United States v. Rakhmatov 1 In the

21-151 (L)
United States v. Rakhmatov
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM 2021 7
8
A RGUED: F EBRUARY 24, 2022 9
D ECIDED: NOVEMBER 17, 2022 10
11
Nos. 21-151(L), 21-167 (Con) 12
13
U NITED S TATES OF AMERICA, 14
Appellee, 15
16
v. 17
18
A ZIZJON RAKHMATOV, 19
Defendant-Appellant, 20
21
A BDURASUL H ASANOVICH JURABOEV, AKA A BDULLOH IBN H ASAN, 22
A KHROR SAIDAKHMETOV, A BROR H ABIBOV, D ILKHAYOT K ASIMOV, 23
A KMAL ZAKIROV, 24
Defendants. 25
________ 26
27
Appeal from the United States District Court 28
for the Eastern District of New York. 29
________ 30
31
Before: L IVINGSTON, Chief Judge, K EARSE and WALKER , Circuit Judges. 32
________ 33
In these appeals, Azizjon Rakhmatov challenges the sentence 34
imposed following his guilty plea for conspiring to support a terrorist 35

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2 21-151(L), 21-167(Con)
group (No. 21-151) and the denial of his Federal Rule of Criminal 1
Procedure 35(a) motion to correct the sentence (No. 21-167). In this 2
opinion, we address whether the Rule 35(a) motion is barred by the 3
appeal waiver in his plea agreement. Rakhmatov argues that the 4
district court erred in denying his motion to correct its alleged 5
sentencing errors. We disagree, and DISMISS the appeal in No. 21- 6
167. We address Rakhmatov’s remaining arguments in a summary 7
order filed concurrently with this opinion. 8
________ 9
10
L AWRENCE MARK S TERN, Esq., New York, New 11
York, for Defendant-Appellant Azizjon Rakhmatov. 12
D AVID K. K ESSLER , Assistant United States 13
Attorney (Susan Corkery, Douglas M. Pravda, J. 14
Matthew Haggans, Assistant United States 15
Attorneys, on the brief), for Jacquelyn M. Kasulis, 16
Acting United States Attorney for the Eastern 17
District of New York, Brooklyn, New York, for 18
Appellee United States of America. 19
________ 20
JOHN M. WALKER , JR ., Circuit Judge: 21
In these appeals, Azizjon Rakhmatov challenges the sentence 22
imposed following his guilty plea for conspiring to support a terrorist 23
group (No. 21-151) and the denial of his Federal Rule of Criminal 24
Procedure 35(a) motion to correct the sentence (No. 21-167). In this 25
opinion, we address whether the Rule 35(a) motion is barred by the 26
appeal waiver in his plea agreement. Rakhmatov argues that the 27
district court erred in denying his motion to correct its alleged 28
sentencing errors. We disagree, and DISMISS the appeal in No. 21- 29
167. We address Rakhmatov’s remaining arguments in a summary 30
order filed concurrently with this opinion. 31

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3 21-151(L), 21-167(Con)
BACKGROUND 1
In 2019, Appellant Rakhmatov pleaded guilty in the Eastern 2
District of New York (Kuntz, J.) to conspiring to provide material 3
support to the terrorist group ISIS in violation of 18 U.S.C. § 2339B. 4
He pleaded pursuant to a plea agreement in which he agreed not to 5
“file an appeal or otherwise challenge” his sentence so long as he was 6
sentenced to 150 months or less of imprisonment.1 We will refer to 7
this provision in the plea agreement as the “appeal waiver.” 8
In January 2021, the district court sentenced Rakhmatov to 150 9
months’ imprisonment and lifetime supervised release, accompanied 10
by several special conditions. Three days later, Rakhmatov filed a 11
letter objecting to his term of imprisonment. He urged the district 12
court to “correct the sentence” or resentence him within 14 days, 13
citing Federal Rule of Criminal Procedure 35(a).2 The district court 14
“denied” the motion. Rakhmatov then appealed his sentence (No. 21- 15
151) and the denial of his Rule 35(a) motion (No. 21-167). 16
On appeal, a motions panel of this court granted in part the 17
government’s motion to dismiss, holding that Rakhmatov’s appeal of 18
his term of imprisonment was barred by his plea agreement. The 19
panel permitted the challenge to proceed, however, as to his 20
supervised release, the special conditions, and the district court’s 21
denial of his Rule 35(a) motion, on the basis that they were not 22
covered by the appeal waiver. 23
1 App. 151.
2 Id. at 444. Rule 35(a) states that “[w]ithin 14 days after sentencing, the
court may correct a sentence that resulted from arithmetical, technical, or
other clear error.”

