Saturday, November 26, 2011

Case o' The Week: Ninth Breaks "One-Way Ratchet" - Tadio, Rule 35(b), and Sentencing

What could be more unfair than a "one-way ratchet": a rule that allows factors which aggravate -- but do not mitigate -- a defendant's sentence?

Fortunately, Judge William Fletcher doesn't buy it, either. United States v. Tadio, 2011 WL 5839660 (9th Cir. Nov. 21, 2011), decision available here.

(Ed. Note: Westlaw has glitched its star cites in the WL version - apologies for missing pin citations).

Players: Welcome decision with new Ninth rule by Judge W. Fletcher (left).

Facts: Tadio pled guilty to threatening a federal witness in a murder case. Cooperation before sentencing earned him a 33-month break. He continued to cooperate after sentencing, with trial testimony that lead to criminal convictions.

To reward Tadio, the government moved under Rule 35(b) for an additional 24 month reduction. Tadio countered and asked for 48 more months off. The district court went with the government’s recommendation, given “the circumstances of Defendant’s criminal conduct, and Defendant’s prior criminal history.” Over defense objection, the court held that non-Rule 35 facts “were relevant factors that may be weighed when considering a Rule 35(b) motion.” Tadio appealed, arguing only Rule 35(b) should be considered.

Issue(s): “Federal Rule of Criminal Procedure 35(b) authorizes a district court, on the government’s motion, to reduce a defendant's sentence ‘if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.’ The question in this case is whether a district court may consider factors other than a defendant’s substantial assistance in determining the amount of a Rule 35(b) sentence reduction.”

Held: “We hold that once a district court determines that a defendant has provided substantial assistance to the government, the court may consider factors other than assistance, including those listed in . . . § 3553(a), in order to ensure that the sentence ultimately imposed accords with the purposes of sentencing that Congress has articulated . . . . The sentence imposed must be related to the degree of assistance rendered, but a district court may consider non-assistance factors in awarding a reduction, whether that reduction is greater than, less than, or equal to the reduction that a defendant’s assistance, considered alone, would warrant.”

Of Note: Mr. Tadio’s loss is our gain. The Eleventh and Seventh Circuits have considered this issue, and held that non-Rule 35(b) factors were a “one way rachet” – they could mean a higher sentence, butLinkcouldn’t let a court go down beyond the government’s recommendation. Judge W. Fletcher calls out the injustice (and illogic) of that view, and adopts a good new rule for the Ninth: “[W]e agree with those courts that allow the district court to consider the full range of factors referenced in § 3553(a) when determining the amount to reduce a sentence under a Rule 35(b) motion. However, unlike courts that have held that non-assistance factors operate as a one-way ratchet, we see no basis for that limitation. Instead, we adopt a symmetrical rule, under which the district court may consider the non-assistance factors listed in § 3553(a) when determining how much to reduce a defendant’s sentence, irrespective of the direction in which those factors cut.” (emphasis added).

How to Use: What, realistically, more can a cooperator hope to gain on a second sentencing under this new rule? Well, thanks to a terrific Sotomayor decision, post-offense rehabilitation is now fair game for the court’s consideration on a second sentencing. See Pepper v. United States, 131 S.Ct. 1229 (2011).

Interestingly, Judge W. Fletcher spices Tadio with Pepper, relying on the Supreme Court case to rebut a number of the government’s arguments. For a full paean to Pepper, and more tipsLink on how to use the case, see Champion article here.

For Further Reading: The Stevens case in Alaska has been a jaw-dropping revelation of Brady abuses by the federal government. A remarkable new order provides a glimpse of the secret report of the scandal. Turns out that prosecutors aren’t being referred for criminal contempt prosecution, because the district court never issued a “a ‘clear and unequivocal'Linkorder directing the attorneys to follow the law.” (?!?!) So here’s an absurd but apparently necessary practice tip: start cases by moving for a clear order that AUSAs are to “follow the law.”

For presiding Judge Sullivan’s (above right) – pointed – views on these latest developments, see his order here.

Image of the Honorable William Fletcher from Image of the Honorable Judge Emmet Sullivan from Image of ratchet from

Steven Kalar, Senior Litigator N.D. Cal. Website at


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