The opinion of the court was delivered by: STEWART DALZELL
The Government raises a novel issue with the motion it filed, under Federal Rule of Criminal Procedure 35(b), for a reduction in defendant's sixteen month sentence. Though the Rule empowers the Court, on the Government's motion within a year after sentence, to "reduce a sentence to reflect a defendant's subsequent, substantial assistance", the Government here seeks to win this benefit for a defendant based upon the unsolicited "subsequent, substantial assistance" of her paramour.
A brief rehearsal of history is relevant to our disposition of the Government's motion.
On April 26, 1994, a Grand Jury indicted Bush in five counts of making false statements in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6), and in five counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Bush pleaded guilty on July 13, 1994 to one false statement count and one possession count, but stipulated to having committed the other eight charged offenses, and further stipulated that, for purposes of her Sentencing Guidelines range, those eight crimes "shall be treated as if . . . [she] had been convicted of additional counts charging these offenses." United States v. Bush, 56 F.3d 536, 537 (3d Cir. 1995).
At the October 14, 1994 sentencing hearing, there was a spirited dispute between the Government and Bush as to the proper application of the grouping principles of U.S.S.G. § 3D1.4 (1990 Manual). In essence, the parties diverged as to whether Bush's purchase of eight weapons on five separate occasions should be counted as five "groups" or one. We found three "groups", basing our decision in part upon Bush's shifting explanations for her purchases. United States v. Bush, 1994 U.S. Dist. LEXIS 14730, No. 94-185 (E.D. Pa. October 14, 1994) (Memorandum and Order). It is upon these shifting explanations that we now focus.
On December 4, 1992, agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") interviewed Bush about her many purchases. Bush proferred a pacifist version of a Bonnie-and-Clyde story, telling them that she bought the guns because "she and her common-law husband, Cedric Pinckney, liked to shoot at Colosimo's range." Presentence Investigation Report ("PSI") P 7. She also implied that she knew, but refused to say, where the guns were. Id. ; see also Bush, 56 F.3d at 541-42.
Two years later, Bush gave her Probation Officer another explanation. During the presentence investigation she offered a 1990s version of Little Women and suggested that she bought the guns for protection for her mother and sisters. She also said that she no longer knew where the guns were, id., and freely admitted that none of the guns had ever reached their intended recipients, id. P 10.
Since we did not see how either explanation could plausibly explain the purchase of four semi-automatic weapons on November 29, 1990, we charitably inferred to Bush a third motive, which we euphemistically referred to as the "mystery motive." Bush, 56 F.3d at 541.
At her sentencing hearing, Bush gave us support for the use of the word mystery when she told us:
. . . O.K. I didn't do it to hurt nobody. All right. Only God knows what I did it for, and I came to you all with the truth and the whole truth.
A month after the affirmance from the Court of Appeals, the Government filed the instant Rule 35(b) motion predicated on the cooperation of one Cedric Pinckney, also known as "Saad Abdul Salaam", Bush's paramour. Pinckney was arrested with Bush, but charged with different offenses. The Government advises us that Pinckney was convicted in September of 1994 in the United States District Court for the District of Delaware of armed bank robbery, and was later sentenced to one hundred months in jail. Government's mot. P 4.
In February of 1995, Pinckney began cooperating with the Government, and ultimately admitted that he and Bush purchased between thirty and fifty firearms between 1990 and May of 1993. Government's mot. P 7. Pinckney needed Bush to act as a straw purchaser, since his own ...