53 F.

3d 643
63 USLW 2787

UNITED STATES of America, Plaintiff-Appellee,

v.
Joseph Ben SPEED, Jr., Defendant-Appellant.
No. 94-5221.

United States Court of Appeals,

Fourth Circuit.
Argued Feb. 3, 1995.
Decided May 15, 1995.

Ellis, District Judge, sitting by designation, issued opinion concurring in

part and concurring in result.
ARGUED: Jack Benjamin Crawley, Jr., Raleigh, NC, for appellant. John
Eric Evenson, II, Asst. U.S. Atty., Raleigh, NC, for appellee. ON BRIEF:
Janice McKenzie Cole, U.S. Atty., Raleigh, NC, for appellee.
Before WILKINS and WILLIAMS, Circuit Judges, and ELLIS, United
States District Judge for the Eastern District of Virginia, sitting by
designation.
Affirmed in part and dismissed in part by published opinion. Judge
WILLIAMS wrote the majority opinion, in which Judge WILKINS
joined. Judge ELLIS wrote a separate opinion concurring in part and
concurring in the result.
OPINION
WILLIAMS, Circuit Judge:

Joseph Ben Speed, Jr., appeals the sentence imposed by the district court
following his conviction for conspiracy to possess with intent to distribute
cocaine in violation of 21 U.S.C.A. Sec. 846 (West Supp.1994). Specifically,
Speed maintains that the district court committed reversible error in denying his
motion to continue sentencing pending a determination by the Government

whether, due to Speed's substantial assistance, it would move for a downward

departure under the Sentencing Guidelines, pursuant to U.S.S.G.1 Sec. 5K1.1.
Furthermore, in a related argument, Speed maintains that the district court
sentenced him in violation of the law because it did not fully take into
consideration Speed's assistance to the Government. For the reasons that
follow, we affirm the district court's denial of Speed's motion for continuance
of sentencing and dismiss the appeal to the extent that Speed argues the district
court imposed his sentence in violation of the law.
I.
2

On September 21, 1993, a grand jury in the Eastern District of North Carolina
returned an indictment against Speed, Patrick Sidney, Larry Hobgood, and
Colonel Hunt, charging the four with conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846. On November
22, 1993, Speed pled guilty to the conspiracy charge pursuant to a negotiated
plea agreement.

On March 8, 1994, the district court held a sentencing hearing for Speed. At
that hearing, the district court considered a motion from Speed to continue the
sentencing until the Government determined whether it would file a motion for
downward departure for substantial assistance, pursuant to U.S.S.G. Sec.
5K1.1, based on information Speed provided to help the Government in other
criminal investigations. After taking argument, the district court denied the
motion for a continuance and sentenced Speed to 115 months imprisonment,
the high end of the applicable Sentencing Guideline range. Speed appeals from
the sentence he received pursuant to a provision in his plea agreement that
provided a right of appeal if the sentence imposed was greater than 63 months.

II.
A.
4

Speed's primary argument on appeal is that the district court committed

reversible error in denying his motion for a continuance of the sentencing
hearing. A district court's decision to grant or deny a motion for continuance is
reviewed for an abuse of discretion. United States v. Attar, 38 F.3d 727, 735
(4th Cir.1994) (citing Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616,
75 L.Ed.2d 610 (1983)). Because a district court has broad discretion in
scheduling the sentencing proceeding, "[a]bsent a showing both that the denial
was arbitrary and that it substantially impaired the defendant's opportunity to
secure a fair sentence, we will not vacate a sentence because a continuance was

denied." United States v. Booth, 996 F.2d 1395, 1397-98 (2d Cir.1993)
(quoting United States v. Prescott, 920 F.2d 139, 146-47 (2d Cir.1990)). In
reviewing the district court's denial of a motion for continuance in a criminal
proceeding, we remain cognizant of possible Sixth Amendment implications
concerning the ability of counsel for the defendant to provide effective
assistance. United States v. LaRouche, 896 F.2d 815, 822-25 (4th Cir.) (Sixth
Amendment analysis of denial of continuance requires looking at whether
abuse of discretion took place and possible prejudice to defendant), cert. denied,
496 U.S. 927, 110 S.Ct. 2621, 110 L.Ed.2d 642 (1990).
5

In support of his motion for a continuance, Speed argues that the district court
should have delayed his sentencing because the Government interviewed him
concerning his knowledge of other criminal matters and, at the time of
sentencing, had not yet decided whether to call him as a witness in future
criminal cases. According to Speed, the likelihood that the Government would
file a motion for downward departure would increase dramatically if it decided
to call him as a witness at other trials. By continuing the sentencing for an
unspecified amount of time, the district court would provide the Government
and Speed with the proper opportunity to gauge the level of Speed's assistance.

