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Legal review August 25, 2026 · Links checked October 15, 2026: all 20 sources available · Scope & methodology

Rules 35 and 36 — Sentence Correction, Assistance, Record Error, and Appeals

Rules 35(a), 35(b), and 36 solve different problems. Rule 35(a) provides a fourteen-day clear-error correction power; Rule 35(b) permits a government-initiated substantial-assistance reduction; Rule 36 makes the record accurately reflect the decision already made. None is a general resentencing motion.

Finality and classification

CLM-R3536-001 · claim record

A federal judgment of conviction that includes imprisonment is final even though the sentence can later be corrected under Rule 35, appealed and modified under § 3742, or modified under an express § 3582(c) route. Rule 36 separately permits record correction without supplying a substantive sentence-modification power. 18 U.S.C. § 3582(b); Fed. R. Crim. P. 36

CLM-R3536-002 · claim record

CLM-R3536-003 · claim record

Classify the requested act before filing: correction of a qualifying clear sentencing error under Rule 35(a), reduction for qualifying assistance on the government’s motion under Rule 35(b), or correction of a clerical record error under Rule 36. Fed. R. Crim. P. 35–36

Rule 35(a): clear sentencing error

CLM-R3536-004 · claim record

Within fourteen days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error. Fed. R. Crim. P. 35(a)

CLM-R3536-005 · claim record

For Rule 35, “sentencing” means the oral announcement of the sentence, not entry of the written judgment. Fed. R. Crim. P. 35(c)

CLM-R3536-006 · claim record

Rule 35(a)’s “other clear error” category is deliberately narrow: the official committee note rejects using it to reconsider the Guidelines application, reopen disputed issues, or change the court’s mind about sentence appropriateness. Fed. R. Crim. P. 35 advisory committee note to 1991 amendment

CLM-R3536-007 · claim record

An arithmetic or technical mistake is not automatically correctable merely because it can be labeled that way; the sentence must have resulted from an arithmetical, technical, or other clear error within the rule’s narrow meaning. Fed. R. Crim. P. 35(a) and advisory committee note to 1991 amendment

CLM-R3536-008 · claim record

Because Rule 35(a) authorizes “the court” to correct the sentence and does not require a party’s motion, the court may act on its own within the rule’s authority and time. Fed. R. Crim. P. 35(a)

CLM-R3536-009 · claim record

Criminal Rule 45 forbids extending the time to act under Rule 35 except as Rule 35 itself permits; do not import an ordinary Rule 45 excusable-neglect extension into Rule 35(a). Fed. R. Crim. P. 45(b)(2); Fed. R. Crim. P. 35(a)

CLM-R3536-010 · claim record

CLM-R3536-011 · claim record

The national rules supply no equitable-tolling or party-motion exception to the fourteen-day act-by-court period; whether controlling circuit precedent calls that limit jurisdictional, claim-processing, or another type of authority limit must be verified rather than generalized. Fed. R. Crim. P. 35(a), 45(b)(2)

CLM-R3536-012 · claim record

Rule 35(a) authorizes correction of the qualifying error, not a plenary resentencing or reconsideration of every original sentencing issue. Fed. R. Crim. P. 35(a) advisory committee note to 1991 amendment

Rule 35(b): substantial assistance

CLM-R3536-013 · claim record

Only the government may make a Rule 35(b) substantial-assistance motion; a defendant’s own filing cannot substitute for the required government motion. Fed. R. Crim. P. 35(b)(1)–(2)

CLM-R3536-014 · claim record

CLM-R3536-015 · claim record

CLM-R3536-016 · claim record

CLM-R3536-017 · claim record

Rule 35(b)(2)(C) covers information whose usefulness could not reasonably have been anticipated by the defendant until more than one year after sentencing and that the defendant promptly gave the government after its usefulness became reasonably apparent. Fed. R. Crim. P. 35(b)(2)(C)

CLM-R3536-018 · claim record

Rule 35(b)(3)—not subsection (b)(4)—authorizes a reduction below a statutory minimum. Fed. R. Crim. P. 35(b)(3)

CLM-R3536-019 · claim record

Rule 35(b)(4)—not subsection (b)(3)—allows the court, when evaluating substantial assistance, to consider the defendant’s presentence assistance. Fed. R. Crim. P. 35(b)(4)

CLM-R3536-020 · claim record

CLM-R3536-021 · claim record

Wade v. United States held in the § 3553(e) and Guideline § 5K1.1 context that a government refusal to file a substantial-assistance motion can be reviewed for an unconstitutional motive and that relief may also be appropriate when refusal is not rationally related to a legitimate governmental end. Wade v. United States, 504 U.S. 181, 185–86 (1992)

