United States v. Terrance Griffin, United States of America v. Joseph H. Donnell, United States of America v. Kevin Cokes , 17 F.3d 269 ( 1994 )

BEAM, Circuit Judge.

Terrance Griffin, Kevin Cokes and Joseph Donnell were arrested for conspiracy to distribute cocaine base. All three entered pleas of guilty and cooperated with the FBI and other drug enforcement authorities in investigations of the drug conspiracy. In exchange for this cooperation, the government made 5K1.1 motions for downward departure at the sentencing hearings in all three cases. As a result, Griffin, Cokes and Donnell received sentences significantly below the guideline range and below the statutory ten-year mandatory minimum. The government later filed a motion for correction of sentence pursuant to Rule 35(b)¹ and requested a further reduction in the sentences for subsequent, substantial assistance.

The same district judge² who initially sentenced the appellants directed a magistrate judge to conduct hearings and to recommend a disposition for the Rule 35(b) motions. The magistrate judge issued findings of fact and conclusions of law recommending that the Rule 35(b) motions be denied as inappropriate. After an independent review of the record, the district court adopted the magistrate judge’s report and denied the motions. Griffin, Cokes, and Donnell appeal contending that the Rule 35(b) motions were an integral part of their plea agreements and that the district court abused its discretion by denying the motions. We affirm.

The government filed the Rule 35(b) motions, thereby fulfilling any obligations it may have had under the plea agreement. The appellants concede that the district court was not bound to grant the Rule 35(b) motions. After a hearing, the magistrate judge concluded that the appellants had not provided subsequent, substantial assistance that would warrant further reductions in their sentences. The district court adopted this conclusion. The decision to grant or deny a Rule 35(b) motion is entirely within the discretion of the district court. Goff v. United States, 965 F.2d 604 (8th Cir.1992) (per curiam). Absent an abuse of that discretion,³ the appellate courts cannot interfere. We find no evidence that the district court abused its discretion in this case. Accordingly, the decision of the district court is affirmed.

1 . Rule 35(b) states in part:

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....

Fed.R.Crim.P. 35(b) (emphasis added).

2 . The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.

3 . The appellants allege that the magistrate judge’s report revealed bias against them. We read the magistrate judge's report differently. The magistrate judge chastised the government for bringing Rule 35(b) motions without adequate grounds. He rejected the government's contention that the willingness of the appellants to testify against co-conspirators constituted subsequent, substantial assistance. Instead, the magistrate judge concluded that this cooperation was part of the assistance contemplated by the 5K1.1 reduction granted by the district court. He also noted that the Rule 35(b) motion with regard to Griffin was time-barred. We cannot conclude that these findings constitute an abuse of discretion.

While chastising the government, the magistrate judge discussed in detail how he would have managed the plea agreements had he been the Assistant United States Attorney in charge of the case. We are troubled by this digression and by the weight that the magistrate judge seemed to place on an internal Justice Department memo issued by former Attorney General Thornburgh. However, we cannot agree with the appellants’ contention that these comments amount to an abuse of discretion. Nothing in the record indicates any bias against these particular defendants, or, indeed, against any defendants. Furthermore, after an independent review of the record, the district court concluded that the 5K1.1 departures contemplated the cooperation that the government now raises as grounds for further reductions in sentence. The district judge who had responsibility for the initial sentencing is clearly in the best position to determine what kinds of cooperation the 5K1.1 departures encompassed.