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Date: 01-22-2022
Case Style:
United States of America v. M. M
Case Number: 20-2788
Judge: Raymond Corley Fisher
Court: center>
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
On appeal from The USDC for the Middle District of Pennsylvania
Plaintiff's Attorney: Michelle L. Olshefski
Bruce D. Brandler
Acting United States Attorney
Office of United States Attorney
Defendant's Attorney:
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Description:
Philadelphia, PA - Criminal defense lawyer represented
defendant with one count of unlawful distribution of fentanyl resulting in death charge.
I.
A. Factual History
In 2017, a man was found dead on the bathroom floor
of his grandparents’ house. Next to his body were his cell
phone and twenty-two small wax bags containing fentanyllaced heroin, stamped “WI FIGHT?” J.A. 66. An autopsy
report later showed that the victim overdosed on fentanyl and
heroin.
After further investigation, police officers determined
that M.M. was the victim’s drug dealer. A search of the
victim’s phone revealed an exchange of text messages between
the victim and M.M. from the day before the overdose about a
delivery of “one to two bundles” or “ten to twenty bags of
heroin” to the victim from M.M. Id. Additionally, the victim
told his grandfather, who confronted him about his drug abuse
a few days prior to the overdose, that he was getting the drugs
from M.M. Lastly, in 2017, police officers arrested M.M. and
found in his possession fifteen drug bags that were identical to
the ones found next to the victim’s dead body, each stamped
with “WI FIGHT?” Id
B. Procedural History
A grand jury indicted M.M. on one count of intent to
distribute a controlled substance, 21 U.S.C. § 841(a)(1), and
one count of distribution of a controlled substance resulting in
death, id. § 841(b)(1)(C). He pleaded not guilty.
3
A few months later, M.M. agreed to cooperate and
entered into a plea agreement with the Government. In return,
the Government, pursuant to 18 U.S.C. § 3553(e), agreed to
recommend a departure below the applicable mandatory
minimum sentence of 240 months if M.M. provided
“substantial assistance” in the Government’s investigation of
others. M.M. then pleaded guilty to distribution of a controlled
substance resulting in death.
Based on its agreement with M.M., the Government
moved for a downward departure of 24 months from the
mandatory minimum, asking for a 216-month term. At a closed
hearing prior to sentencing, the District Court granted the
downward departure motion after evaluating factors related to
M.M.’s cooperation with the Government. The District Court
did not specify the extent of the departure.
Later the same day, at an open sentencing hearing,
M.M. argued for a term below the adjusted departure proposed
by the Government. He invoked § 3553(a) factors, including
his addiction and psychological issues related to his
upbringing. He also suggested the Government’s
recommended sentence was greater than necessary. The
District Court noted its obligation to impose an individualized
sentence, and it discussed § 3553(a) factors such as M.M.’s
drug and alcohol dependence, his mental and emotional
condition, and the quantity of drugs involved in the distribution
resulting in the victim’s death. It then stated it would “vary
below the guideline range due to a holistic consideration” of
these factors, but it did not mention M.M.’s cooperation or the
mandatory minimum. J.A. 67. The District Court then
sentenced M.M. to a term of 120 months.
Eleven days after the sentencing, the Government filed
a motion to correct the sentence pursuant to Rule 35(a), arguing
4
that § 3553(e) does not allow the District Court to reduce a
sentence below a statutory mandatory minimum based on
considerations unrelated to the defendant’s substantial
assistance to law enforcement authorities. The District Court
agreed that clear error had occurred and that it improperly
considered the § 3553(a) factors by reducing the sentence
further than M.M.’s substantial assistance warranted. It
clarified that M.M.’s substantial assistance entitled him to a
departure to 180 months’ imprisonment, not 120. The District
Court stated that reducing M.M.’s sentence any further would
violate our holding in United States v. Winebarger, 664 F.3d
388 (3d Cir. 2011).
M.M. timely appealed.
1
II.
1 The District Court had jurisdiction over M.M.’s
offenses against the laws of the United States. 18 U.S.C. §
3231. This Court has jurisdiction over the District Court’s
final judgment. 28 U.S.C. § 1291; 18 U.S.C. § 3742.
