Petition for Writ of Certiorari — Cedric Milburn, Petitioner v. United States

NO._____________

IN THE SUPREME COURT OF THE UNITED STATES

CEDRIC MILBURN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

PHILIP G. GALLAGHER

Federal Public Defender

Southern District of Texas

R. VICTORIA GARCÍA-CROSS

Assistant Federal Public Defender

Attorneys for Appellant

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1056

Telephone: (713) 718-4600

QUESTION PRESENTED

There is a conflict among the United States Courts of Appeals regarding the proper

interpretation of Federal Rue of Criminal Procedure 35(b).

The question is: whether Rule 35(b) gives criminal defendants the right to notice

and the opportunity to be heard before a district court can resolve a motion for a sentencing

reduction based on cooperation with the government (as the Second, Fourth, and Sixth

Circuits hold), or whether it does not give defendants these rights (as the Fifth Circuit

holds).

i

RELATED PROCEEDINGS

United States District Court for the Southern District of Texas:

United States v. Cedric Milburn, No. 19-cr-677-8 (September 4, 2024)

United States Court of Appeals for the Fifth Circuit:

United States v. Cedric Milburn, No. 24-20534 (July 9, 2025)

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................................................................................................. i

RELATED PROCEEDINGS .............................................................................................. ii

TABLE OF CONTENTS ................................................................................................... iii

TABLE OF CITATIONS ................................................................................................... iv

OPINIONS BELOW ........................................................................................................... 1

JURISDICTION .................................................................................................................. 1

RELEVANT STATUTORY PROVISION ......................................................................... 2

INTRODUCTION ............................................................................................................... 3

STATEMENT OF THE CASE ........................................................................................... 5

REASONS FOR GRANTING THE WRIT ........................................................................ 8

A.

The courts of appeals are divided on the question presented. ............................ 8

B.

This is an important issue worthy of the Court’s review. ................................. 13

C.

This case is an ideal vehicle for addressing this question. ............................... 15

D.

The Fifth Circuit’s decision was wrong. ........................................................... 16

CONCLUSION ................................................................................................................. 20

APPENDIX A: Panel opinion in

United States v. Cedric Milburn, No. 24-20534, 2025 WL 1894946

(5th Cir. July 9, 2025) .................................................................................................. 1a

iii

TABLE OF CITATIONS

Page

CASES

Betterman v. Montana, 578 U.S. 437 (2016) .................................................................... 18

Roberts v. United States, 445 U.S. 552 (1980) .................................................................. 14

Ruan v. United States, 597 U.S. 450 (2022) ........................................................................ 6

United States v. [Redacted], 986 F.3d 642

(6th Cir. 2021).................................................................................................................. 9

United States v. Alvarez, 115 F.3d 839

(11th Cir. 1997), superseded by rule on other grounds as recognized in

United States v. Johnson, 241 F.3d 1049

(11th Cir. 2001).............................................................................................................. 13

United States v. Arishi, 54 F.3d 596

(9th Cir. 1995)................................................................................................................ 18

United States v. Doe, 938 F.3d 15

(2d Cir. 2019) ................................................................................................................... 9

United States v. Doe, 940 F.2d 199

(7th Cir. 1991)................................................................................................................ 18

United States v. Foster, 575 F.3d 861

(8th Cir. 2009)................................................................................................................ 19

United States v. Gangi, 45 F.3d 28

(2d Cir. 1995) ..................................................................................................9, 11-12, 18

United States v. Grant, 493 F.3d 464

(5th Cir. 2007)................................................................................................................ 17

United States v. Grant, 636 F. 3d 803

(6th Cir. 2011) (en banc)................................................................................................ 10

United States v. Green, 129 F. App’x 823

(11th Cir. 2006) (unpublished) ...................................................................................... 18

iv

TABLE OF CITATIONS – (cont’d)

Page

CASES - (cont’d)

United States v. Harmon, 150 F.4th 197

(3d Cir. 2025) ................................................................................................................. 18

United States v. Jules, 595 F.3d 1239

(11th Cir. 2010).............................................................................................................. 19

United States v. La Guardia, 902 F.2d 1010

(1st Cir. 1990) ................................................................................................................ 14

United States v. Lewis, 673 F.3d 758

(8th Cir. 2011)................................................................................................................ 14

United States v. Marks, 244 F.3d 971

(8th Cir. 2001)................................................................................................................ 17

