In United States v. Rothstein, No. 18-11796 (Sept. 30, 2019) (Tjoflat, William Pryor, Grant), the Court affirmed the grant of a government motion to withdraw a Rule 35 motion.
The Court rejected the defendant's argument that, although the government had discretion not to file a Rule 35 motion at all, the government lacked discretion to withdraw the placeholder motion that it filed for purposes of preserving the court's jurisdiction in the event it elected to proceed. Although the cooperation agreement itself said nothing about withdrawing a Rule 35 motion, the Court reasoned that accepting the defendant's argument would allow a technicality to intrude on prosecutorial discretion. In addition, the government specifically advised the defendant in the placeholder motion that it retained the right to withdraw the motion if the defendant breached the cooperation agreement, and that the cooperation was not yet complete. Finally, the Court found no abuse of discretion in denying the defendant an evidentiary hearing to show that he complied with the cooperation agreement, because the only issue was a legal one about whether the government retained the discretion to withdraw the motion.