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United States v. Bishop

United States District Court, W.D. New York

February 26, 2015

UNITED STATES OF AMERICA,
v.
TYREE BISHOP, Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

Defendant Tyree Bishop pled guilty on February 8, 2012, to conspiracy to possess with intent to distribute, and to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. This Court thereafter sentenced Bishop to, inter alia, a term of imprisonment of 96 months on May 23, 2012.

Presently before this Court is the Government's Motion to Reduce Bishop's offense level by 2 levels pursuant to Rule 35(b)(2)(B) of the Federal Rules of Criminal Procedure.[1] In support of its motion, the Government has filed the sealed affidavit of Timothy C. Lynch, Assistant United States Attorney. The affidavit describes the valuable assistance Bishop has provided in the prosecution of his co-defendants and others.[2]

This Court has carefully considered the parties' submissions and concludes that Bishop has earned the sentence reduction requested by the Government. Accordingly, the Government's motion is granted, and Bishop's sentence will be reduced from 96 months to 77 months, based on a 2-level reduction in Bishop's total offense level.

II. DISCUSSION AND ANALYSIS

A. Rule 35(b): Reducing a Sentence for Substantial Assistance

Rule 35(b)(1) permits a court, upon the Government's motion within one year of sentencing, to reduce a defendant's sentence if he or she "provided substantial assistance in investigating or prosecuting another person." If the Government's motion is made more than one year after sentencing, which is the case here, the defendant's substantial assistance must involve the following type of information:

(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

Fed. R. Crim. P. 35(b)(2)(A)-(C).

The Second Circuit has held that Rule 35 motions are akin to those brought under § 5K1.1 of the United States Sentencing Guidelines, and should therefore be construed similarly. See United States v. Gangi, 45 F.3d 28, 31 (2d Cir. 1995) ("We are persuaded that, due to similarity in language and function, § 5K1.1 should inform our construction of Rule 35(b)."); see also United States v. Suarzo, No. 96 CR 450, 2000 WL 1558737, at *2 (S.D.N.Y. Oct. 18, 2000). Both motions are premised on a defendant's substantial assistance to the Government; the only practical difference is that Rule 35 rewards postsentencing assistance, while § 5K1.1 rewards assistance provided before sentencing. See Gangi, 45 F.3d at 30. As such, the following factors are considered in evaluating a Rule 35 motion:

(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's ...

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