holding that “a Government motion is required to trigger the current Rule 35(b)”
How later courts described this case
- holding that “a Government motion is required to trigger the current Rule 35(b)”
- in this case the court determined that because the defendant's "crimes were committed before November 1, 1987, he fits within a window where both versions of the rule apply. The new rule applies because it is retroactive. The old rule applies because his crimes were committed before the effective date of the new rule."
- "Throughout our opinion, we cite precedent construing Rule 35(b), § 3553(e), and Federal Sentencing Guidelines § 5K1.1 (permitting a district court to depart from the Sentencing Guidelines for substantial assistance
- noting that cases construing 35(b), § 3553(e) and § 5K1.1 can be used "interchangeably”
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring.
I agree wholly with almost all that Judge Eschbach has written for the panel. I write separately only to indicate my belief that the proper test for measuring any prosecutor’s refusal to file a Rule 35(b) motion is whether the refusal is arbitrary or in bad faith. See United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), ce rt. denied, — U.S. -, 110 S.Ct. 1493 , 108 L.Ed.2d 629 (1990). United States v. Bayles, 923 F.2d 70, 71-72 (7th Cir.1991), leans somewhat against finding such an exception, and United States v. Donatiu, 922 F.2d 1331 , 1334-35 & n. 3 (7th Cir.1991), remains agnostic on the matter; neither resolved the issue definitively. Other circuits, as Judge Eschbach points *207 out, are not consistent on the question, and at this time I believe that due process requires such an exception to the government’s discretion.