Thursday, November 17th, 2022

Defendants may not use a purported motion to correct a sentence under Rule 35 to circumvent an appeal waiver.

The Circuit held today, in United States v. Rakhmatov, No. 21-151(L) (2d Cir. Nov. 17, 2022), that “when a challenge to a prison sentence purportedly under [Fed. R. Crim. P.] 35(a) does not fall within the narrow scope of Rule 35(a), an appeal waiver can bar consideration of the motion.”

Rakhmatov pleaded guilty to conspiracy to provide material support to a terrorist group. His plea agreement said he would not appeal or “otherwise challenge” any prison sentence of 150 months or less.

Three days after being sentenced to 150 months, Rakhmatov moved to correct the sentence, citing Rule 35(a).  The motion argued that the district court “failed to properly apply the sentencing factors,” producing a sentence that was “unreasonable” and “greater than necessary.”  The district court denied the motion, holding that it was not a proper Rule 35(a) motion and, in any event, was barred by the appeal waiver. The defendant then appealed from that decision.

The Circuit ruled that the appeal waiver barred both the purported Rule 35(a) motion and the appeal from the denial of that motion. The Court did not decide whether an appeal waiver can bar a genuine  motion to correct a “technical, arithmetic, or other clear error,” as specified in Rule 35(a). The motion in this case, however, was not a proper or genuine Rule 35(a) motion. Instead, it was, in the Court’s view, simply an effort to obtain substantive review of the sentence, which the appeal waiver was designed to prevent. In the Court’s words:  “Simply citing Rule 35(a) … cannot allow a defendant to obtain substantive review that would otherwise be barred by an appeal waiver.  If Rule 35(a) were to permit such end-runs, it would functionally deprive the government of the benefit of the waiver.” Accordingly, the Court dismissed Rakhmatov’s appeal from the denial of his Rule 35(a) motion.

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Categories: appeal waiver, Rule 35(a)
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