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United States v. Binns

United States District Court, D. Nevada

October 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRYAN BINNS, Defendant.

          ORDER

          Lloyd D. George, United States District Judge

         Before the Court are the government's motion (ECF No. 254) and amended motion (ECF No. 265) to reduce the sentence of Bryan Binns pursuant to Fed. R. Crim. Pro. 35(b).

         In June 2015, the government and the defendant entered into a stipulation to reduce the defendant's sentence from a term of incarceration of 235 months to a term of 188 months. The parties indicated that the stipulation was to give effect to a retroactive change to the sentencing guideline underlying the Court's calculation of the defendant's advisory guideline sentencing range. The Court re-sentenced the defendant pursuant to the parties' stipulation, and re-sentenced the defendant to a term of 188 months' incarceration.

         The United States then filed its original Rule 35(b) motion (ECF No. 254), asking that the Court reduce the defendant's sentence from a term of incarceration of 235 months to a term of 188 months, to reflect substantial assistance provided by the defendant's wife. In its amended motion, the assistant United States Attorney asserts that, at the time she filed the original motion, she was unaware that defendant had already entered into a sentence-reduction stipulation with the appellate section of the United States Attorney's Office. She was also unaware that the Court had already re-sentenced the defendant to a term of 188 months. As such, through its amended motion (ECF No. 265) the government clarified that it sought a further reduction of the defendant's sentence from 188 months to 151 months.

         In seeking a Rule 35(b) reduction of the defendant's sentence, the government noted that, following the defendant's sentencing in April 2012, his wife-Bebsy Pulido-contacted the Drug Enforcement Administration to indicate a willingness to assist the DEA in exchange for a possible reduction of sentence for the defendant. In April 2015, the defendant's wife provided information to the DEA regarding a methamphetamine supplier in Los Angeles. The defendant's wife acted as a confidential informant. Ultimately, agents of the DEA were able to recover four pounds of methamphetamine and to arrest one person.

         The defendant's response to the motion largely echoed the facts recited by the government, though the defendant indicated that Bebsy Pulido is his fiancee, and that she met with a DEA agent in March 2015.

         The government did not specify the specific provision of Rule 35 pursuant to which it brought its motion. The defendant suggested that the motion was brought pursuant to Rule 35(b)(2)(B).

         While the parties agreed that a reduction of the defendant's sentence would be appropriate under Rule 35(b), the parties' papers were insufficient to establish that it would be appropriate for the Court to grant the requested relief. Rule 35(b)(2) permits the court to grant a sentence reduction if the defendant's substantial assistance involved (a) information not known to the defendant until after one year after the sentencing, (b) information known and disclosed by the defendant within one year after the sentencing, or (c) information known to the defendant within one year and disclosed after one year after the sentencing if the defendant did not anticipate the usefulness of the information within the one-year period. In short, the language of Rule 35(b) permits the court to reduce a defendant's sentence for the defendant's substantial assistance in investigating or prosecuting another person. Neither the government's motion nor the defendant's response, however, recited any assistance provided by the defendant. Rather, the motion and response were limited to facts indicating that a person other than the defendant provided assistance to the government, in an effort to obtain a reduced sentence for the defendant. Further, neither the government nor the defendant provided any argument or citation to authority suggesting that the Court may, in the context of Rule 35(b), attribute the substantial assistance of a defendant's surrogate to a defendant in the absence of any participation in the assistance by the defendant. Accordingly, the Court provided the parties an opportunity to submit supplemental briefs addressing the Court's concerns.

         The Court further requested that government specifically identify the provision of Rule 35(b)(2) pursuant to which it had brought its motion.

         The parties have filed their supplemental briefs.

         The government has clarified that it seeks a reduction pursuant to Rule 35(b)(2)(A), which permits a Rule 35 motion to be brought more than one year after the original sentencing date if the information was not known to the defendant until a year or more after the original sentencing.

         The government has provided additional facts establishing the defendant's assistance, and his participation in the assistance Pulido provided, to the government. In 2015, as the defendant was incarcerated, he talked to other inmates. The defendant told other inmates that his wife needed money. One inmate told the defendant that if his wife called a “guy” he knew, the guy might be able to help her out if she was willing to pick-up narcotics and transport the narcotics to another location.

         The defendant called the Drug Enforcement Administration (DEA) and asked if his wife was willing to do this on his behalf could he get the credit for it. The DEA responded affirmatively. Pulido then contacted the DEA and she was instructed by the DEA to call the number the defendant had given her. Pulido made numerous phone calls and physically met with the supplier of methamphetamine in Los Angeles, California. Pulido provided valuable information regarding her discussions with the supplier. Additionally, the DEA was able to establish GPS pinging information which enabled surveillance to gather valuable intelligence of where the narcotics were stored prior to Pulido meeting with the supplier. Agents were able to arrest one person and recover four pounds of methamphetamine.

         The government has not directed the Court's attention to any relevant binding precedent from the Ninth Circuit regarding whether the Court may, in the context of Rule 35(b), attribute the substantial assistance of a defendant's surrogate to a defendant who has played some role in initiating that assistance. However, the government cites to the persuasive authority of United States v. Doe, 8 ...


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