be filed after the one-year period when a convicted defendant's assistance does not become useful to the government until a year or more after sentence imposition. Thus, he argues that the information regarding Rodriguez that he provided to the government in 1990 should make him eligible for a reduction in his sentence under Rule 35(b) as of the time in 1996 that it became useful to the government in convicting Rodriguez.

Addressing the current version of Rule 35(b), as amended in 1991, the Fourth and Seventh Circuits have interpreted the rule literally. See United States v. Carey, 120 F.3d 509 (4th Cir. 1997), cert. denied, --- U.S. ----, 118 S. Ct. 1062, 140 L. Ed. 2d 122 (1998); United States v. McDowell, 117 F.3d 974 (7th Cir. 1997). In Carey, the Fourth Circuit recognized the policy considerations involved in the one-year limitation on the government's filing a Rule 35(b) motion: "ending the sentence negotiation process," "finalizing the length of a defendant's sentence," providing convicted defendants with incentive promptly to disclose all of their knowledge concerning unlawful conduct "regardless of whether they appreciate its value to the government," and preventing sentence manipulation whereby convicted defendants could return to the government years after sentencing with outdated or fabricated information regarding criminal activity. Carey, 120 F.3d at 511, 512. Applicable to this case, that court determined that "if substantial assistance forming the basis of a downward departure motion involves information or evidence that the defendant knew within the one-year period after his sentencing, he is not entitled to have the one-year limitation relaxed." Id. at 511.

The Carey court also confronted the same argument presented by Orozco that the Advisory Committee Note to Rule 35(b) relaxes the one-year limitation period to encompass the situation where a defendant's assistance was not useful until the one-year period from sentence imposition had expired.⁸  See id. at 512. In rejecting this argument, the Fourth Circuit explained:

[T]he Advisory Committee Note is not the law; [Rule 35(b) ] is.... [I]f the Advisory Committee Note can be read in two ways, we must read it, if we consult it at all, in a manner that makes it consistent with the language of the rule itself, and if the rule and the note conflict, the rule must govern. Because the rule on the issue before us is unambiguous, we need not even consult the note to determine the rule's meaning.

The rule unambiguously provides that the one-year limitation may be relaxed only where the information provided by the defendant was "not known by the defendant until one year or more after the imposition of sentence." This language does not allow for an interpretation that the one-year period may be relaxed when the information was known during the one-year period but that the cooperation could not have been provided until more than one year, for whatever reason.

Id. at 512-13 (citation omitted).⁹  See Fed. R. Crim. P. 45(b) (" [T]he court may not extend the time for taking any action under Rule [ ] ... 35, except to the extent and under the conditions stated in [it].").

In McDowell, the Seventh Circuit recognized that the jurisdictional, one-year provision for a Rule 35(b) motion is distinct from other jurisdictional deadlines because it is "qualified by the exception for 'information or evidence not known by the defendant until one year or more after imposition of sentence.' " McDowell, 117 F.3d at 979 (quoting Fed. R. Crim. P. 35(b)). Since the government's filing Rule 35(b) motions within a year of sentencing is "a constraint upon the court's authority to grant such motions," cases in which this exception is invoked require a district judge "to conduct an inquiry, beyond a perusal of the docket sheet" to determine if he has "authority to grant a Rule 35(b) motion." Id. For the exception to the jurisdictional, one-year rule to become effective for the government's filing a Rule 35(b) motion, the Seventh Circuit concluded that the district judge must be convinced that the convicted defendant acquired information or evidence not known until a year or more after sentencing. That court reasoned that " [b]ecause only the government now may file Rule 35(b) motions, an interpretation of the Rule that permitted the government to 'waive' the time limit would render the deadline ineffectual." McDowell, 117 F.3d at 979.