United States v. Maxwell, 501 F. App’x 394

(6th Cir. 2012) (unpublished) ........................................................................................ 10

United States v. McAndrews, 12 F.3d 273

(1st Cir. 1993) ................................................................................................................ 11

United States v. McMahan, 872 F.3d 717

(5th Cir. 2017)......................................................................................................... passim

United States v. McNew, No. 24-5792, 2025 WL 2491516

(6th Cir. Apr. 2, 2025) (unpublished) ............................................................................ 18

United States v. Mercado-Moreno, 869 F.3d 942

(9th Cir. 2017)................................................................................................................ 19

United States v. Mueller, 168 F.3d 186

(5th Cir. 1999)................................................................................................................ 18

United States v. Mulero-Algarin, 535 F.3d 34

(1st Cir. 2008) ................................................................................................................ 17

United States v. Neal, 611 F.3d 399

(7th Cir. 2010)................................................................................................................ 18

v

TABLE OF CITATIONS – (cont’d)

Page

CASES - (cont’d)

United States v. Orjuna, 351 F. App’x 418

(11th Cir. 2009) (unpublished) ...................................................................................... 13

United States v. Peoples, 38 F. App’x 704

(3d Cir. 2002) (unpublished) ......................................................................................... 18

United States v. Pridgen, 64 F.3d 147

(4th Cir. 1995)................................................................................................................ 10

United States v. Shelby, 584 F.3d 743

(7th Cir. 2009)................................................................................................................ 17

United States v. Taylor, 414 F.3d 528

(4th Cir. 2005)................................................................................................................ 11

United States v. Vonn, 535 U.S. 55 (2002) ........................................................................ 16

United States v. White, 71 F.3d 920

(D.C. Cir. 1995) ............................................................................................................. 13

Wade v. United States, 504 U.S. 181 (1992) ................................................................. 9, 17

STATUTES AND RULES

18 U.S.C. § 2 ....................................................................................................................... 5

18 U.S.C. § 3553 ................................................................................................................. 3

21 U.S.C. § 841(a)(1) .......................................................................................................... 5

28 U.S.C. § 1254(1) ............................................................................................................. 1

Fed. R. Crim. P. 35(b) ................................................................................................ passim

Sup. Ct. R. 13.1.................................................................................................................... 1

Sup. Ct. R. 13.3.................................................................................................................... 1

vi

TABLE OF CITATIONS – (cont’d)

Page

SENTENCING GUIDELINES

USSG §5K1.1 ............................................................................................................. passim

MISCELLANEOUS

Ann C. Rowland, Effective Use of Informants and Accomplice Witnesses,

50 S. CAROLINA L. REV. 679 (1990).............................................................................. 14

Fed. R. Crim. P. 11 Advisory Committee Notes (2007) .............................................. 16-17

Shana Knizhnik, Failed Snitches and Sentencing Stitches: Substantial Assistance

and the Cooperator’s Dilemma,

90 N.Y.U. L. REV. 1722 (2015) ..................................................................................... 15

U.S. SENT’G COMM’N, The Use of Federal Rule of Criminal Procedure 35(b) (2016) ... 15

vii

OPINIONS BELOW

On July 9, 2025, the United States Court of Appeals for the Fifth Circuit granted the

government’s motion for summary affirmance, and it affirmed the judgment of the District

Court for the Southern District of Texas. See Appendix A.

JURISDICTION

The Fifth Circuit granted the government’s motion for summary affirmance on July

9, 2025. See Appendix A. This petition is filed within 90 days of that date. See Sup. Ct.

R. 13.1 & 13.3. This Court has jurisdiction under 28 U.S.C. § 1254(1).

1

RELEVANT STATUTORY PROVISION

Rule 35 of the Federal Rules of Appellate Procedure provides:

(b) Reducing A Sentence for Substantial Assistance.

(1) In General. Upon the government’s motion made within one year of

sentencing, the court may reduce a sentence if the defendant, after

sentencing, provided substantial assistance in investigating or prosecuting

another person.

(2) Later Motion. Upon the government’s motion made more than one year

after sentencing, the court may reduce a sentence if the defendant's

substantial assistance involved:

(A) information not known to the defendant until one year or more

after sentencing;

(B) information provided by the defendant to the government within

one year of sentencing, but which did not become useful to the

government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have

been anticipated by the defendant until more than one year after

sentencing and which was promptly provided to the government after

its usefulness was reasonably apparent to the defendant.

