U.S. v. Manella

• Decision Date: 25 June 1996
• Docket Number: No. 94-3546,94-3546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis John MANELLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 201

86 F.3d 201

UNITED STATES of America, Plaintiff-Appellee, v. Francis John MANELLA, Defendant-Appellant.

No. 94-3546.

United States Court of Appeals Eleventh Circuit.

June 25, 1996.

Thomas M. Dawson, Leavenworth, Kansas, for appellant.

Edward L. White, III, Tamra Phipps, Asst. U.S. Attys., Orlando, Florida, Kathy J.M. Peluso, Asst. U.S. Atty., Tampa, Florida, for appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before COX and BARKETT, Circuit Judges, and MOORE ^*, Senior District Judge.

PER CURIAM:

Francis John Manella appeals the district court's order granting the Government's Rule 35(b) motion to reduce Manella's sentence. This case involves the question of what factors a district court may consider in determining the extent of a Rule 35(b) sentence reduction. The factors considered by the district court in this case were appropriate under the rule. We affirm.

I. Facts and Procedural History

Manella and two others were named in an indictment that included four counts charging narcotics offenses and two forfeiture counts. Manella agreed to enter a guilty plea to Count One, which charged conspiracy to import 6,000 pounds of hashish into the United States in violation of 21 U.S.C. § 963 (1994). Pursuant to the plea agreement, Manella promised to cooperate with the Government in connection with the matters made the subject of the remaining charges in the indictment and other investigations. In return, the Government agreed to consider filing motions pursuant to United States Sentencing Guideline § 5K1.1 and Rule 35(b) of the Federal Rules of Criminal Procedure. ¹

Manella was sentenced in April 1992. The sentencing court adopted the presentence investigation report ("PSI"), which concluded that Manella's base offense level was 36, and that he was entitled to a two-level downward departure for acceptance of responsibility. On the Government's motion, the sentencing court also granted a three-level downward departure under U.S.S.G. § 5K1.1 for substantial assistance that Manella had provided prior to sentencing. The court concluded that Manella's guideline range was 108 to 135 months, and sentenced him to 120 months imprisonment.

After sentencing, Manella continued to help the Government with several investigations of drug trafficking and other illegal activities. The Government filed a Rule 35(b) motion in January 1993 to make the motion timely, advising the court that Manella continued to assist the Government, and requesting that an evidentiary hearing not be held until the completion of his assistance. The court denied the motion, stating that it was familiar with Manella's assistance, and that no further reduction would be granted. Manella appealed. We held that the denial of the motion was a breach of Manella's plea agreement, and remanded for a hearing before a different district judge. United States v. Manella, 37 F.3d 635 (11th Cir.1994) (citing United States v. Yesil ("Yesil I"), 991 F.2d 1527 (11th Cir.1992)).

At the Rule 35(b) hearing, a second judge heard evidence of Manella's post-sentencing cooperation, and found that Manella's cooperation was "significant, useful, truthful, reliable, timely, extensive, at risk of danger or injury to himself and his family, and of substantial benefit to the Government." (R. 1-205 at 4.) The Government recommended that Manella's sentence be reduced by sixty months. The court granted a reduction of seven months. ² In determining the extent of the reduction granted, the court considered factors listed in 18 U.S.C. § 3553(a)(1) and (2) (1994), including "the nature and circumstances of the offense of conviction and the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment." (R. 1-205 at 5.) The court also considered the leniency of the original sentence imposed. ³

On appeal, Manella challenges the order granting a reduction in his sentence, arguing that the court misapplied Rule 35(b) when it considered factors other than his substantial assistance. In its brief, the Government concedes, based on an unpublished opinion of this court, that the district court misapplied Rule 35(b). At oral argument, the Government invited the court to reject the opinion as unpersuasive. See 11th Cir.R. 36-2 (unpublished opinions are not binding authority, but are persuasive).

