United States v. Ann Jenkins ( 1997 )

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No. 96-1944
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Ann Jenkins, *
* [PUBLISHED]
Appellant. *
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Submitted: December 27, 1996
Filed: January 27, 1997
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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
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PER CURIAM.
Ann Marie Jenkins pleaded guilty to a cocaine distribution conspiracy
offense. In April 1995, the district court1 sentenced her to sixty months
in prison and ordered her to surrender to begin her sentence in October.
In November 1995, because of the prospect that Jenkins's on-going
cooperation would result in a government motion to reduce her sentence, see
Fed. R. Crim. P. 35(b), the court further delayed her surrender date to
February 1996. When no government motion was filed in February, Jenkins
filed a motion to set aside the order to surrender, and to set aside her
guilty plea or enforce a plea agreement. Jenkins appeals the district
court's denial of that motion.
1
The HONORABLE HENRY WOODS, United States District Judge for
the Eastern District of Arkansas.
On appeal, Jenkins argues that the government breached an unwritten
promise to file a Rule 35(b) motion if she cooperated, that she pleaded
guilty in reliance on that promise, and therefore that the district court
erred in not conducting a hearing on her motion to withdraw or enforce the
plea. After careful review of Jenkins's submission to the district court,
we conclude that the court did not abuse its discretion in denying a post-
judgment motion to set aside her guilty plea or enforce an alleged oral
understanding that the government would accept her cooperation and file a
Rule 35(b) motion to reduce her sentence. Thus, we affirm.
Jenkins's motion was primarily a twelfth-hour attempt to further
delay her surrender date. We express no view as to whether any of
Jenkins's fact assertions, if properly supported, might entitle her to
relief under 28 U.S.C. § 2255. Although only the government may file a
Rule 35(b) motion for reduction in sentence based upon post-judgment
substantial assistance, a plea agreement promise to file such a motion is
enforceable. See United States v. Hernandez, 34 F.3d 998, 1000 (11th Cir.
1994); Bischel v. United States, 32 F.3d 259, 264 (7th Cir. 1994).
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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