Rule 35(b) Sentence Reduction Not Solely Based on Cooperation

By Robyn Hagan Cain on September 16, 2011 | Last updated on March 21, 2019

Mark Steven Rublee pleaded guilty to conspiracy to distribute methamphetamine. The district court sentenced him to 132 months in prison, above the minimum sentence of 120 months. One year later, the court granted the Government’s Rule 35(b) motion to reduce the sentence below the mandatory minimum to reflect Rublee’s substantial assistance in providing information that led to the conviction of two other persons.

Rublee, unsatisfied with the reduction, appealed the reduced 98-month sentence, arguing the district court improperly considered factors unrelated to the value of his assistance in declining to grant a further reduction. The factor in question? Whether Rublee made the “bone-headed mistake” of speaking to another witness about cooperation in the investigation.

While Rublee's sentence reduction was pending, the second witness, inmate Timothy Folden, reported that Rublee had urged him to provide false information so that Rublee could earn a greater reduction. The Government grew perturbed and moved to withdraw its Rule 35(b) motion for sentence reduction. After learning that Rublee had imprudently discussed cooperation with Folden, but had not urged Folden to manufacture information or testimony, the Government withdrew its motion to withdraw.

While the sentence reduction recommendation was back on the table, all was not forgiven. Instead of urging a reduction from 132 to 84 months, the government recommended a sentence of "not less than 120 months." Rublee, however, claimed that his conversation with the second witness did not matter because a reduction in sentence may only be based on assistance-related considerations.

The Eighth Circuit Court of Appeals disagreed with Rublee, finding that the Government may "advise the sentencing court if there are unrelated factors ... that in the government's view should preclude or severely restrict any downward departure relief," in which case the district court "may of course weigh such alleged conduct in exercising its downward departure discretion." A Rule 35(b) motion need not be based only on factors related to the assistance provided.

What does this mean for your clients? Sentence reductions can be modified or withdrawn if a defendant's actions compromise the value of his cooperation.

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