United States of America v. Edward Michael Phillips, aka Mikey

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD MICHAEL PHILLIPS, aka
Mikey,
Defendant - Appellant.
No. 14-10487
D.C. No. 1:11-cr-00581-LEK-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 12, 2016
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Defendant Edward Michael Phillips appeals the district court’s denial of his
motion to compel the government to file a motion for further sentencing reduction
under Federal Rule of Criminal Procedure 35(b). We affirm.
FILED
FEB 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Having reviewed the entire record, we conclude that the government’s
amended sentencing motion was intended to replace its original sentencing motion
entirely. Accordingly, any statements in the original motion do not bind the
government, even if the statements were otherwise binding. It is clear from the
face of the amended motion that the government did not act in bad faith, arbitrarily,
or for an impermissible reason. Wade v. United States, 504 U.S. 181, 185–87
(1992); United States v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995). It was rational
for the government to conclude that Defendant is not entitled to a further
sentencing reduction; in the interim, the government learned that Defendant had
stolen drugs while a cooperating informant.
AFFIRMED.
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