II. Discussion

A. Appealability

We must first determine whether we have jurisdiction over Manella's appeal, which is taken from an order granting him Rule 35(b) relief. Because we view a district court's ruling on a Rule 35(b) motion as falling within the common sense meaning of an "otherwise final sentence," this court has held that appeals from such rulings are governed by 18 U.S.C. § 3742 (1994). United States v. Chavarria-Herrara, 15 F.3d 1033, 1034-36 (11th Cir.1994); Yesil I, 991 F.2d at 1531 n. 4. ⁴ This statute provides for limited review of federal sentences; review is only available for certain claims by the defendant, and certain claims by the Government. A district court's decision to grant or deny a Rule 35(b) motion is a discretionary one from which an appeal generally will not lie under § 3742. Yesil I, 991 F.2d at 1531. But Manella does not challenge the merits of the district court's Rule 35(b) determination. Instead, Manella claims that the court misapplied Rule 35(b) by considering factors other than his substantial assistance. Thus, Manella's claim is that his sentence was imposed in violation of law. The sentence is appealable under § 3742(a)(1). See Chavarria-Herrara, 15 F.3d at 1034-35, 1037 (11th Cir.1994) (holding that the Government could appeal a Rule 35(b) determination under § 3742(b) where the Government's claim was that the district court misapplied Rule 35(b)).

B. Rule 35(b)

Because our exercise of jurisdiction is proper, we may address the issue presented by this appeal: whether the district court properly considered factors that militated against granting a Rule 35(b) reduction in weighing the defendant's substantial assistance. The application of law to sentencing issues is subject to de novo review. United States v. Robinson, 935 F.2d 201, 205 (11th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 789 (1992). ⁵

Rule 35(b) is the mechanism by which a district court may, on the Government's motion, reduce a sentence to reflect substantial assistance provided by the defendant to the Government after sentencing. Our interpretation of Rule 35(b) begins with the relevant portion of its text:

Reduction of Sentence for Changed Circumstances. The court, on motion of the Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code....

See Boca Ciega Hotel Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 (11th Cir.1995) (stating that the interpretation of a statute begins with its text).

In Chavarria-Herrara, we held that the district court misapplied Rule 35(b) when it granted a reduction that was based in part on factors other than the defendant's substantial assistance, including the defendant's first-time offender status, relative culpability, and good prison behavior. 15 F.3d at 1037; see United States v. Aponte, 36 F.3d 1050, 1051 (11th Cir.1994) (applying the rule from Chavarria-Herrara in the context of a downward departure pursuant to 18 U.S.C. § 3553(e)). Our decision in Chavarria-Herrara was grounded in the language of the rule: "The plain language of Rule 35(b) indicates that the reduction shall reflect the assistance of the defendant; it does not mention any other factor that may be considered." 15 F.3d at 1037.

Manella argues that, under Chavarria-Herrara, the defendant's substantial assistance is the sole factor that the district court may consider on a Rule 35(b) motion. He contends that the court erred when it considered other factors that militated against a reduction in his case. But the facts in Chavarria-Herrara are distinguishable from this case. In Chavarria-Herrara, the district court's reduction of a sentence was based on factors other than cooperation. In Manella's case, the district court's refusal to reduce a sentence by the requested amount was based on factors other than cooperation. While relevant to our reading of Rule 35(b), Chavarria-Herrara does not control the issue presently before us.

Manella also cites an unpublished opinion of this court in support of his reading of Rule 35(b). This court is not bound by its unpublished opinions, but they are persuasive authority. 11th Cir.R. 36-2. In United States v. Yesil ("Yesil II"), as in Manella's case, the case was remanded to a second district judge for a Rule 35(b) evidentiary hearing. No. 93-2499, unpublished at 2-3, 48 F.3d 534 (11th Cir. Feb. 8, 1995). At the Rule 35(b) hearing, the second judge concluded that the defendants' sentences were "exceedingly lenient," and took this factor into account in determining the extent of the substantial assistance reduction granted. On appeal, we reversed and remanded with instructions for the district court to consider only the defendants' substantial assistance in making the Rule 35(b) determination. Id. at 4 (citing Chavarria-Herrara, 15 F.3d at 1037).

Manella is correct that he prevails if we adopt the holding in Yesil II, but we decline to do so. A careful reading of Rule 35(b) reveals that the text does not prohibit the consideration of any factor other than the defendant's substantial assistance. The rule states that "[t]he court ... may reduce a sentence to reflect a defendant's subsequent, substantial assistance...." Under this language, the only factor that may militate...