5
M.M. contends the District Court erred by granting the
Government’s Rule 35(a) motion to amend his sentence. He
argues there was no clear error at the original sentencing that
would justify amendment. “The legal question of whether the
District Court had the authority to amend its sentence is subject
to plenary review.” United States v. Bennett, 423 F.3d 271, 274
(3d Cir. 2005).
A. Sentence Correction Under Rule 35(a)
Generally, a district court “may not modify a term of
imprisonment once it has been imposed.” Dillon v. United
States, 560 U.S. 817, 819 (2010) (quoting 18 U.S.C. §
3582(c)). “The principle of finality underlies the rule that a
court may not substantively alter a judgment.” United States v.
DeLeo, 644 F.2d 300, 301 (3d Cir. 1981) (per curiam). That is
why “we look with disfavor upon changes to a judgment after
the fact.” Bennett, 423 F.3d at 276. However, a district court
may amend a sentence in certain limited circumstances. See 18
U.S.C. § 3582(c). One circumstance is under Federal Rule of
Criminal Procedure 35(a), which provides that “[w]ithin 14
days after sentencing, [a] court may correct a sentence that
resulted from arithmetical, technical, or other clear error.”
There is no issue as to whether the District Court
committed “arithmetical” or “technical” error by using factors
unrelated to M.M.’s substantial assistance to reduce the
sentence below the mandatory minimum. Neither party argues
that it did. Rather, the parties dispute whether the District Court
committed “other clear error” in imposing M.M.’s original
sentence. We conclude it did not. Rule 35(a) offers an
exceedingly narrow basis to correct a sentence. Although the
District Court may have erred in applying the factors of 18
U.S.C. § 3553(a) to M.M.’s sentence, this error was not clear.
6
B. Other Clear Error Is an Exceedingly Narrow Basis to
Amend a Sentence
To answer the question of what can be considered
“other clear error” within the meaning of Rule 35(a), “we
begin, as with any interpretive exercise, with the text of the
rule.” Elliott v. Archdiocese of N.Y., 682 F.3d 213, 225 (3d Cir.
2012) (interpreting Federal Rules of Civil Procedure). This
approach holds true for the Federal Rules of Criminal
Procedure. See Impounded, 277 F.3d 407, 413 (3d Cir. 2002)
(accepting Federal Rule of Criminal Procedure 6(e)(3)(A)(i) as
“meaning what it says” (quoting United States v. John Doe,
Inc. I, 481 U.S. 102, 109 (1987))); accord United States v.
Owen, 500 F.3d 83, 89 (2d Cir. 2007).
In its entirety, Rule 35(a) reads: “Within 14 days after
sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error.” The Rule does not
define “other clear error.” The Advisory Committee’s notes,
although “not authoritative,” offer “insights into the proper
interpretation of a Rule’s text.” Black v. United States, 561
U.S. 465, 475 (2010) (Scalia, J., concurring); Krupski v. Costa
Crociere S. p. A., 560 U.S. 538, 557 (2010) (Scalia, J.,
concurring). Here, they explain that clear error would “extend
only to those cases in which an obvious error or mistake has
occurred in the sentence” that “would almost certainly result in
a remand of the case to the trial court.” Fed. R. Crim. P. 35
advisory committee’s note to 1991 amendments. The Rule is
“intended to be very narrow” and “is not intended to afford the
court the opportunity to reconsider the application or
interpretation of the sentencing guidelines or for the court
simply to change its mind about the appropriateness of the
sentence.” Id.; see also United States v. Arroyo, 434 F.3d 835,
838 (6th Cir. 2006) (“The authority conferred by Rule 35(a) to
a district court is extremely limited.”). Moreover, the
7
Committee “explicitly cautions that [Rule 35(a)] was not
intended to be used as a method for reopening issues already
decided, or to address questions related to the district court’s
discretion” during sentencing. United States v. Higgs, 504 F.3d
456, 462 (3d Cir. 2007).
The notes further describe the Rule as codifying the
holdings of two courts of appeals decisions: United States v.
