United States of America v.  LYNELL LYNNIE TAYLOR, a/k/a Scoop, a/k/a Lynnie Lynell Taylor

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4104 
LYNELL LYNNIE TAYLOR, a/k/a Scoop,
a/k/a Lynnie Lynell Taylor,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca Beach Smith, District Judge.
(CR-00-16)
Argued: May 24, 2005
Decided: July 11, 2005
Before WIDENER and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Widener and Judge Motz joined.
COUNSEL
ARGUED: Charles Michael Henter, Charlottesville, Virginia, for
Appellant. Michael James Elston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Paul J. McNulty, United States
Attorney, Alexandria, Virginia, Scott W. Putney, Assistant United
States Attorney, Newport News, Virginia, for Appellee.

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OPINION
HAMILTON, Senior Circuit Judge:
On appeal, Lynell Lynnie Taylor (Taylor) claims, inter alia, that he
had a Sixth Amendment right to effective assistance of counsel in
connection with the government’s post-conviction, post-direct appeal
motion to reduce his sentence pursuant to Federal Rule of Criminal
Procedure 35(b), and that such right was violated when the district
court ruled on the government’s Rule 35(b) motion without him hav-
ing the benefit of counsel. Taylor’s claim raises the following issue
of first impression in our circuit: Does a criminal defendant have a
federal constitutional right to effective assistance of counsel with
regard to a post-conviction, post-direct appeal motion for reduction of
sentence made by the government pursuant to Federal Rule of Crimi-
nal Procedure 35(b)? We answer this question in the negative. We
also find no merit to Taylor’s remaining assignments of error.
Accordingly, we affirm.
I.
On March 27, 2000, a federal grand jury in the Eastern District of
Virginia indicted Taylor in a multi-count, multi-defendant indictment.
Count One charged Taylor and other named defendants with conspir-
acy to intentionally and knowingly possess with the intent to distrib-
ute and to distribute fifty grams or more of cocaine base (crack) in
violation of 21 U.S.C. § 846. As part of the overt acts listed in Count
One, the indictment charged that "[i]n or about July 1998, at Burnt
Ordinary Apartments, James City County, in the Eastern District of
Virginia, LYNELL LYNNIE TAYLOR, while armed with a .9mm
semi-automatic pistol, distributed quantities of ‘crack’ cocaine." (J.A.
31). The indictment charged Taylor in seven other counts regarding
individual instances of crack dealing in violation of 21 U.S.C.
§ 841(a)(1).
On June 7, 2000, Taylor pled guilty to Count One, the conspiracy
count, in exchange for the government’s oral promise to drop the
remaining counts.1 Taylor expressly acknowledged at his guilty plea
1The parties did not memorialize their plea deal in a written plea agree-
ment. Nonetheless, the government, as agreed, subsequently moved to
dismiss the remaining counts against Taylor. The district court granted
the motion.
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hearing that the only promise the government made in return for his
guilty plea on Count One was to drop the remaining counts.
The presentence report (PSR) calculated Taylor’s total offense
level under the United States Sentencing Guidelines at thirty-six (base
offense level of thirty-six based upon drug quantity, plus two levels
for possession of a dangerous weapon, minus two levels for accep-
tance of responsibility) and his criminal history category at III, pro-
ducing a sentencing range of 235 to 293 months’ imprisonment. On
October 30, 2000, the district court sentenced Taylor to 235 months’
imprisonment. At that time, Taylor did not attempt to challenge his
conviction or sentence on direct appeal.
Just less than one year after the district court sentenced Taylor, on
October 15, 2001, the government moved to reduce Taylor’s sentence
pursuant to Federal Rule of Criminal Procedure 35(b)(1) (the govern-
ment’s Rule 35(b) Motion).2 The government’s Rule 35(b) Motion
sought to reduce Taylor’s sentence based upon his substantial assis-
tance to the government in investigating drug trafficking in the east-
ern Virginia area, but requested the district court to hold the motion
"in abeyance until all of Mr. Taylor’s cooperation is complete, after
which the United States will file a supplement advising the court of
the remainder of his cooperation." (J.A. 137). Attached to the govern-
ment’s Rule 35(b) Motion was a certificate of service providing that
a copy of the motion was mailed to Taylor’s attorney, J. Ashton
Wray, Jr., at "10-B W. Queens Way, P. O. Box 547, Hampton, VA
23669, and to U.S. Probation Officer Teresa R. Hutcheson, Room
300, Post Office Bldg., 101 W. 25th, Newport News, VA 23607."
