Rule 35(b)(1)’s One-Year Deadline Is a Waivable Claim-Processing Rule; District Courts May Weigh Frivolous Postconviction Litigation When Fixing Substantial-Assistance Reductions

Introduction

In United States v. Andrew J. Johnston, No. 21-2081 (7th Cir. Oct. 29, 2025), a panel of the Seventh Circuit (Chief Judge Brennan and Judges Rovner and Sykes; opinion by Judge Sykes) resolved two recurring and practically important issues in federal sentencing modification practice:

First, the court held that the one-year filing deadline in Federal Rule of Criminal Procedure 35(b)(1) is not jurisdictional. In light of the Supreme Court’s instruction in Hamer v. Neighborhood Housing Services of Chicago, the Rule 35(b) deadline is a nonjurisdictional claim-processing rule that can be waived or forfeited if not timely asserted. This holding displaces the Seventh Circuit’s earlier contrary decision in United States v. McDowell (1997).
Second, on the merits, the court affirmed a partial Rule 35(b) reduction from 168 to 151 months (about 10%) and clarified that a district judge may consider a defendant’s postconviction litigation conduct—including repetitive, frivolous filings—as relevant to acceptance of responsibility and the § 3553(a) factors when calibrating the size of a substantial-assistance reduction.

The case arises from Andrew Johnston’s attempted bank robbery conviction and his later cooperation in an investigation involving a Sinaloa Cartel lieutenant detained at the Metropolitan Correctional Center in Chicago. The government moved under Rule 35(b) for a 25% reduction more than two years after sentencing; the district court entertained the motion, found Johnston’s assistance “unquestionably useful,” but granted only a 10% reduction, reasoning that his unremitting, frivolous filings undermined any inference of remorse or genuine acceptance of responsibility. The Seventh Circuit affirmed.

Summary of the Opinion

Jurisdictional Ruling: Rule 35(b)(1)’s “one year from sentencing” deadline is a nonjurisdictional claim-processing rule. Hamer’s clear instruction—that time limits found only in court-made rules are not jurisdictional—displaces McDowell’s earlier jurisdictional treatment of the Rule 35(b) deadline. Because the government expressly waived timeliness below, the district court properly reached the merits.
Scope of Appellate Review: Appellate review of Rule 35(b) rulings is strictly limited by 18 U.S.C. § 3742(a). The court may review only whether a sentence was “imposed in violation of law.” Disagreements with the district court’s discretionary weighting of factors and the percentage reduction are unreviewable.
Merits Holding: No law prohibited the district court from considering Johnston’s frivolous postconviction litigation as evidence of lack of remorse or failure to accept responsibility. District courts may consider § 3553(a) factors during Rule 35(b) proceedings and are not required to conduct a full resentencing or analyze every § 3553(a) factor. The district court’s explanation was adequate; the order was affirmed.

Background and Procedural History

Johnston—a repeat bank robber—was convicted by a jury of attempted bank robbery and sentenced in April 2019 to 168 months. While awaiting transfer from the Chicago MCC, he reported and recorded statements by a Sinaloa Cartel lieutenant (Beltran) suggesting a bounty on another cartel figure, Lopez. Johnston later testified at Beltran’s sentencing. The sentencing judge in Beltran’s case did not credit Johnston’s testimony for purposes of an obstruction enhancement but considered the recorded conversation in weighing § 3553(a) factors.

In April 2021, more than two years after Johnston’s sentencing, the government moved under Rule 35(b)(1) for a 25% reduction. The government asserted the one-year deadline was waivable and expressly waived it. The district judge agreed that Johnston’s assistance was useful and that cooperation can sometimes reflect acceptance of responsibility—but found that Johnston’s relentless, frivolous court filings and collateral litigation showed no genuine acceptance of wrongdoing. The court granted a 10% reduction (to 151 months).

On appeal, after initial pro se filings, the Seventh Circuit appointed counsel and ordered briefing on whether the district court had jurisdiction to entertain an untimely Rule 35(b) motion in light of Hamer. Anticipating agreement between the parties, the court appointed an amicus to present good-faith arguments for preserving McDowell’s jurisdictional view. The panel ultimately held that Hamer governs and that McDowell has been displaced.