While Orozco is ineligible jurisdictionally from application of the one-year limitation period from sentence imposition in Rule 35(b), we conclude that he also is ineligible factually under the plain terms of the exception to the rule. It is undisputed that Orozco did not provide information or evidence in the prosecution of Rodriguez that was unknown to him during the one-year time limitation following the imposition of his sentence. He reiterated at Rodriguez's trial in 1996 the same information that he had given the government in 1990 before his sentencing. The current version of Rule 35(b) concerning assistance provided by a convicted defendant more than a year after imposition of his sentence focuses on the character of the information provided by the defendant, new disclosures, and not the usefulness of that information to the government. See United States v. Mitchell, 964 F.2d 454, 461 (5th Cir. 1992) (per curiam) (recognizing that, in the usual case, "no information or evidence comes to light more than one year after imposition of sentence").

With the hope of reducing their sentences, convicted defendants provide a variety of information to the government.¹⁰  Determining whether a motion for reduction of sentence will be filed is reserved to the government, which must ascertain what information the defendant has as well as the truthfulness and usefulness of this information before deciding whether it is appropriate to file a section 5K1.1 motion at sentencing or a Rule 35(b) motion for a convicted defendant thereafter. See Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992) (acknowledging "that in both [18 U.S.C.] § 3553(e) and § 5K1.1 the condition limiting the court's authority gives the Government a power, not a duty, to file a motion when a defendant has substantially assisted"); United States v. Forney, 9 F.3d 1492, 1501 (11th Cir. 1993) (noting that "courts are precluded from intruding into prosecutorial discretion" regarding substantial assistance motions). "The substantial assistance regime is not a spoils system designed simply to reward a cooperative defendant; it is designed to benefit the government in its prosecution efforts." United States v. White, 71 F.3d 920, 924 (D.C. Cir. 1995). Provided that a Rule 35(b) motion is filed within the jurisdictional time period, within a year of sentence imposition for information known to a convicted defendant during that time and more than a year after sentence imposition for new information unknown to the convicted defendant within a year of sentence imposition, the district judge has discretion to rule on the motion based upon the government's recommendation. See United States v. Griffin, 17 F.3d 269, 270 (8th Cir. 1994) ("The decision to grant or deny a Rule 35(b) motion is entirely within the discretion of the district court.").

There is no evidence of bad faith on the part of the government in this case.¹¹  That is, the government did not acquire Orozco's information concerning Rodriguez and deliberately refrain from using that information until the one-year time limitation from imposition of his sentence had passed so that the motion would be barred jurisdictionally. Instead, after receiving Orozco's information regarding Rodriguez in 1990, the AUSA in the Northern District of Georgia determined that this information in conjunction with other information that Orozco provided prior to his sentencing was not useful. Therefore, the government did not file a section 5K1.1 motion and subsequently withdrew its preliminary Rule 35(b) motion when Orozco supplied no additional information within a year after imposition of his sentence. Thereafter, the prosecution of Rodriguez, who had been a fugitive for five years, commenced in the Northern District of Florida. Orozco was contacted by the government, and he testified at Rodriguez's trial. His testimony was the same information that he had imparted in the Northern District of Georgia in 1990, nothing more.¹² 

Since Orozco merely repeated the same information known to him when he talked with the government before his sentencing, he is not eligible for a Rule 35(b) motion under the exception for information that is not known by the convicted defendant until more than a one-year period after sentence imposition. Congress has enacted several revisions of Rule 35(b) and, thus, has shown attentiveness to changing the specific terms of this rule. We are not at liberty to add terms or posit an interpretation that differs from the explicit language of Rule 35(b), particularly when we can decide this case within the plain terms of the rule.¹³  See Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 572, 103 S. Ct. 1356, 1364, 75 L. Ed. 2d 281 (1983) (recognizing that federal courts are not authorized "to add specific language that Congress did not include in a carefully considered statute"); Carey, 120 F.3d at 512 ("Whether we agree with all of the policy considerations or whether [Rule 35(b) ] effectively addresses them, we are bound to apply the rule in the manner in which it is written.").