CLM-R3536-022 · claim record

Wade also holds that a claim of substantial assistance, standing alone, does not entitle the defendant to relief, discovery, or an evidentiary hearing; a substantial threshold showing of improper motive is required. Wade, 504 U.S. at 186

CLM-R3536-023 · claim record

Because Wade itself did not decide a Rule 35(b) dispute, application of its refusal-to-move framework to a post-sentencing Rule 35(b) request must be supported by current controlling circuit precedent. Wade, 504 U.S. at 183–87; Fed. R. Crim. P. 35(b)

CLM-R3536-024 · claim record

CLM-R3536-025 · claim record

Rule 35(b) fixes when the government must make its motion but states no national period within which the court must decide a properly filed motion; docket delay, prejudice, and any extraordinary remedy require separate current authority. Fed. R. Crim. P. 35(b)

Rule 36: clerical record correction

CLM-R3536-026 · claim record

CLM-R3536-027 · claim record

Rule 36 corrects the record; it does not authorize a new substantive sentencing decision or a second decision on an issue the court actually resolved. Fed. R. Crim. P. 36

CLM-R3536-028 · claim record

The controlling question is whether the proposed correction makes the judgment, order, or record accurately express the decision already made; a clerical correction can have practical legal consequences without becoming a license to change that underlying decision. Fed. R. Crim. P. 36

CLM-R3536-029 · claim record

CLM-R3536-030 · claim record

CLM-R3536-031 · claim record

A Rule 36 request belongs on the existing criminal docket containing the judgment, order, or record at issue; it is not an independent civil collateral action. Fed. R. Crim. P. 36

CLM-R3536-032 · claim record

Although Rule 36 says “at any time,” a pending appeal can affect district-court authority; Rule 37 supplies deny, defer, and indicative-ruling options for a timely motion the court lacks authority to grant because an appeal is pending, subject to controlling circuit law. Fed. R. Crim. P. 36–37

CLM-R3536-033 · claim record

Rule 36 itself requires only such notice as the court considers appropriate and does not create an automatic hearing, response, national form, or universal burden formulation; a material dispute about the record requires current circuit and local procedure. Fed. R. Crim. P. 36

Crack-cocaine reduction routes

CLM-R3536-034 · claim record

CLM-R3536-035 · claim record

Section 404 eligibility turns on a pre-August 3, 2010 violation whose statutory penalties were modified by Fair Sentencing Act § 2 or § 3, subject to § 404(c); Terry does not treat every crack-related conviction as covered. First Step Act § 404; Fair Sentencing Act §§ 2–3; Dorsey v. United States, 567 U.S. 260, 264, 273–82 (2012); Terry v. United States, 593 U.S. 486, 489–94 (2021)

CLM-R3536-036 · claim record

Section 3582(c)(2) requires a Commission-lowered range, a retroactively listed amendment, and an actual lower amended range under § 1B1.10; Dillon’s two steps and Hughes’s framework-based Rule 11(c)(1)(C) analysis then apply. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10; Dillon v. United States, 560 U.S. 817, 825–30 (2010); Hughes v. United States, 584 U.S. 675, 685–91 (2018)

CLM-R3536-037 · claim record

Section 404 and § 3582(c)(2) are not interchangeable: Concepcion governs the information a court may consider within § 404’s statutory framework, while Dillon and § 1B1.10 constrain the distinct retroactive-amendment proceeding. Concepcion v. United States, 597 U.S. 481, 495–502 (2022); Dillon, 560 U.S. at 825–30

Appeal rights and review

CLM-R3536-038 · claim record

In a criminal case, the defendant’s notice ordinarily is due within fourteen days after entry of the judgment or order appealed, the government’s within thirty days, a confined filer may use Rule 4(c), and the district court may grant no more than thirty additional days for good cause or excusable neglect under Rule 4(b)(4). Fed. R. App. P. 4(b)–(c)

CLM-R3536-039 · claim record

The finality and tolling effect of a post-order reconsideration request is not supplied by a generic civil-motion rule; calendar the underlying criminal appeal deadline and verify current controlling circuit law before assuming reconsideration preserves the appeal. Fed. R. App. P. 4(b)

CLM-R3536-040 · claim record

Sections 1291 and 3742 provide different appellate-jurisdiction texts; whether a particular Rule 35, Rule 36, compassionate-release, retroactive-amendment, or § 404 order proceeds under one or both requires the exact order, appellant, issue, and controlling circuit law. 28 U.S.C. § 1291; 18 U.S.C. § 3742