Cook, 890 F.2d 672 (4th Cir. 1989), and United States v. Rico,
902 F.2d 1065 (2d Cir. 1990). Fed. R. Crim. P. 35 advisory
committee’s note to 1991 amendments. In Cook, the Fourth
Circuit dealt with a patently illegal sentence; a district court
had sua sponte corrected a sentence that was not authorized by
the then-mandatory sentencing guidelines. 890 F.2d at 674–75.
And in Rico, the Second Circuit affirmed the district court’s
correction of a sentence that mistakenly deviated from the
court-accepted plea agreement. 902 F.2d at 1066–68. The
sentence was illegal because it effectively rejected the
agreement sub silentio. See id. at 1066.
While the notes reveal that Rule 35(a) is meant to be
narrow, neither the notes nor the Rule’s own language clarify
its exact contours. Just how “clear” must error be to permit
correction? We agree with the Fifth Circuit that “[i]t is not
entirely clear whether a district court [is] authorized to
withdraw any sentence that would have been vacated and
remanded on appeal or only a narrower subset of such
sentences and, if the latter, what criteria [are] to be used to
determine the boundaries.” United States v. Ross, 557 F.3d
237, 240 (5th Cir. 2009).
When meaning is not clear from plain text, as with Rule
35(a), ejusdem generis, a canon of statutory construction,
serves as “a useful tool.” Defoe v. Phillip, 702 F.3d 735, 748
(3d Cir. 2012) (quoting Waterfront Comm’n of N.Y. Harbor v.
8
Elizabeth–Newark Shipping, Inc., 164 F.3d 177, 184 (3d Cir.
1998)). Under ejusdem generis, “when a general term follows
a specific one, the general term should be understood as a
reference to subjects akin to the one with specific
enumeration.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers
Ass’n, 499 U.S. 117, 129 (1991). Following this interpretation,
“other clear error” in Rule 35(a) can be read in connection with
the two previous terms in the list: “arithmetical” and
“technical.” See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1625 (2018) (explaining that when “a more general term
follows more specific terms in a list, the general term is usually
understood to embrace only [terms] similar in nature to those
[terms] enumerated by the preceding specific words” (internal
quotation marks omitted)). Thus, clear error must be akin to an
arithmetical or a technical error. Consistent with this
conclusion, in Bennett, we assumed the district court’s failure
to include an order of forfeiture in its sentence, which “was in
effect a clerical error,” was “other clear error” under Rule
35(a). 423 F.3d at 273, 277. We also described Rule 35(a) as a
“simpler method” to modify such error than Rule 36 of the
Federal Rules of Criminal Procedure, which allows for the
correction of clerical error in a judgment. Id. at 277.
Further, we find persuasive Chief Justice Roberts’s
exposition of Rule 35 in his dissent in Dolan v. United States,
560 U.S. 605 (2010). There, he noted that a sentence, once
imposed, “is final and the trial judge’s authority to modify it is
narrowly circumscribed.” Id. at 622 (Roberts, C.J., dissenting,
joined by JJ. Stevens, Scalia, and Kennedy). He also
highlighted that Congress significantly constricted the scope of
Rule 35 such that “[t]oday an error may be corrected by the
trial court only if it is ‘clear,’ and only within 14 days after the
sentence is announced.” Id. at 623. As examples of clear errors
subject to correction under Rule 35(a), the Chief Justice cited
9
the failure to impose a mandatory term of imprisonment, a
mandatory fine, or a mandatory order of restitution. Id. Such
errors—like arithmetical and technical errors—are easily
identifiable and readily ascertained from the sentencing
proceeding and judgment. These errors also produce illegal
sentences outside of a court’s discretion. In sum, Rule 35(a)
offers an extremely limited basis on which to correct a
sentence.
C. The District Court Did Not Clearly Err in Discussing the §
3553(a) Factors
Reviewing the record, we are not convinced the District
Court committed error, much less “clear error” at sentencing.
At the outset, we note that M.M. pleaded guilty to an offense
with a mandatory minimum sentence. “When Congress
establishes a minimum sentence for a particular crime, district
courts are required to sentence defendants guilty of that crime
to a term of imprisonment no less than the Congressionally
prescribed minimum, unless an explicit exception to the
minimum sentence applies.” Winebarger, 664 F.3d at 392.