(J.A. at 138).
2Federal Rule of Criminal Procedure 35(b)(1) provides:
Upon the government’s motion made within one year of sentenc-
ing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial
assistance in investigating or prosecuting another person;
and
(B) reducing the sentence accords with the Sentencing Com-
mission’s guidelines and policy statements.
Fed. R. Crim. P. 35(b)(1).
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On October 17, 2001, the district court entered an order taking the
government’s Rule 35(b) Motion under advisement for six months "to
permit defendant’s complete cooperation with the government." (J.A.
139). The order directed the Clerk of Court to send a copy of it to
Taylor, Taylor’s counsel, and the government.
On April 30, 2002, the government filed its "SUPPLEMENT TO
MOTION FOR SENTENCE REDUCTION BASED UPON SUB-
STANTIAL ASSISTANCE" with a certificate of service providing
that a copy was mailed to the same parties at the same addresses as
the government’s Rule 35(b) Motion filed on October 15, 2001. On
May 17, 2002, the district court granted the government’s Rule 35(b)
Motion, reducing Taylor’s sentence by forty-percent to 141 months’
imprisonment. The district court effectuated its granting of the gov-
ernment’s Rule 35(b) Motion by entering a written order (the May 17,
2002 Order) providing as follows: "The court GRANTS the motion[ ]
and ORDERS the sentence of Lynell Lynnie Taylor as to Count 1
reduced from two hundred thirty-five (235) months imprisonment to
one hundred forty-one (141) months imprisonment. In all other
respects, the sentence as originally imposed on October 30, 2000,
remains the same." (J.A. 143). Docket entry number thirty-eight on
the district court’s docket sheet describes the May 17, 2002 Order as
"AMENDED JUDGMENT ORDER: Lynell Lynnie Taylor (4) coun-
t(s) 1: 141 MONTHS IMPRISONMENT. IN ALL OTHER
RESPECTS, THE SENTENCE AS ORIGINALLY IMPOSED ON
10/30/00 REMAINS THE SAME." (J.A. 9). One of Taylor’s com-
plaints in the present appeal is that the district court ruled upon the
government’s Rule 35(b) Motion without giving him notice and an
opportunity to be heard on the motion.
On August 7, 2002, Taylor filed an untimely pro se notice of
appeal in which he sought to challenge the district court’s
forty-percent reduction in his sentence as insufficient. In his handwrit-
ten notice of appeal, Taylor explained that he was unhappy with his
new 141-month sentence for two reasons: (1) his lawyer had previ-
ously told him that his sentence would be reduced to at least 120
months’ imprisonment; and (2) there were "a number of things that
were not mentioned that was suppose to be mentioned." (J.A. 144).
Taylor also explained that one of his "main reasons" for appealing
was that his attorney was incarcerated at the time the district court
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considered the government’s Rule 35(b) Motion. Id. After appointing
counsel to represent Taylor on appeal, on January 13, 2003, we dis-
missed his appeal as untimely.
Taylor subsequently filed a § 2255 motion (Taylor’s § 2255
Motion), see 28 U.S.C. § 2255, attacking his new sentence on two
grounds. First, Taylor claimed that he was denied effective assistance
of counsel in regard to the government’s Rule 35(b) Motion. Second,
Taylor claimed that he was unable to note a timely appeal from resen-
tencing pursuant to the government’s Rule 35(b) Motion because his
attorney was unavailable due to counsel’s incarceration.
On March 7, 2003, the district court dismissed Taylor’s § 2255
Motion for several reasons. First, the district court reasoned that
because it did not conduct a hearing on the government’s Rule 35(b)
Motion nor request any response to the motion, Taylor’s counsel
missed no opportunity to appear or respond. Second, citing United
States v. Pridgen, 64 F.3d 147 (4th Cir. 1995), the district court held
that even a timely appeal would have been fruitless because reduc-
tions of sentences and/or denials of motions for reductions of sen-
tences pursuant to Rule 35(b) are not appealable. Finally, the district
court pointed out that Taylor had been appointed counsel for purposes
of his appeal from the district court’s resentencing.