(3) Evaluating Substantial Assistance. In evaluating whether the defendant

has provided substantial assistance, the court may consider the defendant's

presentence assistance.

(4) Below Statutory Minimum. When acting under Rule 35(b), the court may

reduce the sentence to a level below the minimum sentence established by

statute.

2

INTRODUCTION

This petition involves a clear split of authority concerning Federal Criminal

Procedure Rule 35(b), the sole mechanism for reducing an already-imposed federal

sentence based on a criminal defendant’s cooperation with the government.

Federal law allows district courts to reduce a defendant’s sentence if they provide

substantial assistance to the government. If the defendant provides that assistance before

sentencing, the district court may reduce the sentence pursuant to Sentencing Guidelines

Section 5K1.1 and 18 U.S.C. § 3553. If a defendant cooperates with the government after

sentencing, the district court may reduce their sentence under Rule 35(b).

It is well-established that, when a district court assesses a motion for a sentencing

reduction based on pre-sentencing cooperation with the government, a defendant has the

right to be heard.

Courts have broadly recognized that a defendant must have an

opportunity to respond to the government’s characterization of their cooperation in a

Section 5K1.1 motion, to advocate for their requested sentence, or to address the lack of a

motion by the government.

However, the courts of appeals have sharply split on the procedure that applies when

the government files a post-sentencing motion under Rule 35(b). The Second, Fourth, and

Sixth Circuits rightly interpret Rule 35(b) consistently with Guidelines Section 5K1.1.

They recognize a defendant’s right to receive notice of, and an opportunity to respond to,

a Rule 35(b) motion. The Fifth Circuit disagrees, maintaining that a defendant has no such

right, and that a district court may decide a Rule 35(b) motion without any input from the

defense.

3

The Court should resolve this conflict and grant certiorari. The Fifth Circuit’s

position is wrong. This case is a good vehicle. And this legal issue is important. It involves

a recurring question, one that has significant implications for nationwide law enforcement

operations and sentencing practices.

4

STATEMENT OF THE CASE

Mr. Milburn’s criminal case stems from an indictment that charged him and seven

other codefendants with conspiring to unlawfully distribute and dispense controlled

substances in violation of 21 U.S.C. § 846. The indictment also charged Mr. Milburn’s

codefendants with the underlying substantive drug offenses in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2.

Mr. Milburn pled guilty and cooperated with the government. He provided the

government with information about the scope of the criminal scheme and the role played

by each member of the conspiracy. Among other things, he testified extensively at a trial

for Hieu Truong, a registered pharmacist who dispensed the drugs involved in the scheme.

With Mr. Milburn’s help, the government obtained a conviction on the substantive charges

filed against Truong. Mr. Milburn’s other codefendants all ultimately entered guilty pleas.

The district court sentenced Mr. Milburn in September of 2022. Before sentencing,

the government filed a motion for a below-Guidelines sentence under Sentencing

Guidelines Section 5K1.1. C.A. ROA.660-664. It noted Mr. Milburn provided substantial

assistance to the government and it requested a below-Guidelines sentence of 141 months’

imprisonment. Mr. Milburn responded to the government’s motion in writing and at

sentencing. He provided additional details about his cooperation, noting the number of

times he met with prosecutors and the extent to which his cooperation placed him at risk.

He requested a sentence below 120 months’ imprisonment.

After considering the

arguments and evidence from all parties, the district court imposed a sentence below what

5

the government requested—120 months’ imprisonment, three years’ supervised release,

and a $100 special assessment.

After Mr. Milburn’s sentencing, the district court granted his codefendant Truong’s

motion for a new trial. It agreed that the instructions it provided the jury in the original

trial were incorrect under a recent opinion from this Court, Ruan v. United States, 597 U.S.

450 (2022). It then scheduled Truong for a second trial in June 2024.

At that point, the government sought Mr. Milburn’s cooperation again. It met with

Mr. Milburn multiple times, prepared him for testimony, and called him as the first

government witness at trial. With Mr. Milburn’s help, it again obtained a conviction on

two of the substantive charges filed against Truong.

After the second trial, the government filed a motion under Rule 35(b) in Mr.

