In U.S. v. McNeese, No. 08-10093 (Nov. 3, 2008), the Court held that the government does have the authority to limit a Rule 35(b) motion for reduction of sentence to one count of an indictment, and thereby preclude a district court from resentencing a defendant to sentence less than that previously imposed on a separate count of the indictment.
The defendant was convicted on two counts. On one count the court imposed a life sentence, on the other count it imposed a 240-month sentence. After the defendant gave "substantial assistance" to law enforcement, the government moved, under Rule 35(b), to reduce sentence on the count for which a life sentence was imposed, but not on the other count. The defendant wanted a sentence below 240 months. The court imposed a 240 month sentence, noting that it could not resentence below 240 months because the government had not moved for a Rule 35(b) reduction for that count.
The Court rejected McNeese’s argument that the sentencing court had authority to sentence below 240 months. The Court noted that the government could control McNeese’s sentence, and that its failure to seek a sentence reduction could only be challenged if it had "unconstitutional motives" for not doing so – something McNeese did not allege.