Taylor timely appealed the district court’s dismissal of his § 2255
Motion. We subsequently granted Taylor a certificate of appealablity
and issued an unpublished opinion, United States v. Taylor (Taylor I),
2003 WL 22795213 (4th Cir. Nov. 24, 2003), in which we vacated
the district court’s dismissal of Taylor’s § 2255 Motion and remanded
the case to the district court for reconsideration in light of United
States v. Peak, 992 F.2d 39 (4th Cir. 1993) and Roe v. Flores-Ortega,
528 U.S. 470, 478-80 (2000). In Taylor I, we explained:
In Peak, this court held that counsel’s failure to pursue an
appeal requested by a defendant constitutes ineffective
assistance of counsel regardless of the likelihood of success
on the merits. Id. at 42. Moreover, even if a defendant does
not specifically instruct counsel to file an appeal, counsel
may still have a duty to consult with his client about an
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appeal. Roe v. Flores-Ortega, 528 U.S. 470, 478-80, 120 S.
Ct. 1029, 145 L.Ed.2d 985 (2000).
Taylor I, 2003 WL 22795213.
On remand, the district court granted Taylor relief on his § 2255
Motion. Specifically, the district court reinstated Taylor’s "right of
appeal" with respect to the district court’s resentencing of him pursu-
ant to the government’s Rule 35(b) Motion. (District Court Order
filed January 22, 2004).3 The district court effectuated such reinstate-
ment by vacating Taylor’s judgment of conviction and immediately
reentering it without change. The joint appendix contains a copy of
the judgment of conviction with the October 30, 2000 "FILED" date
crossed through, a date of "1/22/04" handwritten just below the
crossed-through date, and the change initialed. (J.A. 158). Just below
the handwritten change, the following typed notation appears: "SEE
ORDER OF 1/22/04 VACATING and RE-ENTERING THIS JUDG-
MENT ON 1/22/04." (J.A. 158).
Taylor filed a timely notice of appeal from the reentered judgment
of conviction. Taylor is represented in this appeal by appointed coun-
sel.
In the present appeal, Taylor asserts several assignments of error.
He claims that the district court violated his Fifth Amendment Due
Process rights by ruling on the government’s Rule 35(b) Motion with-
out providing him notice of the motion and an opportunity to respond.
Interestingly, he qualifies this claim by stating that "[it] is unclear
whether [he] or his attorney received notice of the government’s
[Rule 35(b) Motion]." (Taylor’s Br. at 32). Taylor also claims that he
had a Sixth Amendment right to effective assistance of counsel in
connection with the government’s Rule 35(b) Motion, which right
was denied due to his counsel’s incarceration. Finally, he asserts a
Booker claim, see United States v. Booker, 125 S. Ct. 738 (2005),
with respect to the district court’s reliance upon facts not found by a
jury in initially sentencing him on October 30, 2000.
3For reasons neither party has sufficiently explained, neither party saw
fit to include the district court’s written order on remand in the joint
appendix. We obtained our own copy from the district court.
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II.
As a threshold matter, we need to address the parties’ confusion
regarding the nature of the judgment vacated and reentered by the dis-
trict court on January 22, 2004. The parties are concerned that the
reentered judgment actually reinstates Taylor’s original 235-month
sentence. If such is the case, the government requests that we vacate
such judgment and let the 141-month sentence stand. Taylor would
also request that we vacate such judgment, but would urge us to
vacate the district court’s order granting the government’s Rule 35(b)
Motion and remand the case to allow for his full participation in the
district court’s proceedings on the government’s Rule 35(b) Motion
with the benefit of effective assistance of counsel.
The parties’ confusion squarely raises the question of whether the
judgment vacated and reentered by the district court on January 22,
2004 sentences Taylor to 235 months’ imprisonment or 141 months’
imprisonment. In answering this question, we are mindful that "[t]he
intent of the sentencing court must guide any retrospective inquiry
into the term and nature of a sentence." United States v. Taylor, 47
F.3d 508, 511 (2d Cir. 1995) (internal quotation marks and citation
omitted). "Thus, to the extent that there is an ambiguity in the sen-
tence, we properly may consider the sentencing judge’s subjective
intent." Fenner v. United States Parole Comm’n, 251 F.3d 782, 786
(9th Cir. 2001). "As a general rule, [i]n determining the terms of a
sentence, it is the intent of the sentencing judge which controls and
that intent is to be determined by reference to the entire record."
United States v. Bull, 214 F.3d 1275, 1279 (11th Cir. 2000) (internal
quotation marks omitted) (alteration in original).