Milburn’s case. It asked the district court to reduce Mr. Milburn’s sentence based on his

post-sentencing cooperation, and it requested a sentence reduction of ten percent—a 12month reduction. C.A. ROA.720-724. Defense counsel filed a written response on

September 9, 2024. C.A. ROA.725-736. She requested a forty-percent reduction in

sentence—a 48-month reduction—based on the increased danger Mr. Milburn and his

family faced as a result of his decision to continue cooperating with the government.

ROA.725-736.

She included a statement from Mr. Milburn as an exhibit.

C.A.

ROA.731-734; C.A. ROA.737.

The district court ultimately granted the Rule 35(b) motion and reduced Mr.

Milburn’s sentence by ten percent, down to 108 months. C.A. ROA.738. The date listed

on the order was September 4, 2024—five days before Mr. Milburn filed his response to

6

the Rule 35(b) motion. C.A. ROA.738. Mr. Milburn filed a motion asking the district

court to reconsider its decision so it could review his response. C.A. ROA.739-43. In the

motion, Mr. Milburn noted the government did not oppose the district court reconsidering

its order in light of Mr. Milburn’s response (but did oppose an additional sentencing

reduction).

CA. ROA.743.

The district court ultimately denied the motion.

C.A.

ROA.324.

Mr. Milburn appealed the decision. He argued that he had a right to be heard on the

government’s Rule 35(b) motion, though he acknowledged the challenge was foreclosed

by binding precedent, United States v. McMahan, 872 F.3d 717, 718-21 (5th Cir. 2017).

Based on McMahan, the government filed a motion for summary affirmance. The Fifth

Circuit granted that motion. See Appendix A.

7

REASONS FOR GRANTING THE WRIT

A.

The courts of appeals are divided on the question presented.

In the Second, Fourth, and Sixth Circuits, a defendant has some opportunity to be

heard when a district court considers reducing their sentence under Federal Rule of

Criminal Procedure 35(b). The Second and Sixth Circuits have held that, when the

government files a Rule 35(b) motion based on a defendant’s post-sentencing cooperation

with law enforcement, the defendant has the right to receive notice of that motion and the

opportunity to respond with their own sentencing recommendation. The Fourth Circuit has

also found that a defendant may also be entitled to an evidentiary hearing in the Rule 35(b)

context. Meanwhile, the Fifth Circuit has interpreted Rule 35(b) as not requiring the

defendant to receive notice or an opportunity to respond. These conflicting rules mean

that, depending on the jurisdiction, a district court will apply different procedures and

review different types of evidence when analyzing motions for a reduction in sentence

under Rule 35(b). This Court’s review is needed to provide uniformity.

1. The Second, Fourth, and Sixth Circuits each recognize a defendant’s right to be

heard with respect to a Rule 35(b) motion.

Three circuits—the Second, Fourth, and Sixth Circuits—correctly recognize a

defendant’s right to be heard as to a Rule 35(b) motion. The Second and Sixth Circuits

have directly held that Rule 35(b) provides a right to notice and an opportunity to respond,

while the Fourth Circuit has generally acknowledged that a defendant may sometimes be

entitled to an evidentiary hearing on a Rule 35(b) motion.

8

The Second Circuit first addressed this question in United States v. Gangi, 45 F.3d

28 (2d Cir. 1995). There, it concluded that the district court reversibly erred by summarily

dismissing a Rule 35(b) motion without permitting the defendant to respond. See id. at 30.

It reasoned as follows. First, Rule 35(b) is similar in “language and function” to its presentencing counterpart, Sentencing Guidelines Section 5K1.1. See id. 30-31 (citing USSG

§5K1.1). Since the defendant has the right to notice and an opportunity to respond in the

Section 5K1.1 context, a defendant should also have those rights in the Rule 35(b) context.

See id. In both circumstances, the district court must consider the impact of assistance on

the defendant and their family—factors a defendant may be best positioned to address. See

id. Second, it is well-established that defendants can challenge a prosecutor’s refusal to

file a Rule 35(b) motion if that refusal is based on an unconstitutional motive. See id. at

31-32 (citing Wade v. United States, 504 U.S. 181 (1992)). Defendants should be similarly

able to challenge the inadequacy of a Rule 35(b) motion. See id. Ultimately, while the

Second Circuit “rest[ed] [its] decision on the requirements of Rule 35,” it also

“recognize[d] that failure to afford an opportunity to be heard would raise grave due

process issues.” Id. at 32; see also United States v. Doe, 938 F.3d 15, 19 (2d Cir. 2019)

(explaining that a defendant still has a due process right to “fundamental fairness” in Rule

35(b) proceedings, “which ordinarily requires that the defendant be given an opportunity

to rebut the factual assumptions relied on by the judge”).

