United States of America v. Kathy L. Perry

* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 2, 2008 *
Decided April 10, 2008
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐2805
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KATHY L. PERRY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 05‐CR‐101
William C. Griesbach,
Judge.
O R D E R
Kathy Perry pleaded guilty to conspiracy to distribute crack cocaine. See 21 U.S.C.
§§ 846, 841(a)(1). In December 2005 she was sentenced to 10 years’ imprisonment, the
statutory minimum since the offense involved at least five grams. See id. § 841(b)(1)(B)(iii).
At sentencing the prosecutor told the district court that Perry had provided information
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐2805 Page 2
about a fugitive coconspirator, and that the government anticipated filing a post‐sentence
motion for a reduced sentence if he was arrested and prosecuted. See FED. R. CRIM . P. 35(b).
The government never filed a Rule 35(b) motion, so Perry, by then pro se, filed one herself
more than a year after sentencing. The district court denied Perry’s motion because she
received the statutory minimum, the government had not moved to reduce that term, and it
was too late—so the court thought—for the government to file a motion under Rule 35(b).
Perry appeals.
Rule 35(b) authorizes a district court to reduce a sentence for substantial assistance
only “upon the government’s motion.” FED. R. CRIM . P. 35(b)(1); see Wade v. United States,
504 U.S. 181, 185‐86 (1992). The government must act within a year of sentencing unless the
defendant’s information was not known or did not become useful until later. FED. R. CRIM .
P. 35(b)(2). Here, the government has yet to file a Rule 35(b) motion for Perry’s substantial
assistance. And Perry did not allege any breach of promise, unconstitutional motive, or bad
faith on the government’s part. See Wade, 504 U.S. at 185‐87; United States v. Wilson, 390 F.3d
1003, 1011‐13 (7th Cir. 2004). The district court in this case thus had no choice but to deny
Perry’s motion.
AFFIRMED.

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