United States v. Tadio

• Decision Date: 21 November 2011
• Docket Number: No. 10–10144.,10–10144.
• Citation: 11 Cal. Daily Op. Serv. 14059,663 F.3d 1042,2011 Daily Journal D.A.R. 16785
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dennis TADIO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 14,059

2011 Daily Journal D.A.R. 16,785

663 F.3d 1042

UNITED STATES of America, Plaintiff–Appellee,

v.Dennis TADIO, Defendant–Appellant.

No. 10–10144.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 15, 2011.Filed Nov. 21, 2011.

Harlan Yoshito Kimura, Honolulu, HI, for the appellant.

Thomas J. Brady, Office of the United States Attorney, Honolulu, HI, for the appellee.

Appeal from the United States District Court for the District of Hawaii, Helen Gillmor, Senior District Judge, Presiding. D.C. No. 1:07–cr–00486–HG–1.Before: A. WALLACE TASHIMA, WILLIAM A. FLETCHER, and MARSHA S. BERZON, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

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. 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 18 U.S.C. § 3553(a), in order to ensure that the sentence ultimately imposed accords with the purposes of sentencing that Congress has articulated. See § 3553(a)(2). 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.

Here, after considering federal prisoner Dennis Tadio's offense conduct and criminal history, the district court granted a sentence reduction of 24 months, which is what the government had requested based on Tadio's assistance. Tadio appeals, contending first that the district court erred by considering non-assistance factors when it decided on the length of the sentence reduction, and second that the district court assigned too low a value to the assistance he provided. The government contends that the district court did not err in considering the non-assistance factors when it decided whether to grant a sentence reduction greater than what Tadio's assistance, considered alone, warranted. The government also argues that if the district court applied the appropriate legal standard under Rule 35(b), we lack jurisdiction to review the court's exercise of discretion in choosing the length of the sentence reduction. We agree with the government and the district court. Because the district court applied the correct legal standard in this case, we affirm its consideration of non-assistance factors and dismiss Tadio's challenge to the length of the sentence reduction.

I. Factual and Procedural Background

In November 2007, Dennis Tadio pled guilty to one count of witness intimidation, in violation of 18 U.S.C. § 1512(b)(1), after threatening a witness who was to testify in the federal murder prosecution of some of Tadio's criminal associates. The U.S. Probation Officer prepared Tadio's Presentence Investigation Report (“PSR”) in January 2008. The PSR calculated an Offense Level of 27. After assessing criminal history points for state convictions for second-degree assault, prohibited possession of a firearm, unauthorized control of a propelled vehicle, second-degree terroristic threatening, and first-degree criminal trespass, the PSR placed Tadio in Criminal History Category V. That combination yielded a Guidelines range of 120–150 months. Because the statutory maximum sentence for witness intimidation was then 10 years, 18 U.S.C. § 1512(b) (2000) (amended in 2002 and 2008), Tadio's advisory Guidelines “range” became 120 months. See U.S.S.G. § 5G1.1(c)(1).

After his arrest, Tadio assisted the government in prosecuting several of his former criminal associates. To reward Tadio's cooperation, the government moved prior to sentencing for a downward departure to a Guidelines range of 70–87 months. See U.S.S.G. § 5K1.1. In March 2008, the district court granted the government's motion and sentenced Tadio to 87 months.

Tadio continued to cooperate after sentencing. He provided credible trial testimony that resulted in several convictions. The government acknowledges that Tadio's testimony was given “at great risk to his own personal safety.” While incarcerated at federal facilities in California and Hawaii, Tadio received both direct and indirect threats of physical violence. To reward Tadio's continued cooperation, the government moved in January 2010, pursuant to Fed.R.Crim.P. 35(b)(2)(B), to reduce Tadio's sentence by an additional 24 months. Tadio countered by proposing a reduction of 48 months, arguing that the government's Rule 35(b) motion failed adequately to capture both the significance of his assistance and the danger he had courted by cooperating. Tadio also asserted that other people who cooperated in the prosecution of his former criminal associates “received far greater reductions in their sentences even though their testimonies were not as valuable to the Government.”