The Sixth Circuit reached the same conclusion in United States v. [Redacted], 986

F.3d 642 (6th Cir. 2021). There, it held that the district court reversibly erred by granting

the government’s Rule 35(b) motion on the day it was filed, without allowing the defendant

9

an opportunity to respond. See id. at 643. It noted that, under its prior decisions, it had

“never called into question the ability of substantial assisters to file a response to the

Government’s Rule 35(b) motion,” and it had held that a district court “does not, merely

by agreeing with the Government’s assessment of the value of the assistance provided,

thereby disavow its statutory discretion.” Id. at 645-46 (citing United States v. Grant, 636

F. 3d 803, 809 (6th Cir. 2011) (en banc), and United States v. Maxwell, 501 F. App’x 394,

396 (6th Cir. 2012) (unpublished)). The Sixth Circuit concluded that those decisions

“support if not compel the legal conclusion that a defendant must have the chance to file a

response to a Rule 35(b) motion.” Id. at 646. Judge Batchelder dissented, however.

[Redacted], 986 F.3d at 647 (Batchelder, J., dissenting). Citing Fifth Circuit precedent,

she opined that “the constrained nature of Rule 35(b) proceedings—and the fact that a

defendant faces no new threat of liberty loss—relieves the district court from administering

adjudicatory formalities such as notifying the defendant of the government’s motion or

permitting the defendant to respond.” Id. at 647 (citing United States v. McMahan, 872

F.3d 717 (5th Cir. 2017)).

Meanwhile, the Fourth Circuit has held that Rule 35(b) permits defendants the right

to an evidentiary hearing under certain circumstances. United States v. Pridgen, 64 F.3d

147, 150 (4th Cir. 1995)). In Pridgen, the Fourth Circuit considered whether the district

court abused its discretion by denying a Rule 35(b) motion without a hearing. See id. The

Fourth Circuit found there was no abuse of discretion. See id. It reached that conclusion

based on the fact that the defendant “d[id] not claim that the Government failed to make

the extent of his assistance known to the court.” Id. The Fourth Circuit subsequently held:

10

“Pridgen stands for the proposition that if the government does not make the extent of a

defendant’s assistance known to the district court in moving for a reduction in the

defendant’s sentence pursuant to Rule 35(b), the defendant may be entitled to an

evidentiary hearing on the government’s motion.” United States v. Taylor, 414 F.3d 528,

538 (4th Cir. 2005). It has not specifically addressed whether procedural due process

guarantees attach to Rule 35(b) proceedings, noting that “the actual constitutional

underpinnings” surrounding this issue are “less than clear” in light of conflicts between the

courts of appeals. Id. 1

2. The Fifth Circuit has declined to recognize a right to notice or a right to respond to

a Rule 35(b) motion.

The Fifth Circuit has adopted a different interpretation of Rule 35(b). It first

addressed the question presented in McMahan, 872 F.3d at 718-21. The defendant in that

case argued the district court reversibly erred by denying the government’s Rule 35(b)

motion two days after the motion was filed, before the defendant received notice or an

opportunity to respond. See id. at 718. Relying on the Second Circuit’s decision in Gangi,

the defendant argued the district court’s decision violated Rule 35(b) and his due process

rights. See id. at 718-719. The Fifth Circuit rejected that argument. See id. It “decline[d]

to extend Gangi’s reach to [the Fifth] Circuit” for the following reasons. Id. 719.

1

The First Circuit has found that a district court does not abuse its discretion when it denies

a defendant’s request for an evidentiary hearing on a Rule 35(b) motion after “offer[ing] no

specifics to contradict the prosecution’s proffer or to suggest material omissions.” United States

v. McAndrews, 12 F.3d 273, 280 (1st Cir. 1993). However, the First Circuit has not specifically

held a defendant has the right to an evidentiary hearing if they make such a showing, nor has it

squarely addressed the question presented. See id.

11

First, it held Gangi “was based on a version of Rule 35(b) that no longer exists.” Id.