To be sure, the district court could have been clearer regarding the
precise nature and effect of its resentencing of Taylor pursuant to the
government’s Rule 35(b) Motion and following our remand of Tay-
lor’s § 2255 Motion. Nonetheless, our review of the entire record
leaves us with the firm conviction that the district court amended the
original judgment from 235 months’ imprisonment to 141 months’
imprisonment when it ruled on the merits of the government’s Rule
35(b) Motion, and, therefore, when the district court granted Taylor
relief on his § 2255 Motion by vacating and reentering Taylor’s judg-
ment of conviction, such judgment was the amended version sentenc-
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ing Taylor to 141 months’ imprisonment. The 235-month version of
the judgment no longer existed.
While the district court did not expressly use the phrase "amend
judgment" or "the judgment is amended" in its May 17, 2002 Order
granting the government’s Rule 35(b) Motion and ordering Taylor’s
sentence reduced from 235 months’ imprisonment to 141 months’
imprisonment, all record evidence supports the conclusion that the
district court intended for such order to amend the judgment in this
manner. First, the May 17, 2002 Order was entered on the district
court’s docket sheet as "AMENDED JUDGMENT ORDER: Lynell
Lynnie Taylor (4) count(s) 1: 141 MONTHS IMPRISONMENT. IN
ALL OTHER RESPECTS, THE SENTENCE AS ORIGINALLY
IMPOSED ON 10/30/00 REMAINS THE SAME." (J.A. 9) (emphasis
added). Second, this docket entry existed at the time the district court
granted Taylor relief on his § 2255 Motion.
Third, the relief the district court granted Taylor on his § 2255
Motion (i.e., the reinstatement of Taylor’s right to appeal from the
district court’s final ruling on the government’s Rule 35(b) Motion
"by VACATING his judgment of conviction and REENTERING the
same judgment effective this date") only makes sense if the judgment
of conviction referenced in the district court’s January 22, 2004 Order
sentences Taylor to 141 months’ imprisonment. We have no doubt
that the district court, as we instructed, reconsidered Taylor’s § 2255
Motion on remand in light of Peak and Roe and, based upon such
consideration, determined that Taylor was entitled to remedial relief
under Title 28, United States Code § 2255, which provides, in rele-
vant part:
[i]f the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, the court shall vacate and set the judg-
ment aside and shall discharge the prisoner or resentence
him or grant a new trial or correct the sentence as may
appear appropriate.
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(emphasis added). We have held on more than one occasion that this
bolded language "confers a broad and flexible power to the district
courts to fashion an appropriate remedy." United States v. Hillary,
106 F.3d 1170, 1171 (4th Cir. 1997) (internal quotation marks omit-
ted). Here, the district court’s chosen remedy returned Taylor to the
position he would have been in had the alleged constitutional error of
which he complained (i.e., denial of effective assistance of counsel in
pursuing an appeal from the district court’s amended judgment based
upon the government’s Rule 35(b) Motion) not occurred. Thus, it is
inescapable that the district court simply restarted the appeal clock.
Fourth, the district court judge who granted Taylor’s § 2255
Motion was the same judge who originally sentenced him and granted
the government’s Rule 35(b) Motion. Therefore, such judge was in an
excellent position to interpret the state of the record. See United States
v. O’Brien, 789 F.2d 1344, 1347 n.2. (9th Cir. 1986).
In sum, all probative evidence in the record points to the conclu-
sion that the judgment vacated and reentered by the district court on
January 22, 2004 sentences Taylor to 141 months’ imprisonment.
Accordingly, we hold that the judgment of conviction challenged by
Taylor in the present appeal sentences him to 141 months’ imprison-
ment.
III.
We now turn to Taylor’s Booker claim. See Booker, 125 S. Ct. at
738. According to Taylor, when the district court originally sentenced
him on October 30, 2000 to 235 months’ imprisonment, the district
court violated his Sixth Amendment right to a jury trial in determin-
ing his sentence by relying upon facts not found by a jury or admitted
by him.
Taylor is foreclosed from asserting a Booker claim in the present
appeal because the original judgment of conviction entered on Octo-
ber 30, 2000 is not before us. The only judgment of conviction before
us is the amended judgment reentered by the district court on January
22, 2004, which amended judgment sentences Taylor to 141 months’
imprisonment based upon the government’s Rule 35(b) Motion.