Although in some circumstances delaying a defendant's sentencing might be

advantageous to all parties and would not unacceptably consume scarce judicial
resources, we can find no indication in the record that this is one of those times.
In his motion and at oral argument before the district court, Speed gave no
estimate of the length of his requested continuance or when any possible trials
at which he would testify for the Government would take place. In addition, we
note that the plea agreement explicitly stated that the Government had no duty
to file a motion for downward departure based upon Speed's substantial
assistance, whether at sentencing or at any other point. Without more, Speed
has failed to provide a basis upon which we can find an abuse of discretion on
the part of the district court. See Booth, 996 F.2d at 1397.

Speed also argues that the district court was incorrect in noting that a motion
for reduction of sentence for substantial assistance, filed under Fed.R.Crim.P.
35(b),2 subsequent to sentencing would sufficiently protect his interest. Because
a downward departure granted pursuant to Fed.R.Crim.P. 35(b) can only apply
to substantial assistance that takes place after sentencing, Speed correctly
maintains that his actions before sentencing could not be taken into account as
substantial assistance. United States v. Martin, 25 F.3d 211, 215-16 (4th
Cir.1994) ("Fed.R.Crim.P. 35(b) grants the sentencing judge the authority to
reduce a defendant's sentence only for substantial assistance rendered
subsequent to sentencing") (emphases in original); United States v. Francois,

889 F.2d 1341, 1345 (4th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct.
1822, 108 L.Ed.2d 951 (1990).3 Thus, Speed argues that he would be
unacceptably prejudiced by the denial of the continuance because a Rule 35(b)
motion could not adequately account for his pre-sentencing assistance in this
case. We disagree. If the Government's decision to move for a downward
departure would turn primarily on Speed's future testimony at other criminal
proceedings, as are all the indications in the record, then the district court did
not abuse its discretion in reasoning that a Rule 35(b) motion for downward
departure would be an appropriate method by which to account for Speed's
possible future assistance to the Government.
8

Speed also complains that the Rule 35(b) mechanism is unacceptably

cumbersome because it forces defense attorneys, especially those appointed by
the district court, to monitor continually the defendant's progress towards
rendering substantial assistance. Aside from the fact that we are not in the
position to change the meaning of clear procedural rules such as Rule 35(b) to
correct their potentially cumbersome nature, Speed's argument has no merit in
its application to this case. It is clear from the facts before us that the
Government's decision to file a downward departure for substantial assistance
would turn on Speed's possible future testimony. Therefore, it is not too
onerous a task in a continuing attorney-client relationship for counsel
occasionally to check whether the Government has called Speed as a witness.
Furthermore, there is little question that Speed will have great incentive to keep
his counsel apprised of his status.

Speed also argues that the denial of the motion for continuance was prejudicial
because the Government had promised in the plea agreement that it would
inform the district court of the extent to which Speed had assisted the
Government up to the time of sentencing. The difficulty faced by Speed on this
point, however, is that he has never maintained, either before the district court
or on appeal, that the Government breached the plea agreement with him. See,
generally, United States v. Conner, 930 F.2d 1073, 1076-77 (4th Cir.), cert.
denied, 502 U.S. 958, 112 S.Ct. 420, 116 L.Ed.2d 440 (1991). We decline
Speed's invitation to guess about the possible breach of a plea agreement when
Speed is unwilling to argue that a breach has actually occurred. See United
States v. Robertson, 40 F.3d 1046, 1048 (9th Cir.1994) ("A claim of breach of
the plea agreement ... is the sort of claim which a defendant ordinarily will
recognize immediately and should be required to raise when the alleged breach
can still be repaired.").

