U.S. v. Orozco

• Citation: 160 F.3d 1309
• Decision Date: 17 November 1998
• Docket Number: No. 97-8213,97-8213
• Parties: 12 Fla. L. Weekly Fed. C 283 UNITED STATES of America, Plaintiff-Appellee, v. Alain OROZCO, a.k.a. Allan Jene Velasquez, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1309

160 F.3d 1309

12 Fla. L. Weekly Fed. C 283

UNITED STATES of America, Plaintiff-Appellee, v. Alain OROZCO, a.k.a. Allan Jene Velasquez, Defendant-Appellant.

No. 97-8213.

United States Court of Appeals Eleventh Circuit.

Nov. 17, 1998.

Howard J. Manchel, Atlanta, GA, for Defendant-Appellant.

Kent Alexander, U.S. Atty., James T. Martin, Asst. U.S. Atty., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior Circuit Judges.

BIRCH, Circuit Judge:

This case presents the issue of whether a district judge has jurisdiction under Federal Rule of Criminal Procedure 35(b) to grant a motion for reduction of sentence when information provided by a defendant is useful in convicting a coconspirator, but the assistance occurs more than one year after imposition of sentence and the information was known by the defendant prior to sentencing. The district judge determined that he was without jurisdiction to rule on this motion outside the prescribed time period. We affirm.

I. BACKGROUND

In December, 1989, defendant-appellant, Alain Orozco, was arrested for transporting cocaine from South Florida to Atlanta, Georgia. On July 9, 1990, he pled guilty in the Northern District of Georgia to conspiring to manufacture, distribute, and possess cocaine base and cocaine hydrochloride in violation of 21 U.S.C. § 846 and making a false statement to the Federal Bureau of Investigation to conceal his identity in violation of 18 U.S.C. § 1001. In an effort to have the government file a U.S.S.G. § 5K1.1 departure motion at sentencing, Orozco informed the government of his knowledge of the cocaine distribution operation in which he was involved. In addition to other information regarding the cocaine distribution conspiracy, Orozco identified Armando Rodriguez, a major cocaine distributor for whom he provided cocaine transportation services, and related details concerning their transactions. The government, however, concluded that Orozco was not entirely truthful and had minimized some information about the cocaine distribution operation. Additionally, the information that he supplied could not be used by the government against Orozco's four codefendants charged in the indictment or others that he named because of venue problems or lack of corroborating evidence.

Concluding that the information provided by Orozco prior to his sentencing was insufficient to qualify as substantial assistance, the government did not move for a reduction in his sentence under section 5K1.1. On November 16, 1990, Orozco was sentenced to 151 months of imprisonment for his role in the cocaine distribution conspiracy. This court affirmed his sentence. See United States v. Orozco, 964 F.2d 1146 (11th Cir.1992) (mem.).

Within a year of Orozco's sentencing, the government filed a preliminary motion under Rule 35(b) that advised the district judge that Orozco's cooperation had not been completed. The government requested the district judge not to rule on the motion until it was supplemented or withdrawn. When Orozco furnished no additional information, the government withdrew its preliminary Rule 35(b) motion. ¹ In 1996, the United States Attorney for the Northern District of Florida learned that Orozco had information that could assist the government in its prosecution of Rodriguez, who had been indicted for distributing cocaine after being a fugitive for five years before his arrest. ² At Rodriguez's trial in May, 1996, over four years after Orozco's sentence became final, Orozco testified that Rodriguez supplied him with five kilograms of cocaine, which he brought to Atlanta. Additionally, he corroborated the testimonies of earlier government witnesses. Orozco's testimony was the same evidence that he had provided in 1990 to Federal Bureau of Investigation and Drug Enforcement Administration agents. Because of his assistance, the Florida Assistant United States Attorney recommended to the Georgia Assistant United States Attorney ("AUSA") that a Rule 35(b) motion be filed for Orozco. In the government's motion for reduction of sentence, filed on December 17, 1996, in the Northern District of Georgia, the AUSA explained that the information upon which the motion was based was known to Orozco at his sentencing but that the government could not use the information until more than one year after Orozco had been sentenced. ³ In the motion, the AUSA advised that "Orozco appeared and testified with the understanding that no guarantee was made as to any sentence reduction" and that, "because this motion is made more than one year after imposition of sentence," the district judge must determine whether he "has jurisdiction to consider this motion and grant any reduction of the previously imposed sentence." R1-152-2.

