by David Kim

The United States Court of Appeals for the Seventh Circuit held that the one-year time limit for filing a sentence-reduction motion under Federal Rule of Criminal Procedure 35(b)(1) is a nonjurisdictional claim-processing rule that may be waived, overruling its decision in United States v. McDowell, 117 F.3d 974 (7th Cir. 1997), which the Court concluded has been displaced by the Supreme Court’s decision in Hamer v. Neighborhood Housing Services of Chicago, 583 U.S. 17 (2017).

Background

Andrew Johnston was convicted by a jury of attempted bank robbery and sentenced on April 4, 2019, to 168 months in prison. While awaiting transfer to federal prison, Johnston provided substantial assistance to the Government by reporting information about criminal activity by a fellow prisoner and cooperating with federal law enforcement officials investigating the matter.

In recognition of Johnston’s assistance, the Government filed a motion under Rule 35(b)(1) on April 12, 2021, seeking a 25% reduction in his sentence. The motion was filed more than two years after sentencing, well beyond the one-year deadline prescribed by the rule, and no exception under Rule 35(b)(2) applied. The Government contended that the deadline is waivable and expressly waived it.

The U.S. District Court for the Northern District of Illinois addressed the motion on the merits. While acknowledging that Johnston’s cooperation was “unquestionably useful to the government,” the court concluded that it could not draw the favorable inference typically associated with postsentencing assistance because Johnston had not acknowledged any of his own wrongdoing, as reflected in his numerous frivolous postconviction filings challenging his conviction. Based on the 18 U.S.C. § 3553(a) sentencing factors, the court reduced Johnston’s sentence by 10% to 151 months, not the 25% requested.

Johnston timely appealed. The Seventh Circuit appointed counsel and directed the parties to address the District Court’s jurisdiction to hear the untimely Rule 35(b) motion in light of the Supreme Court’s decision in Hamer. The Court also appointed an amicus curiae to brief any good-faith arguments that McDowell remains good law.

Analysis

The Court began its analysis by discussing the Rule 35(b) framework. Once a federal prison sentence has been imposed, it is final and may be modified only in limited circumstances. The sentencing statute states that a court may modify a term of imprisonment only as “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). Rule 35(b)(1) permits the court to reduce a sentence based on the defendant’s substantial assistance but only “[u]pon the government’s motion made within one year of sentencing.” Rule 35(b)(1). Certain motions may be filed after the one-year deadline but only if the defendant’s substantial assistance involved information meeting specific criteria set forth in Rule 35(b)(2), none of which applied here, according to the Court.

In McDowell, the Seventh Circuit held that the one-year time limit is a jurisdictional bar that cannot be waived. If McDowell controlled, the Court would be required to vacate the order modifying Johnston’s sentence.

Displacement of McDowell
by Hamer

The Court explained that for almost two decades, the Supreme Court has sought to curtail the tendency to classify procedural requirements as jurisdictional. The Supreme Court has highlighted “the distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules.” Fort Bend County v. Davis, 587 U.S. 541 (2019). The jurisdictional label is “generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction).” Id. In contrast, claim-processing rules “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Id.

A claim-processing rule “may be mandatory in the sense that a court must enforce the rule if a party properly raise[s] it,” but it can be waived or forfeited. Hamer. On the other hand, the Court noted that a jurisdictional rule “cannot be waived or forfeited, must be raised by courts sua sponte, and … do[es] not allow for equitable exceptions.” Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022). Because “[h]arsh consequences attend the jurisdictional brand,” Fort Bend County, the Supreme Court has concerned itself with demarcating the line between true jurisdictional limits and waivable claim-processing rules. See, e.g., Riley v. Bondi, 145 S. Ct. 2190 (2025); Harrow v. Department of Defense, 601 U.S. 480 (2024); Boechler, 596 U.S. 199.

The Court stated that Hamer is the most relevant decision in this line of cases because the Supreme Court reminded that “[o]nly Congress may determine a lower federal court’s subject-matter jurisdiction.” From this fundamental principle flows the corollary that “[a] time limit not prescribed by Congress ranks as a mandatory claim-processing rule.” Id. Accordingly, “a time limit prescribed only in a court-made rule … is not jurisdictional; it is, instead, a mandatory claim-processing rule.” Id.

The Court determined that its holding in McDowell cannot be reconciled with Hamer. McDowell relied on earlier opinions adopting jurisdictional interpretations of previous versions of Rule 35, noted that District Courts lacked power to revisit sentences before the Federal Rules were adopted, pointed to Rule 45’s prohibition on extending certain deadlines, and raised a practical concern that permitting waiver “would render the deadline ineffectual,” the Court explained. Absent from this analysis was any acknowledgment of Congress’ exclusive role in delineating the subject-matter jurisdiction of the lower federal courts, a principle the Supreme Court’s recent cases have emphasized, according to the Court.

The Court rejected the amicus’ argument that the general cross-reference to Rule 35 in § 3582(c)(1)(B) confers jurisdictional significance on the rule’s time limit. The Court noted that it had already rejected a jurisdictional reading of § 3582(c) in United States v. Taylor, 778 F.3d 667 (7th Cir. 2015), which considered whether the sentence-modification criteria in § 3582(c)(2) are jurisdictional. Taylor observed that “§ 3582 is not part of a jurisdictional portion of the criminal code[,] … [n]or is subsection (c) phrased in jurisdictional terms.” Taylor clarified that “district courts have subject-matter jurisdiction over – that is, the power to adjudicate – a § 3582(c)(2) motion even when authority to grant a motion is absent because the statutory criteria [have] not [been] met.” The Court determined that this analysis applies with equal force to foreclose any argument that the cross-reference to Rule 35 in § 3582(c)(1)(B) confers jurisdictional status on the one-year time limit.

Accordingly, the Court concluded that McDowell is no longer good law because the Supreme Court’s decisions in Hamer and other recent cases have effectively overruled it. The Court held that “Rule 35(b)’s one-year time limit is a nonjurisdictional claim-processing rule and may be waived.”

The Merits

Turning briefly to the merits, the Court noted that 18 U.S.C. § 3742 narrowly circumscribes appellate review of Rule 35(b) rulings, limiting review to whether “the sentence … was imposed in violation of law.” § 3742(a)(1). Arguments about discretionary determinations fall outside the statutory scope of review, according to the Court. United States v. McGee, 508 F.3d 442 (7th Cir. 2007).

Johnston argued that the District Court unlawfully considered his postconviction litigation conduct. The Court rejected this claim, explaining that no legal rule bars a District Court from considering such conduct as reflecting poorly on a defendant’s acceptance of responsibility. A court may consider the § 3553(a) sentencing factors when ruling on a Rule 35(b) motion, United States v. Chapman, 532 F.3d 625 (7th Cir. 2008), and a defendant’s lack of remorse can bear on that analysis, see United States v. Wood, 31 F.4th 593 (7th Cir. 2022). The Court concluded that whether Johnston’s litigation conduct deserved the weight the judge attributed to it was an unreviewable discretionary determination.

Conclusion

Accordingly, the Court affirmed the District Court’s order reducing Johnston’s sentence by 10% to 151 months. See: United States v. Johnston, 158 F.4th 870 (7th Cir. 2025).  

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