10

Accordingly, without any compelling reason for delaying the proceedings, the
district court did not abuse its discretion in denying the motion for a

continuance.
B.
11

Speed makes an additional argument that turns in large part upon the argument
we have rejected concerning the motion for a continuance: that the district
court sentenced him in violation of the law because, but for the district court's
failure to grant the motion for continuance, it would not have exercised its
discretion to sentence him at the high end of the Sentencing Guidelines based
upon the offense committed and his criminal history.4 Speed points out, once
again, that in his plea agreement the Government promised to apprise the
district court as to the full extent of Speed's cooperation at sentencing.
According to Speed, the sentence imposed by the district court violated the law
because the Government did not summarize the full extent of aid offered by
Speed up until that point.

12

Speed's argument concerning the failure to grant the motion for a continuance
fairs no better when repackaged as a violation of the law by the district court
under 18 U.S.C. Sec. 3742(a)(1). When an adjudged sentence falls within a
properly calculated guideline range, appellate review is not permitted. United
States v. Porter, 909 F.2d 789, 794 (4th Cir.1990). At sentencing, the district
court reasoned that Speed's lengthy criminal record warranted a sentence at the
high end of the applicable guidelines range. Absent evidence that the
Government breached the plea agreement, this Court will not review a sentence
imposed within the correct guideline range. We therefore affirm this portion of
Speed's appeal. 18 U.S.C. Sec. 3742(f)(3).

III.
13

For the reasons stated, we affirm the opinion of the district court.

14

AFFIRMED IN PART AND DISMISSED IN PART.

15

ELLIS, District Judge, concurring in part and concurring in the result:

16

While I concur completely with the result reached and the essential reasoning
of Judge Williams' thorough and insightful opinion, I write separately only to
note one small portion of the opinion with which I disagree. Specifically, I do
not agree with that portion of the majority opinion stating that Speed's "actions
before sentencing could not be taken into account as substantial assistance" in
ruling on a motion pursuant to Rule 35(b), Fed.R.Crim.P. Although Fourth

Circuit precedent can be read to support, if not mandate, this view, see United
States v. Martin, 25 F.3d 211, 215-16 (4th Cir.1994), and United States v.
Francois, 889 F.2d 1341, 1345 (4th Cir.1989), I believe this is not a practical,
fair, or compelled interpretation of the Rule.
17

As a practical matter, a defendant's cooperation often does not easily separate

out into distinct and independent acts of assistance. Typically, cooperation is
best viewed not as isolated instances of conduct divided along a time line, but
rather as an overall, continuous course of conduct in which each instance builds
upon the previous instances of cooperation. Accurate assessment of a
defendant's cooperation requires examining the complete course of conduct.
Given this, it generally makes no sense, for example, to consider a defendant's
post-sentencing testimony against a co-conspirator in a vacuum, ignoring the
nature and extent of information provided earlier that led to the co-conspirator's
arrest.

18

A rigid line of demarcation between pre-sentencing and post-sentencing

conduct also raises problems of fairness to a cooperating defendant. Because
courts must consider the "significance and usefulness"1 of a defendant's
assistance in determining the appropriate sentence reduction, excluding presentence cooperation from a court's consideration under Rule 35(b) is unjust
and places unwarranted significance on the arbitrary date of sentencing. It also
may create inappropriate incentives. For example, a defendant eager for a
sentence reduction may well withhold all of his information until after
sentencing in order to ensure that he enjoys the full benefit of his cooperation.
Alternatively, sentencing judges may be encouraged to grant lengthy
continuance motions in order not to prejudice a defendant whose assistance
prior to sentencing has not yet risen to the "substantial" level.2 Lengthy delays
in sentencing may lead to a regrettable and unwelcome appearance of judicial
participation in coercing additional information from a defendant.3 Yet, without
such continuances, a defendant could find himself in the hapless position of
having provided less than substantial assistance both before and after
sentencing, despite an overall record of cooperation that crosses the "substantial
assistance" threshold.