It emphasized that, after Gangi was decided, Congress amended Rule 35(b) to omit any

explicit reference to the Guidelines. While the rule previously stated that a district court

could reduce a defendant’s sentence for subsequent substantial assistance to the

government “in accordance with the guidelines and policy statements issued by the

Sentencing Commission,” a 2007 amendment eliminated that reference to the Guidelines

See id. at 719. “[A]bsent such a reference,” the Fifth Circuit concluded, it would “not read

Rule 35(b) as requiring an application of § 5K1.1’s rules.”

Id. at 720.

The court

acknowledged that prior case law from the Fifth Circuit and other courts “recognized

parallels between Rule 35(b) and § 5K1.1,” but it found that those cases simply addressed

“the similarity between the provisions for the purpose of analyzing identical language in

both provisions[,] or for the purpose of explaining the timing of options available when a

defendant provides substantial assistance.” Id. (footnote omitted).

Second, the Fifth Circuit held that interpreting Rule 35(b) to contain a notice and

hearing requirement “would create tension with the authority recognizing that a defendant

possesses many more rights during the sentencing phase of criminal proceedings than

during post-sentencing proceedings.” Id. (quotations omitted). Specifically, it explained

that a notice and hearing requirement would “be in conflict with Rule 43,” which does not

require a defendant’s presence at Rule 35 proceedings. Id. It also concluded that such a

requirement would conflict with the Fifth Circuit’s “previous decisions that the attendant

rights of presence and counsel do not exist at that post-sentencing stage.” Id.

12

Finally, the Fifth Circuit declined to find any due process violations. See id. at 721.

It noted that “this Court need not decide [the due process] issue” because McMahan’s brief

did “not explicitly elaborate on his constitutional argument.” Id. But it emphasized that

“many of the constitutional rights afforded to criminal defendants are not present in Rule

35(b) proceedings because of the Rule’s discretionary nature and the fact that a defendant

faces no new threat of loss of liberty.” Id. It accordingly “reject[ed] McMahan’s due

process argument.” Id. 2

Ultimately, the courts of appeals remain divided on this question, with the Second,

Fourth, and Sixth Circuit interpreting Rule 35(b) to allow defendants some opportunity for

input and with the Fifth Circuit reaching the opposite conclusion. Only this Court can

resolve the circuit split and clarify the proper procedure associated with Rule 35(b)

proceedings.

B.

This is an important issue worthy of the Court’s review.

The question presented involves an exceptionally important, recurring issue. First,

the issue is important. Rule 35(b) is a major tool for incentivizing defendants to cooperate

with law enforcement. See United States v. White, 71 F.3d 920, 924-25 (D.C. Cir. 1995).

Such cooperation is critical to law enforcement efforts. See United States v. La Guardia,

2

The Eleventh Circuit has also previously found that due process guarantees do not attach

to Rule 35(b) proceedings, in a case addressing whether a Rule 35(b) motion could address presentencing cooperation. United States v. Alvarez, 115 F.3d 839, 841 (11th Cir. 1997), superseded

by rule on other grounds as recognized in United States v. Johnson, 241 F.3d 1049, 1054 (11th

Cir. 2001). Additionally, in an unpublished decision, the Eleventh Circuit found that that a district

court does not violate due process by granting a Rule 35(b) motion without allowing the defendant

notice or an opportunity to respond. United States v. Orjuna, 351 F. App’x 418, 421 (11th Cir.

2009) (unpublished).

13

902 F.2d 1010, 1016 (1st Cir. 1990). When defendants cooperate, they provide law

enforcement officers additional information about ongoing or past criminal conduct. See

Ann C. Rowland, Effective Use of Informants and Accomplice Witnesses, 50 S. CAROLINA

L. REV. 679, 680-89 (1990). That additional information helps the government pursue

suspects and acquire evidence.

It can also help the government rule out suspects,

preventing innocent parties from being caught up in criminal prosecution.

And a

cooperator’s statement can be powerful evidence by itself. In a multi-defendant case, one

statement from a cooperator can be the critical piece of evidence convincing the other

codefendants to plead guilty or persuading a jury to convict. A defendant’s willingness to

cooperate is also an important factor for assessing their character. It reflects a defendant’s

remorse, their willingness to cut ties with their criminal community, and their likelihood

of reoffending. See Roberts v. United States, 445 U.S. 552, 558 (1980) (“Few facts

available to a sentencing judge are more relevant to the likelihood that [a defendant] will

transgress no more, the hope that he may respond to rehabilitative efforts to assist with a

lawful future career, [and] the degree to which he does or does not deem himself at war

with his society.”) (quotations omitted); United States v. Lewis, 673 F.3d 758, 763 (8th Cir.

