United States v. Scott Rothstein (11th Cir. September 2019)

Sentencing/Rule 35 Motion – Where the plea agreement gives the Government discretion to file a motion for a sentence reduction, the Government also has discretion to withdraw such a motion.

Scott Rothstein appealed a ruling by the district court granting the Government’s motion to withdraw a Rule 35 motion it had previously filed to reduce the Rothstein’s sentence.

The Government had filed a motion under Rule 35 within a year after Rothstein’s sentencing, emphasizing that Rothstein’s cooperation was “not yet complete” but that the Government was filing the motion to “preserve” the sentencing court’s jurisdiction. Six years later, the Government moved to withdraw its Rule 35 motion after Rothstein allegedly provided false material information to the Government. The district court granted the Government’s motion over Rothstein’s objections.

Rothstein appealed, arguing that the Government breached the agreement because its discretion in considering whether to file a Rule 35 motion ended once it filed the motion, and it could not then withdraw the motion. Alternatively, Rothstein argued that he was entitled to an evidentiary hearing on the Government’s motion to withdraw.

On appeal, the Court disagreed. The Court held that there was no “analytical difference between the Government withdrawing a previously filed Rule 35 motion, and the Government refusing to file a Rule 35 motion at all.” The Court emphasized that the plea agreement’s provisions on cooperation gave the Government the “sole and unreviewable” discretion to determine whether to file a motion for a sentence reduction and explicitly stated that nothing in the Agreement “may be construed to require the Government to file any such motion.” Moreover, the Government’s Rule 35 motion, joined by Rothstein’s counsel, asked the Court to withhold on ruling on the motion but “expressly reserved” the right to withdraw the motion if Rothstein failed to comply with the terms of the agreement.

By the plain language of the plea agreement and applying principles of contract law, the Court concluded that the agreement created a reasonable expectation that the Government had the discretion to withdraw its Rule 35 motion notwithstanding the “placeholder” motion it had filed. The Court rejected Rothstein’s argument that he was entitled to an evidentiary hearing on the Government’s motion, reasoning that the issue at hand was a “purely legal question” relating to the Government’s discretion.

Appeal from Southern District of Florida

Opinion by Tjoflat, joined by W. Pryor and Grant

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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