19

Nor is the rigid temporal division of cooperation in the majority opinion

compelled by the Rule's language. Although Rule 35(b), Fed.R.Crim.P., states
that the court "may reduce a sentence to reflect a defendant's subsequent,
substantial assistance," (emphasis added), nothing in the Rule precludes courts
from also taking into account prior assistance that, when added to subsequent
assistance, amounts to "substantial assistance". In short, while some amount of
post-sentencing assistance is required to trigger the possibility of a Rule 35(b)

reduction, once triggered, the sentencing judge should be free to consider the
full range and extent of a defendant's cooperation, including the cooperation
rendered prior to sentencing.
20

Similarly, I am not convinced that the Fourth Circuit precedent cited in the
majority opinion controls this narrow issue. Francois is certainly not
controlling, for that case involved a defendant's challenge to the
constitutionality of Rule 35(b) on the ground that the government maintained
too much discretion over whether to bring the motion. 889 F.2d at 1345. In
rejecting this claim, the Fourth Circuit panel simply noted in dicta that "Rule
35(b) provides for 'subsequent, substantial assistance,' which is assistance that
has occurred within one year after the imposition of sentence." Id. (emphasis in
original). This broad observation, without more, does not compel the view
expressed in the majority opinion to the effect that district courts, in ruling on
Rule 35(b) motions, may not consider assistance rendered prior to sentencing.

21

Although Martin is more troublesome, it too is distinguishable. In Martin, the

government brought a motion under Rule 35(b) in an attempt to reward a
defendant whose assistance before sentencing had been substantial, but who
was unable to provide any additional assistance after sentencing. 25 F.3d at
215. On these facts, the panel concluded that Rule 35(b) "grants the sentencing
judge the authority to reduce a defendant's sentence only for substantial
assistance rendered subsequent to sentencing." Id. (emphasis in original). This
conclusion is understandable in light of the factual issue presented there. As
noted, I agree that a threshold requirement of Rule 35(b) is that there be at least
some post-sentencing assistance, a condition absent in Martin.4 But neither
Martin nor Francois is controlling on the precise issue here, namely, whether a
district court confronted with a Rule 35(b) motion that is supported by some
post-sentencing assistance is precluded from also considering in its ruling
cooperation that occurred prior to sentencing.

22

It is also worth noting in this regard that the First Circuit has explicitly
recognized that a court may consider the full extent of a defendant's assistance
in ruling on a Rule 35(b) motion. United States v. Drown, 942 F.2d 55 (1st
Cir.1991). Confronted with the question whether, at sentencing, the
government may postpone its decision to bring a substantial assistance motion
until the defendant's cooperation is complete, the court in Drown acknowledged
that U.S.S.G. Sec. 5K1.1 and Rule 35(b) contain distinct "temporal
boundaries." Id. at 59 (stating that Sec. 5K1.1 "was designed to recognize, and
in an appropriate case to reward, assistance rendered prior to sentencing," while
Rule 35(b) "was designed to recognize and reward subsequent cooperation")
(emphasis in original). Therefore, the First Circuit in Drown concluded, as did

this circuit in Martin, that the government may not make "a unilateral decision
... to reserve judgment on a defendant's presentence assistance in order to secure
his post-sentence assistance." Id. Having reached this conclusion, however, the
court in Drown nevertheless was careful to add in a footnote, "[t]his is not to
say that, on a Rule 35(b) motion for sentence reduction, the court may not assay
the totality of a defendant's cooperation." Id. at 59 n. 7. Thus, while cognizant
and respectful of the distinct functions and timing of the two substantial
assistance provisions, the First Circuit panel made clear its view, albeit in dicta,
that the temporal division is not so rigid as to preclude a district court from
considering the entire record of a defendant's assistance on a Rule 35(b)
motion. This sound conclusion, as noted earlier, is wholly consistent with the
Rule's purpose and not in conflict with its language.
23

In the event that the Fourth Circuit squarely addresses this issue in the future
and holds that the Rule's language precludes district courts from considering
pre-sentencing assistance in ruling on Rule 35(b) motions, then the Rule's
language should be changed to alter this result.