Questions Presented

Is the one-year deadline in Rule 35(b)(1) jurisdictional, such that an untimely motion deprives the district court of authority to act, or is it a waivable claim-processing rule?
Did the district court commit legal error by considering Johnston’s frivolous postconviction litigation conduct to reduce the size of the Rule 35(b) substantial-assistance reduction?

Holdings

Rule 35(b)(1)’s one-year deadline is a nonjurisdictional claim-processing rule. It is enforceable if properly invoked but can be waived or forfeited. Hamer displaces McDowell.
No legal rule barred the district court from considering Johnston’s postconviction litigation conduct when assessing acceptance of responsibility and § 3553(a) factors in calibrating the reduction. The size of the reduction is an unreviewable discretionary determination under § 3742(a).

Detailed Analysis

Precedents Cited and Their Influence

Hamer v. Neighborhood Housing Services of Chicago, 583 U.S. 17 (2017): The linchpin. Hamer distinguishes jurisdictional prescriptions from claim-processing rules and squarely holds that time limits set by court-made rules (not statutes) are nonjurisdictional. The Seventh Circuit relies on Hamer’s bright-line principle—“Only Congress may determine a lower federal court’s subject-matter jurisdiction” and “A time limit not prescribed by Congress ranks as a mandatory claim-processing rule”—to reclassify Rule 35(b)(1)’s deadline.
Fort Bend County v. Davis, 587 U.S. 541 (2019): Reinforces the high court’s project to cabin the “jurisdictional” label and clarifies that claim-processing rules are mandatory when properly invoked but are subject to waiver and forfeiture.
Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022): Emphasizes the need for a clear statement from Congress to treat a procedural requirement as jurisdictional and the “harsh consequences” that attend mislabeling rules as jurisdictional.
Harrow v. Department of Defense, 601 U.S. 480 (2024) and Riley v. Bondi, 145 S. Ct. 2190 (2025): Cited to illustrate the Supreme Court’s continued refinement of the jurisdictional/nonjurisdictional line for statutory time limits and review deadlines. The thread running through these decisions confirms the nonjurisdictional character of many timing rules absent an explicit congressional statement.
United States v. McDowell, 117 F.3d 974 (7th Cir. 1997): The Seventh Circuit’s pre-Hamer decision holding Rule 35(b)’s one-year deadline jurisdictional. The panel explains why McDowell’s reasoning—reliance on pre-FRCP practice, Rule 45’s non-extension clause, and practical concerns—cannot survive Hamer’s constitutional allocation of authority and the modern “clear statement” approach.
United States v. Taylor, 778 F.3d 667 (7th Cir. 2015): The Seventh Circuit held that § 3582(c)(2)’s criteria are nonjurisdictional, underscoring that § 3582 is not phrased in jurisdictional terms and resides outside jurisdictional provisions of the criminal code. Taylor’s logic applies here to the adjacent § 3582(c)(1)(B) cross-reference to Rule 35.
United States v. Chapman, 532 F.3d 625 (7th Cir. 2008) and United States v. McGee, 508 F.3d 442 (7th Cir. 2007) (per curiam): Establish that appeals from Rule 35(b) decisions are tightly constrained by 18 U.S.C. § 3742(a); purely discretionary disagreements about the amount of a reduction are not reviewable. Chapman also recognizes that courts may consider § 3553(a) factors and assess whether cooperation reflects genuine acceptance of responsibility or opportunism.
United States v. Purnell, 701 F.3d 1186 (7th Cir. 2012): Cautions that judicial “frustration” with repeated postconviction filings should not drive § 3582(c) outcomes, while acknowledging that postconviction conduct—including court filings—may legitimately inform findings on remorse and acceptance of responsibility.
United States v. Webster, 666 F.3d 1023 (7th Cir. 2012): Confirms that Rule 35(b) proceedings are not full resentencings and do not require a factor-by-factor § 3553(a) analysis.
United States v. Wood, 31 F.4th 593 (7th Cir. 2022); United States v. Norwood, 982 F.3d 1032 (7th Cir. 2020); Bergmann v. McCaughtry, 65 F.3d 1372 (7th Cir. 1995): Endorse consideration of a defendant’s lack of genuine remorse in sentencing analyses.
United States v. Lewis, 817 F.3d 1054 (7th Cir. 2016): Warns against allowing irritation with a defendant’s filings to “permeate” a sentencing decision. The panel finds no such impermissible motive here.

