ORDER

LLOYD D. GEORGE, District Judge.

Before the Court are the government's motion (#254) and amended motion (#265) to reduce the sentence of Bryan Binns pursuant to Fed. R. Crim. Pro. 35(b).

In June 2015, the government and the defendant entered into a stipulation to reduce the defendant's sentence from a term of incarceration of 235 months to a term of 188 months. The parties indicated that the stipulation was to give effect to a retroactive change to the sentencing guideline underlying the Court's calculation of the defendant's advisory guideline sentencing range. The Court re-sentenced the defendant pursuant to the parties' stipulation, and re-sentenced the defendant to a term of 188 months incarceration.

The United States then filed its original Rule 35(b) motion, asking that the Court reduce the defendant's sentence from a term of incarceration of 235 months to a term of 188 months, to reflect substantial assistance provided by the defendant's wife. In its amended motion, the assistant United States Attorney asserts that, at the time she filed the original motion, she was unaware that defendant had already entered into a sentence-reduction stipulation with the appellate section of the United States Attorney's office, and that the Court had already re-sentenced the defendant to a term of 188 months. As such, the government clarifies, through its amended motion, that it seeks a further reduction of the defendant's sentence from 188 months to 151 months.

In seeking a Rule 35(b) reduction of the defendant's sentence, the government notes that, following the defendant's sentencing in April 2012, his wife-Bebsy Pulido-contacted the Drug Enforcement Administration to indicate a willingness to assist the DEA in exchange for a possible reduction of sentence for the defendant. In April 2015, the defendant's wife provided information to the DEA regarding a methamphetamine supplier in Los Angeles. The defendant's wife acted as a confidential informant. Ultimately, agents of the DEA were able to recover four pounds of methamphetamine and to arrest one person.

The defendant's response to the motion largely echos the facts recited by the government, though the defendant indicates that Bebsy Pulido is his fiancee, and that she met with a DEA agent in March 2015.

The government did not specify the specific provision of Rule 35 pursuant to which it brought its motion. The defendant suggests that the motion was brought pursuant to Rule 35(b)(2)(B).

While the parties agree that a reduction of the defendant's sentence would be appropriate under Rule 35(b), the appropriateness of the requested relief is not yet apparent to the Court. Specifically, the language of Rule 35(b) permits the court to reduce a defendant's sentence for the defendant's substantial assistance in investigating or prosecuting another person. Neither the government's motion nor the defendant's response, however, recites any assistance provided by the defendant. Rather, the motion and response make clear that a person other than the defendant provided assistance to the government, in an effort to obtain a reduced sentence for the defendant.

Neither the government nor the defendant have offered any authority to suggest that their mere agreement to a reduced sentence is a sufficient basis to grant such a reduction pursuant to Rule 35(b). Further, neither the government nor the defendant have provided any argument or citation to authority suggesting that the Court may, in the context of Rule 35(b), attribute the substantial assistance of a defendant's surrogate to a defendant, sufficient to comport with the language of the Rule. Accordingly, the Court will provide the parties an opportunity to submit supplemental briefs specifically addressing whether the court may, pursuant to Rule 35(b), reduce a defendant's sentence for the substantial assistance provided by a surrogate.

The Court would further request that, in its supplemental brief, the government identify the specific provision of Rule 35(b)(2) pursuant to which it has brought its motion. Rule 35(b)(2) permits the court to grant a sentence reduction only if the defendant's substantial assistance involved (a) information not known to the defendant until after one year after the sentencing, (b) information known and disclosed within one year after the sentencing, or (c) information known within one year and disclosed after one year after the sentencing if the defendant did not anticipate the usefulness of the information within the one-year period. Assuming that Rule 35(b) can be construed to extend to the substantial assistance of a surrogate on behalf of a defendant, the government's motion appears to suggest that she disclosed the information involved in her assistance to the government more than one year after the defendant's sentence. This would suggest that the government has brought its motion pursuant to Rule 35(b)(2)(A), as Rule 35(b)(2)(B) requires a disclosure within one year after a defendant's sentencing. The motion does not, however, indicate that the information involved in Pulido's substantial assistance was not known to her until more than one year after the defendant's sentencing. Thus, the motion does not permit a determination by the Court that her disclosure of the information known to her was timely under Rule 35(b)(2)(A). Conversely, if the government has brought its motion pursuant to Rule 35(b)(2)(B), the government's motion does not presently indicate a basis to conclude that she provided that information involved in her assistance to the government within the applicable one-year period.1 The Court requests that the government clarify the basis for its motion.

Accordingly, for good cause shown,

THE COURT ORDERS that the government shall file a supplemental brief not later than Friday, October 14, 2016. The defendant may file a supplemental response brief not later than Friday, October 21, 2016.