Moreover, the record is undisputed that Taylor did not pursue a direct
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appeal from his original judgment of conviction. Accordingly, his
right to challenge on direct appeal any action or ruling by the district
court in connection with the district court’s sentencing of him on
October 30, 2000 has long since expired.
IV.
We next address Taylor’s claim to a Sixth Amendment right to
effective assistance of counsel with respect to the government’s Rule
35(b) Motion, which right he claims was violated when the district
court ruled on the government’s Rule 35(b) Motion without his hav-
ing the benefit of counsel to represent him in the matter. He also
states the record is insufficient to determine whether he was actually
or constructively denied his alleged Sixth Amendment right to effec-
tive assistance of counsel with respect to the government’s Rule 35(b)
Motion because whether his counsel was actually incarcerated "dur-
ing the relevant time is unknown . . . ." (Taylor’s Br. at 21). Accord-
ingly, he requests that we remand this case for an evidentiary hearing
to determine whether his counsel was in fact incarcerated or otherwise
unavailable to him during the time the district court considered the
government’s Rule 35(b) Motion.
Taylor’s Sixth Amendment right-to-counsel claim is without merit.
The Sixth Amendment provides that "the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence." U.S. CONST.
amend. VI. This language entitles a criminal defendant to effective
assistance of counsel at each critical stage of his prosecution, Kirby
v. Illinois, 406 U.S. 682, 690 (1972), including sentencing, Mempa v.
Rhay, 389 U.S. 128, 134-37 (1967). Moreover, the law is well-settled
that, in order to satisfy federal due process and equal protection guar-
antees, a criminal defendant enjoys the right to effective assistance of
counsel on direct appeal, when such direct appeal is provided as a
matter of right. See Coleman v. Thompson, 501 U.S. 722, 755-56
(1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v.
Moffitt, 417 U.S. 600, 611-615 (1974). Finally, "in some exceptional
cases due process does mandate the appointment of counsel for cer-
tain postconviction proceedings," United States v. Legree, 205 F.3d
724, 730 (4th Cir. 2000), in which fundamental fairness requires the
assistance of a trained advocate. Cf. Gagnon v. Scarpelli, 411 U.S.
778 (1973) (establishing a case-by-case determination for whether
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due process requires appointment of counsel at a probation revocation
proceeding).
Taylor argues that the government’s Rule 35(b) Motion constitutes
a critical stage of his prosecution and, therefore, the Sixth Amend-
ment guarantees him the right to effective assistance of counsel in
responding to the motion. Taylor’s argument initially misses the mark
because a Rule 35(b) motion is not a trial-related proceeding and,
therefore, the Sixth Amendment cannot serve as a source of his
claimed right to counsel. United States v. Palomo, 80 F.3d 138, 142
(5th Cir. 1996); see also United States v. Gouveia, 467 U.S. 180, 188-
89 (1984) (recognizing that "core purpose of the [Sixth Amendment]
counsel guarantee is to assure aid at trial, when the accused is con-
fronted with both the intricacies of the law and the advocacy of the
public prosecutor") (internal citations, quotation marks, and alter-
ations omitted). Rather, the source of any right to effective assistance
of counsel at the post-conviction, post-direct appeal stage must be the
United States Constitution’s equal protection or due process guaran-
tees. Palomo, 80 F.3d at 142.
For reasons we explain as follows, we hold that neither the Consti-
tution’s equal protection guarantees nor due process guarantees pro-
vide criminal defendants a right to effective assistance of counsel with
respect to a motion by the government pursuant to Rule 35(b). The
Supreme Court has squarely rejected suggestions that such guarantees
support a federal constitutional right to counsel on direct discretionary
appeals, Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Ross,
417 U.S. at 610, as opposed to direct appeals provided the criminal
defendant as a matter of right. As the Fifth Circuit has cogently rea-
soned, "[i]f the right to counsel does not attach to discretionary pro-
ceedings challenging the legality of a sentence or conviction, in which
the defendant and the Government are clearly engaged in an adver-
sarial relationship, there appears little to justify holding that a con-
victed inmate has a right to counsel with respect to proceedings
brought by the [g]overnment for the purpose of requesting the sen-
tencing court to reduce that inmate’s sentence as compensation for the
provision of information useful to an ongoing government investiga-
tion or prosecution." Palomo, 80 F.3d at 142. In other words, because
a defendant has no federal constitutional right to counsel when pursu-
ing a discretionary appeal on direct review of his conviction, a forti-
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ori, he has no such right when the government makes a motion which
can only benefit him by reducing his already final sentence.