2011) (noting that the risks and dangers a defendant experiences based on their cooperation

with the government are significant considerations for a district court evaluating a Rule

35(b) motion).

The issue in this case is also recurring. It is common for defendants to cooperate

with the government, both before and after their sentencing hearings. See Shana Knizhnik,

Failed Snitches and Sentencing Stitches: Substantial Assistance and the Cooperator’s

14

Dilemma, 90 N.Y.U. L. REV. 1722, 1723, n.1 (2015). Prosecutors also commonly file

substantial assistance motions under either Guidelines Section 5K1.1, Rule 35(b), or both.

U.S. SENT’G COMM’N, The Use of Federal Rule of Criminal Procedure 35(b), at 7-12

(2016). While Rule 35(b) motions are less common than their pre-sentencing counterparts,

they occur in a significant number of cases across the country. See id. The Sentencing

Commission reported that, from fiscal years 2009 through 2014, district courts granted

10,811 reductions under Rule 35(b). See id. at 7. In fact, Rule 35(b) sentencing reductions

“are used as often or more often than §5K1.1 substantial assistance departure” in certain

jurisdictions, including in the Southern District of Illinois, the District of South Dakota, the

District of Nebraska, and the Eastern District of Virginia. See id. at 10. And while these

types of motions are most commonly filed in cases involving mandatory minimum

penalties, they can be filed in any case, regardless of the underlying charges. See id. at 13.

The question presented thus has implications for law enforcement’s ability to

investigate and prosecute criminal offenses, and for a district court’s ability to fairly

sentence criminal defendants. It is a question that will continue to come up in criminal

cases across the country unless this Court intervenes. The Court should grant certiorari to

address this significant and recurring question.

C.

This case is an ideal vehicle for addressing this question.

This case presents an excellent vehicle for addressing the question presented. First,

the case cleanly presents a purely legal issue. There are no disputes about the underlying

facts—it is clear from the date of the district court order that Mr. Milburn did not receive

the opportunity to respond to the government’s Rule 35(b) motions. C.A. ROA.738.

15

Additionally, there are no preservation issues, as Mr. Milburn briefed this issue in the

district court and on appeal. This case is therefore an ideal vehicle for the Court to fully

address the question presented and to resolve the disagreement among the courts of

appeals.

D.

The Fifth Circuit’s decision was wrong.

The Fifth Circuit’s answer to the question presented is wrong. The decision below

summarily affirmed the district court decision based on McMahan. C.A. ROA.324 (citing

McMahan, 872 F.3d at 718-21).

However, McMahan was incorrect because it

misinterpreted the language of Rule 35(b), overlooked the significant parallels between

Rule 35(b) and Guidelines Section 5K1.1, and failed to consider the fact that defendants

retain certain important due process rights after sentencing.

First, McMahan misinterpreted Rule 35(b). It reasoned that Rule 35(b) did not

provide a defendant with the same procedural rights as Section 5K1.1 because Congress

amended Rule 35(b) in 2007 to omit mention of the Guidelines. See id. at 719-20. This

omission, it explained, was indicative of congressional intent. See id. However, the Fifth

Circuit did not consider another indicator of congressional intent—the Advisory

Committee Notes to the 2007 amendment. See Fed. R. Crim. P. 11 Advisory Committee

Notes (2007). “In the absence of a clear legislative mandate the Advisory Committee Notes

provide a reliable source of insight into the meaning of a rule, especially when, as here, the

rule was enacted precisely as the Advisory Committee proposed.” United States v. Vonn,

535 U.S. 55 (2002). Here, the notes clarify that the 2007 amendment “conforms Rule 35(b)

to the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005)[,]” which

16

made the Sentencing Guidelines advisory rather than mandatory. See Fed. R. Crim. P. 11

Advisory Committee Notes (2007). The notes also explain that the purpose of the

amendment was to strike the language “treat[ing] the guidelines as mandatory.” Id. Thus,

contrary to what the Fifth Circuit concluded, the 2007 amendment was not enacted for the

purpose of preventing courts from looking to the Guidelines when interpreting Rule 35(b).

See id.

Second, the Fifth Circuit failed to consider the extent to which the language and

purpose of Rule 35(b) still align with Guidelines Section 5K1.1. Both provisions specify

that only a motion from the government will trigger a reduction in sentence. See Fed. R.