The same district judge in the Northern District of Georgia who had sentenced Orozco conducted a hearing on the government's Rule 35(b) motion on January 30, 1997. The AUSA informed the district judge that, when Orozco was prosecuted and debriefed in 1990, he had related information concerning Rodriguez. Because Rodriguez could not be located, Orozco's information could not be used to prosecute him at that time. Thus, the government did not file a motion to reduce Orozco's sentence for substantial assistance.

In response to the district judge's inquiry about the terms of Orozco's plea agreement, the AUSA advised that the agreement did not require that the government file a Rule 35(b) motion but stated that the government would inform the district judge and file a section 5K1.1 motion if Orozco provided substantial assistance prior to his sentencing. Absent his being able to order the government to file a Rule 35(b) motion pursuant to the terms of the plea agreement, the district judge concluded that he was without jurisdiction under the rule to consider a Rule 35(b) motion for substantial assistance at that time. ⁴ Orozco appeals this ruling.

II. DISCUSSION

In this appeal, we must decide whether the district judge correctly determined that he did not have jurisdiction to consider a Rule 35(b) motion for reduction of sentence, when Orozco provided information known to him prior to his sentencing but that information was not useful in prosecuting Rodriguez until over a year after imposition of Orozco's sentence. We review a district judge's statutory interpretation and application de novo. See United States v. Grigsby, 111 F.3d 806, 816 (11th Cir.1997). When a statute has been duly enacted and the language is plain, " 'the sole function of the courts is to enforce it according to its terms.' " Central Trust Co. v. Official Creditors' Comm. of Geiger Enters., Inc., 454 U.S. 354, 359-60, 102 S.Ct. 695, 698, 70 L.Ed.2d 542 (1982) (per curiam) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). "Review of the legislative history is not necessary unless a statute is inescapably ambiguous." Solis-Ramirez v. United States Dept. of Justice, 758 F.2d 1426, 1430 (11th Cir.1985) (per curiam); see United States v. Rush, 874 F.2d 1513, 1514 (11th Cir.1989) (recognizing that legislative history is not used to create ambiguity where statutory language is clear).

Federal Rule of Criminal Procedure 35(b) provides:

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. The court may consider a government motion to reduce a sentence made one year or more after imposition of the sentence where the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after imposition of sentence. The court's authority to reduce a sentence under this subsection includes the authority to reduce such sentence to a level below that established by statute as a minimum sentence.

18 U.S.C. app. Fed.R.Crim.P. 35(b) (1994) (emphasis added). Our court previously has held that the time period stated within the rule for the government to file a Rule 35(b) motion is jurisdictional. See In re United States, 898 F.2d 1485, 1486 (11th Cir.1990) (per curiam) (citing United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242-43, 60 L.Ed.2d 805 (1979)); United States v. Rice, 671 F.2d 455, 459 (11th Cir.1982). ⁵ We also have determined that "sentence is imposed for the purposes of Rule 35(b) when the sentencing order constitutes a final, appealable order," which signifies the commencement of the running of the specified time period. In re United States, 898 F.2d at 1487. Additionally, we have clarified the "temporal framework" involved with the government's acknowledging a convicted defendant's substantial assistance prior to sentencing in a section 5K1.1 motion at sentencing and the government's rewarding a convicted defendant's substantial assistance to the government after sentencing with a Rule 35(b) motion. ⁶ See United States v. Alvarez, 115 F.3d 839, 842 (11th Cir.1997); United States v. Howard, 902 F.2d 894, 896 (11th Cir.1990).

Prior to the current version of Rule 35(b), the time period within which a Rule 35(b) motion requesting a sentence reduction for post-sentencing assistance could be filed was limited to the specified time period stated in Rule 35(b) from the date on which the convicted defendant's sentence became final. ⁷ The current version, resulting from the 1991 amendment to Rule 35, restricts the time period within which the government may file a Rule 35(b) motion to "one year after the imposition of the sentence" but extends the time...