Legal Reasoning

1) From Jurisdictional Bar to Waivable Claim-Processing Rule

The opinion’s first task is to decide whether the untimeliness of the government’s Rule 35(b)(1) motion stripped the district court of power to act. Hamer supplies a crisp answer: Congress alone defines subject-matter jurisdiction; time limits that appear only in rules promulgated by the judiciary are nonjurisdictional claim-processing rules. Rule 35(b)(1)’s one-year deadline is such a rule-based time limit. Consequently, failure to comply does not divest the court of adjudicatory power. Instead, the deadline:

Must be enforced if properly invoked by a party;
But can be waived or forfeited if not raised.

The amicus urged a different route: that § 3582(c)(1)(B)’s reference to modifications “expressly permitted … by Rule 35” imbues Rule 35’s conditions, including the deadline, with jurisdictional force. The panel rejects this for two reasons. First, a general statutory cross-reference does not transform a court-made timing rule into a jurisdictional limitation absent a clear congressional statement. Second, Taylor already held that closely related § 3582(c)(2) criteria are nonjurisdictional. The statute is not framed in jurisdictional terms, and nothing in § 3582(c)(1)(B) signals a congressional intent to jurisdictionalize Rule 35(b)’s deadline.

The court also explains why McDowell cannot survive Hamer. McDowell’s reliance on historical practice, Rule 45’s non-extension clause, and practical concerns about diluting a deadline by allowing waiver cannot overcome the constitutional allocation of authority Hamer reasserts: absent a statutory command from Congress, court-rule timing prescriptions are not jurisdictional.

2) Consequence: The District Court Properly Reached the Merits

Because the government expressly waived the Rule 35(b)(1) timeliness objection, the district court was entitled to decide the motion on the merits even though no Rule 35(b)(2) exception (e.g., later usefulness of information) applied. That is the practical effect of the claim-processing characterization: the rule remains mandatory if invoked but is not self-executing or obligatory sua sponte.

3) Appellate Review under 18 U.S.C. § 3742(a)

The Seventh Circuit reaffirms its narrow review authority over Rule 35(b) decisions. Section 3742(a) allows review only if “the sentence was imposed in violation of law” or on other limited grounds not relevant here. Critically:

Disputes about the size of a Rule 35(b) reduction (e.g., whether it should have been 25% instead of 10%) are quintessentially discretionary and unreviewable.
Legal errors—such as relying on impermissible factors—are reviewable.

4) Considering Postconviction Litigation Conduct Is Permissible

The panel rejects Johnston’s sole cognizable legal argument: that the district judge could not lawfully consider his postconviction filings. The court reiterates several principles:

Judges may assess whether cooperation evidences genuine acceptance of responsibility or opportunistic sentence-seeking (Chapman).
Judges may and often should consider § 3553(a) factors in Rule 35(b) proceedings; lack of remorse is a valid consideration within that analysis (Wood, Norwood, Bergmann).
Although courts should not let irritation at “repeated post-conviction filings” drive decisions, postconviction conduct—including the volume and frivolousness of filings—can legitimately inform findings about remorse and responsibility (Purnell).
There was no sign here that exasperation with filings “permeated” the decision or that the court punished Johnston for petitioning; rather, the court made a reasoned finding that the pattern of baseless filings undermined any inference of remorse.

The district court’s explanation was adequate and appropriately limited: it credited the usefulness of Johnston’s assistance, acknowledged that cooperation can signal acceptance of responsibility, and then explained why Johnston’s particular litigation record rebutted that inference, justifying a smaller reduction.