In this appeal, Orozco contends that the district judge should have granted the government's Rule 35(b) motion and reduced his sentence based on his testimony in Rodriguez's trial over four years after imposition of Orozco's sentence. Because Orozco repeated information to prosecutors in the Northern District of Florida that he previously had disclosed to prosecutors in the Northern District of Georgia before his sentencing and did not relate information acquired a year or more after his sentence imposition, the district judge concluded that he was without jurisdiction to consider the Rule 35(b) motion. For the reasons explained herein, we conclude that the district judge did not have jurisdiction to consider the Rule 35(b) motion. Accordingly, we AFFIRM the ruling of the district judge.

HILL, Senior Circuit Judge, concurring:

The facts of this case illustrate the near impossibility of codifying that which ought to be left to judicial discretion. The Executive, charged with seeing to the faithful execution of the law, has concluded that Orozco ought to have the benefit of his cooperation. He had fully, and promptly, cooperated, but the government only belatedly appreciated the value of his cooperation. The Executive's opponent, Orozco, obviously feels that he should have this benefit. The district judge that heard the original case as well as this petition would grant the relief. As I take it (footnote 13), we, also, would grant it.

But the draftsman of this rule, trying to anticipate future situations, succeeded in anticipating all except the one that obtains.¹  So, Orozco, entitled to release under the views of all interested parties, remains in penal servitude and all that we can do is suggest that the Congress, in its own good time, attempt by further codification to see that it does not happen to someone else. We ought to do better than this.

KRAVITCH, Senior Circuit Judge, concurring specially:

I agree with the majority that Rule 35(b) is drafted so narrowly that it must be read to preclude jurisdiction in this case. I write separately, however, to emphasize that this result contradicts Congress's purpose in providing for discretionary sentence reductions if the defendant immediately provides the government with information that assists the government substantially in prosecuting other criminals. Rule 35, as written, discourages minor participants in large criminal operations from divulging key information about their cohorts, knowing that the government may choose or may be forced to wait to use the information until the time limit for any possible sentence reduction has passed.

As other courts that have considered Rule 35(b) have noted, the purpose of the rule is to encourage defendants immediately to provide full disclosure about criminal operations of which they have knowledge. See United States v. Morales, 52 F.3d 7, 8 (1st Cir. 1995) ("Manifestly, the purpose for denying value to retained knowledge is to induce immediate full disclosure."); United States v. Carey, 120 F.3d 509, 512 (4th Cir. 1997), cert. denied, --- U.S. ----, 118 S. Ct. 1062, 140 L. Ed. 2d 122 (1998) ("The one-year limitation also provides an incentive to defendants to come forward promptly with all that they know about illegal conduct, regardless of whether they appreciate its value to the government."). The Advisory Committee Notes to the 1991 amendment to Rule 35(b) ("the Notes") also emphasize that timely cooperation by the defendant, rather than timely use of the information by the government, is the focus of the new rule.¹  That the language of the rule itself fails to carry out this obvious and important policy manifests an urgent need for Congress to reconsider Rule 35.

The predicament in which the defendant here finds himself powerfully illustrates the gap that Congress has created in Rule 35(b). The defendant was arrested on drug charges in 1989 at the age of nineteen; he subsequently entered a guilty plea and was sentenced to 151 months in prison. Well within the one-year time period prescribed by Congress,²  the defendant provided extensive information about the criminal operation in which he was involved, including information about Armando Rodriguez, a major cocaine distributor who was a fugitive at the time. The government initially filed a Rule 35(b) motion with respect to the defendant but requested that the district court delay its ruling on the motion. Ultimately, the government withdrew that motion.³  It is undisputed that in 1996, when Rodriguez finally had been apprehended and indicted and was being tried, the defendant voluntarily served as a government witness and testified to the same information he had provided the government several years before. In the government's judgment, this testimony assisted it substantially in the prosecution of Rodriguez, as evidenced by the government's decision to bring the motion to reduce the defendant's sentence that is at issue in this case. This court is bound by Rule 35(b), however, and thus must reject the government's attempt to carry out the purpose of the rule.

It is unfortunate that the language of this rule precludes the implementation of the very policy it was written to support. It is particularly unfortunate for the defendant here, whose case, as the district court noted, "cries out for relief."