United States District Court, D. Nevada
D. George, United States District Judge
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).
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'
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.
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.
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.
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
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 further requested that government specifically identify
the provision of Rule 35(b)(2) pursuant to which it had
brought its motion.
parties have filed their supplemental briefs.
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.
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.
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.
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,