5) No Full Resentencing or Factor-by-Factor Recital Required

The court confirms that a Rule 35(b) hearing is not a do-over sentencing. District courts need not march through every § 3553(a) factor (Webster; Purnell; Chapman). They must, however, articulate a clear, reviewable rationale. The district court did so by tying its decision to the usefulness of assistance, acceptance-of-responsibility considerations, and the prior § 3553(a)-based sentence imposed just two years earlier.

Impact and Practical Implications

A. Reclassification of Rule 35(b)(1) Deadline

Government motions may proceed despite lateness if unchallenged: Treating the one-year limit as a claim-processing rule enables district courts to adjudicate untimely Rule 35(b)(1) motions when the parties do not press timeliness—most often because both the government and defendant favor consideration of cooperation.
Who may invoke timeliness? Because defendants almost never oppose their own reductions, enforcement of the time bar will likely depend on district courts or the government itself raising it. After Johnston, courts are not obliged to raise timeliness sua sponte, and the government may waive it.
Interplay with Rule 35(b)(2) exceptions: The (b)(2) exceptions retain independent force when timeliness is contested. If a party properly invokes the one-year time bar, the government must show an exception applies. But if no one invokes the bar, the motion can be heard and granted on the merits without satisfying (b)(2).
Alignment with Supreme Court’s jurisdictionality doctrine: Johnston harmonizes Seventh Circuit law with Hamer and subsequent cases—reducing the risk of sua sponte dismissals on jurisdictional grounds and emphasizing party presentation and preservation.

B. Substantial Assistance and Acceptance of Responsibility

Cooperation ≠ automatic large discount: The decision underscores that the size of a Rule 35(b) reduction is not mechanical. Judges may probe whether cooperation signifies genuine contrition or strategic maneuvering.
Use of postconviction conduct: A defendant’s pattern of frivolous, vexatious litigation can legitimately weigh against expansive reductions, as it may reflect ongoing rejection of responsibility, even when assistance was “unquestionably useful.”
Guardrails against chill: Johnston reaffirms that courts must avoid punishing petitioning activity per se or letting frustration “permeate” decisions (Lewis; Purnell). The analysis must hew to remorse, responsibility, deterrence, and other § 3553(a) considerations.

C. Appellate Strategy and Preservation

Limited appellate review: Defendants seeking a larger Rule 35(b) reduction face a narrow path. Absent a legal error (e.g., reliance on a forbidden factor), disputes over “how much” are unreviewable under § 3742(a).
Timeliness objections: Parties who wish to enforce the one-year deadline must raise it. Failing to do so effects a waiver or forfeiture, foreclosing later complaints about untimeliness on appeal.
District court explanations: Although not required to canvass all § 3553(a) factors, judges should clearly connect assistance, acceptance-of-responsibility considerations, and any other salient § 3553(a) factors to the resulting percentage or term to facilitate meaningful but limited appellate review.

Complex Concepts Simplified

Jurisdictional rule vs. claim-processing rule: A jurisdictional rule limits a court’s very power to decide a case; it cannot be waived, may be raised at any time (even by the court sua sponte), and allows no equitable exceptions. A claim-processing rule is a mandatory procedural directive that must be enforced if invoked, but which can be waived or forfeited if not. Hamer teaches that time limits found exclusively in court rules are claim-processing rules, not jurisdictional.
Rule 35(b): Allows the government to seek a post-sentencing reduction for a defendant’s substantial assistance. Subsection (b)(1) generally requires filing within one year; subsection (b)(2) authorizes later filing, but only in defined circumstances (e.g., information’s usefulness ripening later).
18 U.S.C. § 3582(c)(1)(B): The statute that permits sentence modifications “to the extent otherwise expressly permitted by statute or by Rule 35.” It is not framed as jurisdictional and does not transform Rule 35’s requirements into jurisdictional preconditions.
18 U.S.C. § 3742(a): Limits appeals of sentences. In the Rule 35(b) context, appellate courts generally review only legal errors; they will not reweigh the percentage of the reduction or second-guess discretionary calibrations.
Acceptance of responsibility and remorse: While often discussed at original sentencing, courts may also consider post-sentencing evidence of acceptance or its absence when deciding how much to reward cooperation. Continued frivolous litigation can undermine claims of genuine contrition.
Not a full resentencing: A Rule 35(b) proceeding is a focused sentence-modification step, not a clean-slate resentencing. The judge need not reconsider every factor or issue, only those pertinent to the reduction and any relevant § 3553(a) considerations.

