Sealed v. Sealed ( 2020 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60732 June 4, 2020
Summary Calendar
Lyle W. Cayce
Clerk
SEALED APPELLEE,
Plaintiff-Appellee
v.
SEALED APPELLANT, referred as ‘Jane Doe’,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
After Jane Doe’s 270-month sentence for conspiracy to possess
methamphetamine with intent to distribute was reduced to 188 months
pursuant to the Government’s Federal Rule of Criminal Procedure 35(b)
motion based on her substantial assistance, Doe moved the district court to
compel the Government to move for an additional Rule 35(b) reduction, arguing
that her reduced sentence does not adequately reflect the extent of her
assistance. The district court denied relief, and Doe appeals, contending that
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
No. 19-60732
(1) the denial of her motion to compel was error and (2) the district court should
have provided her with counsel to assist the Government in preparing the
original Rule 35(b) motion. She also seeks an order sealing the record on
appeal. The Government moves to dismiss the appeal for lack of jurisdiction
or, alternatively, for summary affirmance, arguing that Doe’s challenge to the
denial of Rule 35(b) relief is foreclosed.
We conclude that neither dismissal nor summary affirmance is
appropriate in this case. See Gibson v. Kilpatrick, 773 F.3d 661, 673 (5th Cir.
2014); Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
We therefore deny the Government’s motions to dismiss the appeal and for
summary affirmance.
Nonetheless, we affirm the judgment without the need for additional
briefing. Doe’s mere argument that she provided substantial assistance does
not entitle her to a Rule 35(b) sentence reduction. See Wade v. United States,
504 U.S. 181, 185-86 (1992); United States v. Grant, 493 F.3d 464, 467 (5th Cir.
2007). Doe does not allege any unconstitutional motive on the Government’s
part, nor did the Government bargain away its Rule 35(b) discretion.
Accordingly, Doe’s argument that the district court erred by denying her
motion to compel is without merit. See United States v. Jackson, 22 F.3d 583,
585 (5th Cir. 1994).
It is not clear that Doe’s second argument—that she should have been
given counsel to assist in preparing the original Rule 35(b) motion—is properly
before us in light of her failure to appeal that issue following the initial grant
of Rule 35(b) relief. In either event, we have long held that there is no right to
counsel in relation to a Rule 35(b) motion. See United States v. Palomo, 80
F.3d 138, 142 (5th Cir. 1996).
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No. 19-60732
The Government’s motions to dismiss the appeal and for summary
affirmance are DENIED. The judgment is AFFIRMED. Doe’s motion to seal
the record on appeal is GRANTED.
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