CLM-R3536-041 · claim record

CLM-R3536-042 · claim record

In a § 3582(c)(2) proceeding, the order and broader record must reveal enough to show a reasoned basis and consideration of the parties’ arguments, but the necessary explanation is contextual and there is no presumption of a proportional reduction. Chavez-Meza v. United States, 585 U.S. 109, 115–20 (2018); Dillon, 560 U.S. at 825–30

CLM-R3536-043 · claim record

In a § 404 proceeding, the court must consider nonfrivolous arguments and give a brief statement of reasons, but it need not accept the arguments or reduce the sentence; the benchmark range is recalculated only for Fair Sentencing Act changes. Concepcion, 597 U.S. at 495–502 & n.6

CLM-R3536-044 · claim record

Decision path

flowchart TD
    A["Post-sentencing correction or reduction requested"] --> B{"What is the asserted basis?"}
    B -->|"Clear sentencing error"| C{"Court can act within 14 days after oral sentence?"}
    C -->|"Yes"| D["Apply narrow Rule 35(a) correction authority"]
    C -->|"No"| E["Rule 35(a) unavailable; do not relabel as clerical"]
    B -->|"Substantial assistance"| F{"Government motion satisfying Rule 35(b)(1) or (2)?"}
    F -->|"Yes"| G["Court decides whether and how much to reduce"]
    F -->|"No"| H["Check agreement and circuit-specific Wade route; defendant cannot self-initiate"]
    B -->|"Record does not reflect decision actually made"| I{"Genuinely clerical or oversight error?"}
    I -->|"Yes"| J["Rule 36 correction with appropriate notice"]
    I -->|"No"| E
    B -->|"Crack-cocaine reduction"| K{"§ 404 statutory change or § 3582(c)(2) listed amendment?"}
    K --> L["Apply only the selected vehicle’s eligibility, scope, and remedy rules"]
    D --> M["Calendar appeal independently"]
    G --> M
    J --> M
    L --> M

Required record and circuit checks

Oral sentencing transcript, written judgment, statement of reasons, Guidelines calculations, and docket-entry dates.
Exact claimed error and whether correction changes the decision or merely the record of that decision.
Government motion, cooperation agreement, assistance timeline, information dates, and any refusal-to-move evidence.
Current circuit law applying Wade to Rule 35(b), enforcing cooperation promises, and defining reviewable Rule 35(b) issues.
Pending appeal, mandate, Rule 37 procedure, notice, hearing, and local filing requirements.
Exact sentence-modification vehicle, eligibility, amendment, statutory penalty, prior reduction, and order.
Appellate jurisdiction, notice deadline, preservation, issue-specific standard of review, and remedy under current circuit law.

Claim-level source records

CLM-R3536-001 · verified_current

jurisdiction: federal_nationwide_with_express_circuit_specific_limits
procedural posture: finality_and_classification
classification: binding
last verified: 2026-08-25
known limitations: The exact oral sentence, written record, filing date, government motion or agreement, crack-cocaine remedy, appealed order, preservation, controlling circuit, local rules, and requested relief remain required where identified.
researcher notes: Current official rule, Code, Guidelines, legislation, and Supreme Court sources reviewed; no universal circuit rule for Rule 35(b) refusal, Rule 36 appeal interaction, appellate jurisdiction, or standard of review is asserted.

Authorities: 18 U.S.C. § 3582; Fed. R. Crim. P. 35 and 36

CLM-R3536-002 · verified_current

Section 3582(c)(1)(B) permits modification only to the extent expressly allowed by statute or Rule 35; the cross-reference does not enlarge Rule 35’s own trigger, timing, movant, or scope. [18 U.S.C. § 3582(c)(1)(B)](https://www.govinfo.gov/link/uscode/18/3582); [Fed. R. Crim. P. 35](https://www.uscourts.gov/sites/default/files/2025-02/federal-rules-of-criminal-procedure-dec-1-2024.pdf)

jurisdiction: federal_nationwide_with_express_circuit_specific_limits
procedural posture: finality_and_classification
classification: binding
last verified: 2026-08-25
known limitations: The exact oral sentence, written record, filing date, government motion or agreement, crack-cocaine remedy, appealed order, preservation, controlling circuit, local rules, and requested relief remain required where identified.
researcher notes: Current official rule, Code, Guidelines, legislation, and Supreme Court sources reviewed; no universal circuit rule for Rule 35(b) refusal, Rule 36 appeal interaction, appellate jurisdiction, or standard of review is asserted.