A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose
Click to download OpinionUSA v Tadio

On November 21, 2011, the U.S. Court of Appeals for the Ninth Circuit issued an Opinion in the matter of UNITED STATES OF AMERICA v. DENNIS TADIO, Appellant, No. 10-10144, an appeal from the United States District Court for the District of Hawaii.

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 was 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.

The Court held that once a district court determines that a defendant has provided substantial assistance in the investigation or prosecution of another person, the court may consider the 18 US Code § 3553(a) factors to award a sentence reduction that is greater than the reduction that the defendant’s assistance, considered alone, would warrant. However, the Court noted that a resentencing under Rule 35(b) is not the equivalent of a de novo sentencing and the district court is not free to impose whatever sentence it now believes to be just, irrespective of the original sentencing and the amount of assistance rendered by the defendant. Rather, a Rule 35(b) proceeding is a resentencing in which the starting point is the original sentence, and in which the amount of assistance rendered by the defendant is the triggering factor for any reduction. Nevertheless, the district court may properly consider the § 3553(a) factors in determining the amount of reduction and it may use those non-assistance factors to reduce the sentence by an amount different from what the defendant’s assistance, considered alone, would warrant.

NOTE: Your distinguished reporter is aware of no decisions by the Third Circuit on this issue (but Peter Goldberger can set us straight).

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

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