Practice Pointers

For prosecutors: If a Rule 35(b) motion is late but justified as a matter of policy or equity, say so and expressly waive timeliness to foreclose later disputes. Be prepared to explain the degree of assistance and to address whether the defendant’s overall conduct (including litigation behavior) supports or undermines an inference of acceptance of responsibility.
For defense counsel: Emphasize corroborated assistance and any evidence of genuine remorse beyond cooperation (programming, restitution efforts, apologies, discipline-free conduct). Counsel clients about the potential adverse optics of repetitive, meritless filings while a Rule 35(b) motion is pending.
For district judges: Briefly state (1) the nature and value of assistance, (2) whether acceptance of responsibility is genuinely evidenced or rebutted by postconviction conduct, and (3) how the selected reduction fits within § 3553(a)’s aims in light of the original sentence. This will satisfy Purnell’s clarity requirement and avoid Harrington-style remands for ambiguity.
On timeliness objections: If a party invokes Rule 35(b)(1)’s deadline, the court must enforce it unless a (b)(2) exception applies. If no one raises timeliness, the court may proceed to the merits.

Unresolved Questions and Future Litigation

Scope of sua sponte enforcement: While claim-processing rules need not be raised sua sponte, some courts occasionally do so to preserve orderly procedure. Johnston’s logic suggests district courts are not required to, and should ordinarily respect party waiver/forfeiture.
Cross-circuit uniformity: Post-Hamer, circuits that previously treated Rule 35(b) deadlines as jurisdictional will likely revisit those holdings. Johnston contributes to a growing alignment but may prompt additional appellate clarification elsewhere.
Boundaries on using litigation conduct: Johnston permits consideration of frivolous filings to evaluate remorse. Future cases may refine the line between legitimate assessment and impermissible penalization for petitioning, especially when filings touch on constitutional claims or when sanctions or filing bars are in play.

Conclusion

United States v. Johnston delivers two important clarifications in federal sentencing modification practice. First, consistent with Hamer and the Supreme Court’s modern jurisdictionality framework, the Seventh Circuit holds that Rule 35(b)(1)’s one-year filing deadline is not jurisdictional. It is a mandatory claim-processing rule that can be waived—displacing McDowell and preventing automatic dismissal of untimely Rule 35(b) motions where the parties wish to proceed on the merits.

Second, the court reiterates the limited scope of appellate review under § 3742(a) and affirms that district judges may consider a defendant’s postconviction litigation conduct when assessing the sincerity of acceptance of responsibility and calibrating the degree of a substantial-assistance reduction. The opinion carefully preserves guardrails against punishing petitioning activity itself, while recognizing that frivolous, vexatious filings can legitimately undercut an inference of remorse.

The decision will meaningfully shape Rule 35(b) practice in the Seventh Circuit: prosecutors can waive timeliness to reward cooperation outside the one-year window; defendants seeking larger reductions must focus on demonstrating genuine contrition and positive post-sentencing conduct; and district courts should provide clear, targeted explanations tying assistance and § 3553(a) considerations to the chosen reduction. In the broader legal landscape, Johnston is a notable application of Hamer’s jurisdictionality doctrine and a practical reminder that substantial assistance earns consideration, not an entitlement to a particular percentage.

Court: U.S. Court of Appeals for the Seventh Circuit | Date: Oct. 29, 2025 | Panel: Brennan, C.J.; Rovner, J.; Sykes, J. (opinion) | Disposition: Affirmed.

Seventh Circuit Holds Rule 35(b)(1)’s One-Year Deadline Is a Waivable Claim-Processing Rule; District Courts May Weigh Frivolous Postconviction Litigation When Fixing Substantial-Assistance Reductions