The district court granted the government's motion and reduced Tadio's sentence by 24 months, resulting in a 63–month sentence. The court explained:

[T]he Defendant substantially assisted the Government in the investigation and prosecution of criminal activity. A reduction of Defendant's sentence pursuant to Rule 35(b)(2)(B) is appropriate. Based on the nature of Defendant's cooperation, the Court grants a sentence reduction of 24 months. Given the circumstances of Defendant's criminal conduct, and Defendant's prior criminal history, the Court finds a reduction of 24 months to be consistent with the Sentencing Guidelines and the Sentencing Commission's policy statements.

Tadio moved for reconsideration, arguing that the district court erred by considering factors other than his substantial assistance—namely, “the circumstances of[his] criminal conduct, and [his] criminal history”—when it determined the extent of the sentence reduction. Relying on United States v. Doe, 351 F.3d 929, 933 (9th Cir.2003), the court concluded that “Tadio's criminal conduct, as well as his prior criminal history and previous sentencing reductions” were “relevant factors that may be weighed when considering a Rule 35(b) motion.” The court denied Tadio's motion for reconsideration and left his 63–month sentence in place.

Tadio timely appealed.

II. Standard of Review

We determine the existence of our own jurisdiction de novo. Saavedra–Figueroa v. Holder, 625 F.3d 621, 623 (9th Cir.2010). We review the legal question whether a particular factor may be considered in deciding a Rule 35(b) motion de novo. Doe, 351 F.3d at 932.

III. Discussion

A. Appellate Jurisdiction

We first consider the government's argument that we lack appellate jurisdiction. “[T]he exclusive avenue of appeal of rulings on Rule 35(b) motions is 18 U.S.C. § 3742.” United States v. Montalvo, 581 F.3d 1147, 1150 (9th Cir.2009) (quoting United States v. Arishi, 54 F.3d 596, 599 (9th Cir.1995)). Section 3742(a)(1) provides that a defendant may obtain review of a sentence that “was imposed in violation of law.” In Doe, we held that § 3742(a)(1) conferred jurisdiction to review the denial of a Rule 35(b) motion where the defendant had argued “that his sentence was imposed in violation of law because the district court considered factors other than his substantial assistance to the government.” 351 F.3d at 932. Tadio advances the same argument. We conclude, as we did in Doe, that jurisdiction is proper under § 3742(a)(1). See also, e.g., United States v. Grant, 636 F.3d 803, 809 (6th Cir.2011) (en banc) (jurisdiction proper under § 3742(a)(1) where defendant argues that “the district court committed an error of law by misapprehending the factors it was allowed to consider in deciding the Rule 35(b) motion”); United States v. Chapman, 532 F.3d 625, 628–29 (7th Cir.2008); United States v. Manella, 86 F.3d 201, 202–03 (11th Cir.1996).

We agree with the government that if the district court's consideration of factors other than Tadio's substantial assistance was proper, such that the sentence imposed was not “in violation of law,” we lack jurisdiction to review the court's exercise of its discretion in choosing the amount of the sentence reduction awarded. See United States v. Pedroza, 355 F.3d 1189, 1190–91 (9th Cir.2004) (per curiam) (no jurisdiction under § 3742 to review defendant's claim that district court “abused its discretion by failing to reduce his offense level, and consequently his sentence, to a degree that he believes properly reflects the assistance he provided to the government” ); Doe, 351 F.3d at 932; Arishi, 54 F.3d at 597–98. We therefore dismiss Tadio's challenge to the amount of sentence reduction that his assistance warranted and confine our review to Tadio's argument that the district court, by considering factors other than his substantial assistance, imposed a sentence “in violation of law.” See, e.g., Chapman, 532 F.3d at 628.

B. Factors That May Be Considered in Deciding a Rule 35(b) Motion

A district court “generally ‘may not modify a term of imprisonment once it has been imposed.’ ” Dillon v. United States, ––– U.S. ––––, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271 (2010) (quoting 18 U.S.C. § 3582(c)). However, Congress has provided several exceptions to this general rule. One exception is that a district court “may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). Rule 35(b)(1) provides that “[u]pon the government's motion made within one year of sentencing, the court may reduce a sentence...