Section 3553(e) is such an exception. Id.; see also United
States v. Kellum, 356 F.3d 285, 289 (3d Cir. 2004) (describing
§ 3553(e), relating to substantial assistance, and (f), relating to
“safety valve” factors, as the “only” two exceptions to a
mandatory minimum sentence). Specifically, § 3553(e)
provides that “[u]pon motion of the Government, the court
shall have the authority to impose a sentence below a level
established by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.”
18 U.S.C. § 3553(e) (emphasis added).
Additionally, a sentence reduced below the mandatory
minimum under § 3553(e) “shall be imposed in accordance
10
with the guidelines,” including § 5K1.1 of the United States
Sentencing Guidelines. Id. Similar to § 3553(e), § 5K1.1
provides that “[u]pon motion of the government stating that the
defendant has provided substantial assistance . . . , the court
may depart from the guidelines.” U.S.S.G. § 5K1.1. It lists
some factors that a court may consider, but is “not limited to”:
(1) the “usefulness of the defendant’s assistance”; (2) “the
truthfulness, completeness, and reliability of [the provided]
information”; (3) “the nature and extent of the . . . assistance”;
(4) “any injury . . . or any danger . . . to the defendant or his
family” caused by the cooperation; and (5) “the timeliness of
the . . . assistance.” Id. Though this list is non-exhaustive, the
factors all center around the “substantial assistance” that a
defendant provides to the government’s investigation or
prosecution, and any other factors the court decides to apply
“must bear some relationship to the defendant’s assistance” as
well. Winebarger, 664 F.3d at 394.
Relying on Winebarger, the Government contends the
District Court incorrectly reduced M.M.’s sentence below the
mandatory minimum based in part on the § 3553(a) factors.
M.M., on the other hand, argues there was no error in the
original sentence that would justify amendment. He contends
the District Court was free, at the initial sentencing, to reduce
his sentence below the mandatory minimum based on factors
related to substantial assistance as authorized by § 3553(e), and
then to reduce it further “as a matter of its discretion, applying
the sentencing factors and objectives of 18 U.S.C. § 3553(a).”
Appellant’s Br. 10.
When departing below a mandatory minimum for
substantial assistance, § 3553(a) factors cannot be used to
further reduce a sentence. See Winebarger, 664 F.3d at 389. “If
a district court imposes a sentence below the statutory
minimum in part so as to reflect the history and characteristics
11
of the defendant, [as provided in 18 U.S.C. § 3553(a)(1),] then
the court exceeds the limited authority granted by § 3553(e).”
Id. at 393 (quoting United States v. Williams, 474 F.3d 1130,
1132 (8th Cir. 2007)). M.M.’s argument is one we have already
considered and rejected. “According to this argument, once a
district court approves a § 3553(e) motion, it should employ
the same sentencing methodology it would use if the defendant
had never been subject to a mandatory minimum sentence—
considering the sentencing guidelines and the full panoply of
factors that can influence a sentence thereunder.” Winebarger,
664 F.3d at 396; cf. Appellant’s Br. 13 (making the same
argument). As we concluded then, so we must conclude now:
“We cannot accept this reasoning.” Winebarger, 664 F.3d at
396.
However, as we held in United States v. Casiano, a
court may properly consider § 3553(a) factors to limit the
extent of a downward departure for substantial assistance. 113
F.3d 420, 431 (3d Cir. 1997). There, the district court granted
only a small departure from the then-mandatory sentencing
guidelines because of the seriousness of the crime and the
impact on the victim. Id. at 428. In upholding the district court,
we acknowledged the holdings of other circuits forbidding the
use of factors unrelated to a defendant’s cooperation to extend
a departure for substantial assistance. Id. at 429 (collecting
cases). But we noted that despite “the facial appeal of
symmetry,” the district court was not constrained to
considering just substantial assistance factors in “its decision .
. . to limit the extent of the departure.” Id. at 430 (emphasis
added).