Crim. P. 35(b); USSG §5K1.1. They only permit the government to make such a motion

once the defendant provides “substantial assistance.” See id. And they both have the

purpose of incentivizing cooperation with law enforcement and ensuring that district

courts consider this cooperation at sentencing. See generally United States v. Shelby, 584

F.3d 743, 745 (7th Cir. 2009). Based on these parallels, federal courts continue looking to

the Guidelines when interpreting Rule 35(b). See McMahan, 872 F.3d at 720. According

to the Fifth Circuit, federal courts have only done so when analyzing identical language in

both provisions. See id. But that is not quite right. Federal courts have broadly held, for

example, that this Court’s decision in Wade—which permitted defendants to challenge a

prosecutor’s decision to not file a Section 5K1.1 downward departure based on an

unconstitutional motive—also applies in the Rule 35(b) context. See United States v.

Mulero-Algarin, 535 F.3d 34, 38-39 (1st Cir. 2008); United States v. Grant, 493 F.3d 464,

467 (5th Cir. 2007); United States v. Marks, 244 F.3d 971, 975 (8th Cir. 2001); United

17

States v. Arishi, 54 F.3d 596, 597-98 (9th Cir. 1995); Gangi, 45 F.3d at 31; United States

v. Doe, 940 F.2d 199, 206 (7th Cir. 1991); United States v. McNew, No. 24-5792, 2025

WL 2491516, at *1 (6th Cir. Apr. 2, 2025) (unpublished); United States v. Green, 129 F.

App’x 823, 824-25 (11th Cir. 2006) (unpublished); United States v. Peoples, 38 F. App’x

704, 706-07 (3d Cir. 2002) (unpublished). Ultimately, there is still good reason to believe

that Rule 35(b)’s procedural requirements should be read consistently with those of Section

5K1.1.

Finally, the Fifth Circuit’s decision in McMahan incorrectly analyzes the due

process issue. The Fifth Circuit reasoned that defendants possess fewer rights after

sentencing, and that it would be anomalous to interpret Rule 35(b) to require that

defendants receive an opportunity to respond. See McMahan, 872 F.3d at 721. However,

the Fifth Circuit failed to consider that defendants retain certain limited rights after

sentencing. This Court has explained that a defendant, after conviction, “retains an interest

in a sentencing proceeding that is fundamentally fair.” Betterman v. Montana, 578 U.S.

437, 448 (2016). Five courts of appeal—the Third, Fifth, Seventh, Eighth, and Eleventh

Circuits—have also concluded that procedural due process rights outlined at Sentencing

Guidelines Section 6A1.3(a) apply to post-sentencing motions for sentence reductions

under 18 U.S.C. § 3582(c)(2). See United States v. Harmon, 150 F.4th 197, 199 (3d Cir.

2025) (holding that defendants must receive notice and an opportunity to contest new

information relied upon by the district court in Section 3582(c)(2) proceedings); United

States v. Mueller, 168 F.3d 186, 189 (5th Cir. 1999) (same); United States v. Neal, 611

F.3d 399, 402 (7th Cir. 2010) (same); United States v. Foster, 575 F.3d 861, 863 (8th Cir.

18

2009) (same); United States v. Jules, 595 F.3d 1239, 1245 (11th Cir. 2010) (same). But

see United States v. Mercado-Moreno, 869 F.3d 942, 956 (9th Cir. 2017) (reaching the

opposite conclusion). Finally, as noted above, federal appellate courts broadly agree that

defendants have the opportunity to challenge a prosecutor’s failure to file a Rule 35(b)

motion based on an unconstitutional motive. Ultimately, the fact that a defendant has fewer

rights during their post-sentencing proceedings does not necessarily mean a defendant has

no right to receive notice and an opportunity to respond to a Rule 35(b) motion.

This Court should grant certiorari to correct the Fifth Circuit’s decision and to set

forth the proper interpretation of Rule 35(b).

19

CONCLUSION

The petition for a writ of certiorari should be granted.

Date: October 7, 2025

Respectfully submitted,

PHILIP G. GALLAGHER

Federal Public Defender

Southern District of Texas

s/ R. Victoria García-Cross

R. VICTORIA GARCÍA-CROSS

Assistant Federal Public Defender

Attorneys for Appellant

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1056

Telephone: (713) 718-4600

20