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4 21-151(L), 21-167(Con)
DISCUSSION 1
At issue in this opinion is the letter Rakhmatov filed three days 2
after his sentencing. This letter was not styled as a motion but rather 3
“stat[ed] Mr. Rakhmatov’s objections to the sentence imposed.”3 It 4
argued that the district court had failed to properly apply the 18 5
U.S.C. § 3553(a) sentencing factors and improperly issued a “blanket 6
rejection” of his objections to the presentence report.4 The letter 7
concluded by urging the district court to correct Rakhamtov’s 8
sentence or resentence him, citing Rule 35(a). 9
The district court construed the letter as a motion brought 10
under Rule 35(a). It “denied” the motion on two grounds: (1) the 11
letter’s objections could not be raised under Rule 35(a), and (2) 12
Rakhmatov’s appeal waiver, which stated that he would not “file an 13
appeal or otherwise challenge” his sentence,5 barred him from bringing 14
a Rule 35(a) motion.6 On appeal, Rakhmatov argues that the letter 15
was a Rule 35(a) motion that was improperly denied.7 The 16
government responds that his appeal waiver barred him from making 17
a Rule 35(a) motion and that the letter’s objections were not 18
3 App. at 443.
4 Id.
5 Id. at 151 (emphasis added).
6 Special App. 13. The district court characterizes its disposition as a
denial, but it is more properly a dismissal. See, e.g., United States v. Borden,
16 F.4th 351, 356 (2d Cir. 2021) (dismissing a challenge to a sentence that is
barred by an appeal waiver).
7 In his opening brief, Rakhmatov suggests, in the alternative, that his
post-sentencing letter was not a Rule 35(a) motion but an objection at
sentencing. We need not address this argument because, as the motions
panel held, any challenge to the term of imprisonment itself is barred by his
appeal waiver.

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5 21-151(L), 21-167(Con)
redressable through Rule 35(a). Consistent with the district court and 1
the litigants on appeal, we treat Rakhmatov’s post-sentencing letter 2
as a Rule 35(a) motion. Therefore, we must decide whether the appeal 3
waiver prohibits his Rule 35(a) motion. 4
Rule 35(a) allows the district court to correct a sentence that 5
contains an “arithmetical, technical, or other clear error.”8 We have 6
repeatedly stated, quoting the rule’s advisory committee notes, that it 7
“is intended to be very narrow and to extend only to those cases in 8
which an obvious error or mistake has occurred in the sentence.”9 It 9
is not “meant to allow the district court to reopen issues previously 10
resolved at the sentencing hearing through the exercise of the court’s 11
discretion with regard to the application of the sentencing guidelines, 12
or to reconsider the application or interpretation of the sentencing 13
guidelines.”10 District courts have invoked Rule 35(a) to, for example, 14
correct a restitution award that was initially calculated incorrectly.11 15
On the other hand, disputes about the application of the sentencing 16
guidelines fall “outside the very narrow scope of the rule.”12 17
In this case, Rakhmatov’s motion did not identify any 18
arithmetical, technical, or similar errors with the sentence. Instead, 19
he alleged that the district court failed to properly apply the 20
sentencing factors and failed to adequately consider his objections, 21
8 Fed. R. Crim. P. 35(a).
9 United States v. Donoso, 521 F.3d 144, 146 (2d Cir. 2008) (per curiam)
(quoting United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995), itself
quoting Fed. R. Crim. P. 35, 1991 advisory committee’s note) (abrogated on
different grounds).
10 United States v. DeMartino, 112 F.3d 75, 79 (2d Cir. 1997) (quotation
marks omitted).
11 See United States v. Spallone, 399 F.3d 415, 419 (2d Cir. 2005).
12 Califano v. United States, 2000 WL 730398, at *2 (2d Cir. 2000).