Moreover, our rejection of Taylor’s right-to-counsel claim in the
present case is compelled by our rejection of the right-to-counsel
claim pressed by the defendant in Legree. In Legree, the federal
defendant appealed from the district court’s denial of his post-
conviction, post-appeal motion brought pursuant to 18 U.S.C.
§ 3582(c)(2), which statutory section permits a district court to reduce
a sentence "in the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has subse-
quently been lowered by the Sentencing Commission," id. at
§ 3582(c)(2). Legree, 205 F.3d at 726.
The defendant in Legree argued on appeal that the district court
denied him federal constitutional due process by not appointing coun-
sel to represent him on his § 3582(c)(2) motion. Legree, 205 F.3d at
729. We rejected this argument on the basis that, because a motion
pursuant to § 3582(c) "is not a do-over of an original sentencing pro-
ceeding where a defendant is cloaked in rights mandated by statutory
law and the Constitution," the defendant’s motion for a reduction of
sentence did not fit into the category of exceptional cases warranting
appointment of counsel in a post-conviction, post-appeal proceeding.
Id. at 730 (internal quotation marks omitted).
For purposes of right-to-counsel analysis, the government’s Rule
35(b) Motion for a reduction in Taylor’s sentence is indistinguishable
from the defendant’s § 3582(c)(2) motion in Legree. Both motions
could only benefit the defendant by reducing his sentence which had
already become final, and neither motion is "a do-over of an original
sentencing proceeding where a defendant is cloaked in rights man-
dated by statutory law and the Constitution." Legree, 205 F.3d at 730
(internal quotation marks omitted). In sum, we hold that Taylor pos-
sessed no federal constitutional right to counsel with respect to the
government’s Rule 35(b) Motion.4 Palomo, 80 F.3d at 142 (no federal
4For the sake of clarity, we recognize that in United States v. Boyce,
352 F.2d 786 (4th Cir. 1965), we held that the absence of defendant’s
counsel at the reduction of his sentence pursuant to Rule 35 did not con-
stitute reversible error. Because the defendant in Boyce did not rely upon
the United States Constitution as the source of his alleged right to coun-
sel in connection with his Rule 35 proceeding, we do not rely upon it
here.
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constitutional right to counsel attaches at Rule 35(b) stage). See also
United States v. Kimberlin, 898 F.2d 1262, 1265 (7th Cir. 1990) (cit-
ing Finley, 481 U.S. at 551, for proposition that "[a]lthough a mistake
in taking a direct appeal from a conviction would be ineffective assis-
tance of counsel, giving the defendant another opportunity to appeal
without need for a formal extension of time from the district court, a
blunder in prosecuting post-conviction motions under Rule 35 does
not authorize a similar deferred appeal, because there is no right to
effective assistance of counsel after the direct appeal"). Accordingly,
even assuming arguendo that Taylor did not have access to effective
assistance of counsel in connection with the government’s Rule 35(b)
Motion, the district court committed no constitutional violation by
ruling on such motion under the existing circumstances.
V.
Taylor next contends that his Fifth Amendment Right to Procedural
Due Process was violated because neither he nor his counsel ever
received notice of the government’s Rule 35(b) Motion, and, there-
fore, he did not have an opportunity to respond at an evidentiary hear-
ing or in writing.5 He asserts, without any detail or citation to the
record, "that he has information detailing his assistance in addition to
that presented by the government . . . ," but that "given the state of
the record, it is unclear what information [he] possesses." (Taylor’s
Br. at 31). As relief, Taylor seeks a reversal of the district court’s final
judgment of conviction and a remand to allow him to present evi-
dence and otherwise comment on the government’s Rule 35(b)
Motion.
While the actual constitutional underpinnings of Taylor’s argu-
ments are less than clear, see United States v. Alvarez, 115 F.3d 839,
841 (11th Cir. 1997) (Fifth Amendment procedural due process guar-
antees do not attach to Rule 35(b) proceedings because: (1) decision
whether to file a Rule 35(b) Motion based upon substantial assistance
lies within the sound discretion of the government; and (2) defendant
faces no new threat of loss of liberty); Palomo, 80 F.3d at 142 (inmate
5Oddly, in another portion of Taylor’s brief, he states that "[i]t is
unclear whether Mr. Taylor or his attorney received notice of the govern-
ment’s motion to reduce his sentence." (Taylor’s Br. at 32).
