In United States v. Erica Kelley Day, No. 24-13312 (11th Cir. Dec. 23, 2025) (Pryor CJ, Lagoa, Kidd)—also a government appeal—the Court held that a district court, when considering a government motion to depart from a statutory minimum for substantial assistance on one count, pursuant to 18 U.S.C. § 3553(e) & USSG 5K1.1, may not depart as to another count that is not subject to the government’s § 3553(e) motion.
The Court also held that the government had not breached the plea agreement by filing a 5K motion only as to one count, because the plea agreement “referred only to section 5K1.1 and Rule 35(b),” “silence is not ambiguity,” “no promise was made about filing a § 3553(e) motion,” and the agreement “confirmed the government’s discretion to determine ‘the extent of any such departure request.’”
The Court thus vacated Day’s sentence as to the count for which no § 3553(e) motion was filed and remanded for resentencing.
Kidd wrote a concurrence outlining Day’s extraordinary recovery, rehabilitation, and cooperation post-arrest. I recommend reading it in full (page 8-10 of the below PDF). Referring to Abudu’s Perez concurrence, Kidd agreed that the “asymmetry” in § 3553(e) “warrants reflection,” and closed by noting that “there remains one actor with nearly unbounded discretion both ways and who still has the opportunity to exercise that discretion in Day’s case on remand: the federal prosecutor. I hope that Ms. Bedwell, or whomever succeeds her, uses the discretion afforded to her by the people of the United States to reach a just result in Day’s case.”
Day opinion here: https://media.ca11.uscourts.gov/opinions/pub/files/202413312.pdf