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6 21-151(L), 21-167(Con)
resulting in a prison term that was “unreasonable, cruel and unusual, 1
. . . and greater than necessary to accomplish [its] purpose.”13 The 2
motion’s arguments thus plainly fall outside of Rule 35(a)’s “very 3
narrow” scope.14 Instead of filing a genuine Rule 35(a) motion, 4
Rakhmatov simply stated his objections to the district court’s 5
sentence. 6
We have not yet decided, and need not decide today, whether 7
an appeal waiver can bar a motion to correct a “technical, 8
arithmetical, or other clear error,” as specified in Rule 35(a).15 Simply 9
citing Rule 35(a), however, cannot allow a defendant to obtain 10
substantive review that would otherwise be barred by an appeal 11
waiver. If Rule 35(a) were to permit such end-runs, it would 12
functionally deprive the government of the benefit of the waiver. As 13
a result, appeal waivers “would cease to have value as a bargaining 14
chip in the hands of defendants.”16 Accordingly, we hold that when 15
a challenge to a prison sentence purportedly under Rule 35(a) does 16
not fall within the narrow scope of Rule 35(a), an appeal waiver can 17
bar consideration of the motion. 18
The terms of this appeal waiver plainly bar consideration of the 19
motion. As part of his plea agreement, Rakhmatov agreed not to “file 20
an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. 21
§ 2255 or any other provision, the conviction or sentence” provided he 22
13 App. 444.
14 Donoso, 521 F.3d at 146; see also United States v. Escobar, 542 F. App’x
38, 41 (2d Cir. 2013) (suggesting that arguments related to a sentence’s
procedural and substantive reasonability are not appropriately raised in a
Rule 35(a) motion).
15 Fed. R. Crim. P. 35(a).
16 United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010) (quotation marks
omitted).

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7 21-151(L), 21-167(Con)
was sentenced to 150 months’ imprisonment or less.17 The district 1
court sentenced him to 150 months in prison. Although he disagrees 2
with this sentence, he cannot use Rule 35(a) to overcome his waiver. 3
His appeal from the decision on the motion must be dismissed.18 4
Rakhmatov tries to avoid this outcome by insisting that his 5
motion falls within the parameters of Rule 35(a). This argument is 6
without merit. First, he cites precedent suggesting that the rule is 7
“broadly available” to correct unjust or unlawful sentences.19 All of 8
the cases he cites, however, are either out of circuit or analyze 9
previous versions of Rule 35 that allowed courts to correct any 10
“illegal” sentence.20 As discussed, our precedent and the advisory 11
committee’s comments make clear that the current Rule 35(a) is far 12
narrower in scope. 13
Next, Rakhmatov points to United States v. Waters, which held 14
that Rule 35(a) permitted a district court to correct a sentence when it 15
had failed to consider a Sentencing Guidelines policy statement in 16
setting its original sentence.21 Rakhmatov equates this to the district 17
17 App. 151 (emphasis added).
18 A motions panel previously declined to dismiss Rakhmatov’s appeal
as to this issue. In permitting the appeal to proceed, however, the panel did
not discuss whether Rakhmatov had brought a valid Rule 35(a) motion. In
any case, our authority to reconsider issues decided by a motions panel is
well established. See, e.g., United States v. Brown, 623 F.3d 104, 111–12 (2d
Cir. 2010); Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999).
19 United States v. Thompson, 261 F.2d 809, 810 (2d Cir. 1958); see also
United States v. Braun, 382 F. Supp. 214 (S.D.N.Y. 1974); United States v.
Himsel, 951 F.2d 144 (7th Cir. 1991); Benson v. United States, 332 F.2d 288 (5th
Cir. 1964); United States v. Patrick Petroleum Corp. of Michigan, 703 F.2d 94
(5th Cir. 1982).
20 See Himsel, 951 F.2d at 146 (quoting the previous rule).
21 84 F.3d 86, 90 (2d Cir. 1996) (per curiam).

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8 21-151(L), 21-167(Con)
court’s alleged failure to properly apply the sentencing factors in his 1
case. In Waters, however, we emphasized that the “district court [had] 2
neglected to consider the policy statement at all,” contrary to the law’s 3
requirements, because it was unaware “of the policy statement’s 4
existence.”22 Indeed, the district court stated on the record that it had 5
not taken the statement into account when imposing the original 6
sentence.23 In this case, the district court explicitly invoked and 7
applied the § 3553(a) sentencing factors when arriving at 8
Rakhmatov’s sentence. Rakhmatov asserts that the district court did 9
not “actually” apply the factors,24 but this amounts to an objection to 10
its analysis, not an unmistakable error as in Waters. Rakhmatov’s 11
arguments are plainly beyond the scope of Rule 35(a) and thus are 12
barred by his appeal waiver. 13
CONCLUSION 14
For the foregoing reasons, we DISMISS Rakhmatov’s appeal 15
from the denial of his Rule 35(a) motion (No. 21-167). We address his 16
appeal in No. 21-151 in the concurrently filed summary order. 17
22 Id. at 90–91.
23 Id. at 91.
24 Appellant’s Brief at 53.

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