United States Sentencing Commission, Guidelines Manual (Nov.1993)

Rule 35(b) states, in relevant part:

(b) Reduction of Sentence for Changed Circumstances. The court, on motion of
the Government made within one year after the imposition of the sentence, may
reduce a sentence to reflect a defendant's subsequent, substantial assistance in
the investigation or prosecution of another person who has committed an
offense, in accordance with the guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of title 28, United States Code.
The court may consider a government motion to reduce a sentence made one
year or more after imposition of the sentence where the defendant's substantial
assistance involves information or evidence not known by the defendant until
one year or more after imposition of sentence. The court's authority to reduce a
sentence under this subsection includes the authority to reduce such sentence to
a level below that established by statute as a minimum sentence.

Judge Ellis raises some noteworthy concerns in his concurrence as to our

holding that pre-sentencing assistance may not be taken into account in a Rule
35(b) motion. While we might find Judge Ellis's reasoning more persuasive if
we were writing on a clean slate, we feel bound by our precedent as established
in Martin and Francois. Unless or until that precedent is altered by en banc
review or by revision of Rule 35(b), as Judge Ellis suggests at the end of his

concurrence, we must follow that precedent

Additionally, we note our disinclination to agree with Judge Ellis's reliance on
United States v. Drown, 942 F.2d 55 (1st Cir.1991), for the proposition that
"the First Circuit has explicitly recognized that a court may consider the full
extent of a defendant's assistance in ruling on a Rule 35(b) motion." A review
of Drown reveals that the First Circuit was confronted with the same issue as
this Court in Martin: whether the government may predicate its decision to
defer a U.S.S.G. Sec. 5K1.1 motion on the fact that it will make a Rule 35(b)
motion after sentencing? Both courts answered this question in the negative.
However, to the extent that the Drown court took the position in a footnote that
a sentencing court could take pre-sentencing assistance into account on a Rule
35(b) motion, the holding is not a model of clarity. Drown, 942 F.2d at 59 n. 7
The footnote not only lacks any citation to cases or Rule 35(b) to support its
position, but also appears to have been dictum. Accordingly, after considering
the footnote in Drown, we remain constrained by our precedent.
4

The district court calculated a total offense level of 23 and a criminal history
category of VI. Accordingly, the guideline range applicable to Speed at
sentencing was 92 to 115 months. See United States Sentencing Commission,
Guidelines Manual, Ch. 5 Pt. A (Nov.1993). The district court sentenced Speed
to 115 months imprisonment

See U.S.S.G. Sec. 5K1.1(a)(1); see also Fed.R.Crim.P. 35(b) (directing courts
to reduce a sentence "in accordance with the guidelines and policy statements
issued by the Sentencing Commission pursuant to [28 U.S.C. Sec. 994]")

I am personally aware of several such instances, including one in which the

sentencing date has been postponed for almost three years

For instance, juries may understandably view with skepticism testimony from a
cooperating defendant in a co-defendant's trial when they learn that the
testifying defendant's sentencing awaits the completion of his testimony

Furthermore, I agree with the conclusion in Martin that the government may
not defer its decision whether to bring a Sec. 5K1.1 motion on behalf of a
defendant whose assistance as of sentencing has been substantial. 25 F.3d at
216. In that event, it is plainly a violation of due process to delay a decision on
a substantial decision motion until after sentencing. Id. (Although the Martin
panel went on to find that the government had modified the plea agreement to
require it to bring a substantial assistance motion, id. at 217, that finding was
not a prerequisite to the court's conclusion that a due process violation had
occurred. Id. at 216). Provisions in plea agreements that require a defendant's
assistance to be both substantial and complete before the government will bring

such a motion therefore may run afoul of Martin in those instances where a
defendant's cooperation, though not yet complete, has already crossed the
Rule's "substantial" threshold. Of course, some unfairness may result even
there in that the extent of the court's departure at the Sec. 5K1.1 stage would
not reflect the defendant's future cooperation
Here, however, I speak only of those instances where a defendant's presentencing assistance, though significant, is not yet "substantial." In those
circumstances, it seems altogether unjust and somewhat arbitrary to omit the
pre-sentencing assistance from a court's consideration during subsequent Rule
35(b) proceedings.