SDNY Judge Holds Court May Consider Factors Other Than Substantial Assistance In Rule 35 Reduction

It has long been the practice in this circuit for a district court to consider all 18 U.S.C. § 3553 factors in deciding the extent of a 5K1.1 departure for a defendant's "substantial assistance" to the government.  Now, in United States v. Park, 05 CR 59 (DC) 2008 WL 355613 (S.D.N.Y. February 11, 2008), a judge has reached the very reasonable conclusion that a court may similarly consider all these factors in deciding the extent of a sentence reduction under Rule 35 (the rule governing post-sentence reductions for a defendant's cooperation efforts). 

The judge drew a distinction between granting the motion to reduce the sentence, and determining the extent of the reduction.  As to the first prong, the judge ruled that the court may only consider the defendant's efforts to provide assistance to the government.  As to the second prong, the judge held, however (and over the government's objection), that the full panoply of § 3553 factors come into play.  The judge reasoned that § 3553(a) is mandatory, without providing any exception for resentencings under Rule 35(b); the plain wording of Rule 35(b)(1) does not preclude considering other factors; the advisory committee notes to Rule 35(b)(1) support the conclusion; in applying Rule 35(b)(1), courts are to look for guidance to cases applying 5K1.1, which, as noted above, in this circuit apply all § 3553 factors; and caselaw outside the circuit supports the conclusion that all factors should be considered. 

This means, of course, that since the defendant is most likely incarcerated, the court may, on a Rule 35 motion, consider the defendant's experience in prison, including positive adjustment, rehabilitation or mistreatment, as well as changed personal or family circumstances.