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faces no new threat of additional loss of liberty in Rule 35(b) proceed-
ing); but see United States v. Gangi, 45 F.3d 28, 32 (2d Cir. 1995)
(recognizing in dicta that district court’s failure to afford defendant
opportunity to be heard in response to government’s Rule 35(b)
Motion "would raise grave due process issues"), the operative case for
us to resolve Taylor’s request for relief on this issue is United States
v. Pridgen, 64 F.3d 147 (4th Cir. 1995).
Relevant to Taylor’s appeal on this issue, Pridgen stands for the
proposition that if the government does not make the extent of a
defendant’s assistance known to the district court in moving for a
reduction in the defendant’s sentence pursuant to Rule 35(b), the
defendant may be entitled to an evidentiary hearing on the govern-
ment’s motion. Id. at 150. "The decision of the district court to con-
duct an evidentiary hearing [on a Rule 35(b) motion] is a matter left
to the sound discretion of the district court, and we will review that
decision only for an abuse of discretion." Id.
Solely for purposes of analytical discussion, we assume that neither
Taylor nor his counsel received notice of the government’s April 30,
2002 "SUPPLEMENT TO MOTION FOR SENTENCE REDUC-
TION BASED UPON SUBSTANTIAL ASSISTANCE." (J.A. 142).
Thus, we hypothetically excuse Taylor’s failure to request an eviden-
tiary hearing before the district court with respect to the government’s
Rule 35(b) Motion or to offer a written response. The question then
becomes, had Taylor requested an evidentiary hearing with respect to
the government’s Rule 35(b) Motion or offered a written response,
would the district court have abused its discretion in denying an evi-
dentiary hearing or in not receiving a written response? The answer
is no.
Taylor’s appeal on this issue is based upon his own wholly
unfounded speculation that had he been allowed to respond at an evi-
dentiary hearing or in writing to the government’s Rule 35(b) Motion,
he would have received an even further reduction in his already sub-
stantially reduced sentence. The reality is that Taylor has not estab-
lished on appeal that an evidentiary hearing or a written response
from him was necessary for the district court to properly evaluate the
government’s Rule 35(b) Motion. While Taylor summarily asserts in
his brief "that he has information detailing his assistance in addition
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to that presented by the government . . . ," he states in the very next
sentence that "given the state of the record, it is unclear what informa-
tion [he] possesses." (Taylor’s Br. at 31). Not surprisingly then, Tay-
lor’s brief identifies not even one incident of additional assistance that
he provided the government which the government failed to present
in its original Rule 35(b) Motion or in its supplement to that motion.
This is so despite Taylor’s outright ability to compare any additional
assistance he provided the government with the government’s version
of his assistance as set forth in the government’s motion papers con-
tained in the joint appendix on appeal.
Under these circumstances, Taylor falls far short of establishing
that the district court would have abused its discretion in refusing to
conduct an evidentiary hearing had he requested one. Taylor also falls
far short of showing that the district court abused its discretion by rul-
ing on the motion in the absence of a written response from him.
Notably, this is not a case where the government expressly prom-
ised to make a Rule 35(b) Motion in exchange for Taylor’s coopera-
tion with law enforcement but reneged on its promise. See United
States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994) (government’s
commitment to make substantial assistance motion to reward defen-
dant for his presentence substantial assistance was tantamount to and
equivalent of modification of plea agreement, and government’s fail-
ure to comply with plea agreement as modified resulted in deprivation
of defendant’s due process rights and entitled him to specific perfor-
mance of government’s promise to reward him for his presentence
substantial assistance; defendant could not be penalized for govern-
ment’s failure, albeit inadvertent, to timely make substantial assis-
tance motion at sentencing hearing). Nor has Taylor shown that the
government did not fully and fairly present the extent of his assistance
to the government in its Rule 35(b) Motion papers. In short, there is
simply no basis in the record or Taylor’s brief to warrant disturbing
Taylor’s final judgment of conviction sentencing him to 141 months’
imprisonment.
VI.
For the foregoing reasons and based upon the legal authority dis-
cussed and cited herein, we affirm the district court’s judgment
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entered on January 22, 2004, which judgment sentences Taylor to 141
months’ imprisonment.
AFFIRMED
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