In addition, we “encourage district courts to consider all
relevant facts and factors in reaching their decisions” when
facing proposed departures for substantial assistance. United
States v. Torres, 251 F.3d 138, 148 (3d Cir. 2001). And
12
relevant factors are not limited to those that are statutorily
enumerated. Id. Indeed, we emphasized in Torres the need for
an “individualized examination,” alongside consideration of §
5K1.1 factors, in assessing a defendant’s substantial assistance.
Id. at 147. Thus, in light of Casiano and Torres, a district
court’s consideration of § 3553(a) factors unrelated to
substantial assistance does not amount to error if these factors
do not actually serve as the basis for extending a § 3553(e)
departure.
To illustrate this rule in operation, we consider a
hypothetical case. In our hypothetical, a statute presents a
mandatory minimum of 100 months’ imprisonment. Pursuant
to a government motion to depart for substantial assistance, the
court could decide—based on factors concerning the
defendant’s assistance alone—that an appropriate sentence is
50 months’ imprisonment. The court could then permissibly
decide that the § 3553(a) factors warrant an increase of this
sentence to 70 months’ imprisonment. It could not decide,
however, that the § 3553(a) factors warrant a further reduction
to a sentence of 30 months’ imprisonment.
Here, it was not clear at the time of sentencing whether
the District Court invoked the § 3553(a) factors to further
extend the downward departure or, conversely, to limit the
departure it decided to grant at the closed hearing. The former
is forbidden by Winebarger; the latter is permitted by Casiano.
At the open hearing, the District Court did not reference the
mandatory minimum sentence or M.M.’s cooperation with the
Government. However, the District Court stated it had “chosen
to vary below the guideline range due to holistic consideration
of Mr. [M.M.]’s background and mental health and substance
abuse issues, his relative lack of a criminal history, and the
relatively minor amount of heroin and fentanyl involved in the
13
instant offense.” J.A. 67. Yet the District Court had already
indicated during the closed hearing that it would grant a
downward departure for substantial assistance. No party
contends that the District Court, in exercising its discretion,
could not reduce M.M.’s term to 120 months based solely on
his cooperation with the Government. Without knowing how
much the District Court initially planned to depart on this basis,
it is impossible to determine from the sentencing record alone
whether the District Court in fact relied on § 3553(a) factors to
extend the downward departure.
Nonetheless, in the District Court’s own view, it
committed clear error at sentencing. In granting the
Government’s Rule 35(a) motion to correct the sentence, the
District Court concluded that the sentence resulted from clear
error because it had “premised the reduction on” the
application of § 3553(a) factors to M.M. J.A. 154–55.
The Government asks us to consider the District Court’s
“admission of clear error” to be the end of the matter.
Appellee’s Br. 26–27 (internal quotation omitted). By the
Government’s logic, clear error occurred at sentencing because
the District Court expressly said so in its Rule 35 order.
However, we are not bound by the District Court’s assessment
of what constitutes clear error. See Bennett, 423 F.3d at 274.
Here, our understanding that Winebarger error affected
M.M.’s original sentence arises from the District Court’s
subsequent interpretation of its own sentencing. After all, as
noted above, we do not perceive error from the record at
sentencing. If our ability to detect error in this case depends
entirely on the District Court’s post hoc clarification, then such
error could hardly be clear. Therefore, even accepting the
District Court’s characterization of its own sentencing as being
in breach of Winebarger, it could not use Rule 35(a) to correct
the sentence.
14
In any event, the type of error that occurred here simply
does not fit the parameters of Rule 35(a). The Government
argues the District Court applied the wrong legal standard, yet
the alleged error is not a technical, arithmetical, or even clerical
mistake. Rather, it is the sort of issue best addressed on direct
appeal, not in a motion with a fourteen-day window. The
procedural history of this case does not reveal error that could
be easily identified or readily ascertained from the sentencing
record. We are also not confronted with an illegal sentence as
the original 120-month term still fell within the District Court’s
discretion. Without more, we cannot hold that any admitted
Winebarger error in this case constitutes “other clear error.”
Rule 35(a)’s exceedingly narrow language simply does not
permit the District Court’s correction to M.M.’s sentence.
Accordingly, the amended sentence was improper.
Outcome: For these reasons, we will vacate the revised 180-month
sentence and remand with instructions for the District Court to
reinstate the original 120-month sentence
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