Government May Withdraw Rule 35(b) Motion

US v. Hartwell: Hartwell pleaded guilty to an information charging him with "murder-for-hire resulting in death" (as opposed to murder-for-hire that doesn't result in death?). As part of the plea agreement, he agreed to cooperate with the Government in other cases, while the Government agreed not to seek the death penalty and possibly seek reduction of Hartwell's sentence under Rule 35(b). Hartwell entered his plea, was sentenced to life in prison, and filed no appeal.

A year later, the Government filed a "placeholder" 35(b) motion to toll the running of the statue of limitations for sentence reductions. The Government and Hartwell agreed to have the district court delay acting on the motion until cooperation was complete. Hartwell agreed that if he failed to live up to his responsibilities under the plea agreement, the Government could withdraw its motion. A year and a half later, at the urging of the district court, the Government filed a memorandum outlining Hartwell's troubled assistance to date (he admittedly perjured himself) and hopes for further cooperation. The Government recommended a sentence reduction to 38 years in prison. A few months later, Hartwell filed a motion with an attached affidavit in which he claimed that the Government has agreed, at the time of his plea, to a reduction to an 18-year sentence. The Government responded by saying that such a promise was never made and sought to withdraw the 35(b) motion. The district court granted the Government's motion to withdraw.

Hartwell appealed. After concluding that it did have jurisdiction to review the case, the Fourth Circuit rejected Hartwell's argument. First, it rejected the argument that the district court had no subject-matter jurisdiction over his case because he was charged in an information, rather than indictment, for a capital crime. Second, the court rejected Hartwell's argument that once the Government filed its Rule 35(b) motion it could not withdraw it. Finally, the court rejected Hartwell's argument that the district court should have held an evidentiary hearing prior to dismissing the Rule 35(b) motion. Judge Williams concurred, but argued that Hartwell waived the information argument by not making it at the time of his plea.