United States of America v. Aaron J. Thorpe

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2024 Decided August 26, 2025
No. 23-3027
UNITED STATES OF AMERICA,
APPELLEE
v.
AARON J. THORPE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00131-1)
Howard B. Katzoff, appointed by the court, argued the
cause and filed the briefs for appellant.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Matthew M.
Graves, U.S. Attorney, and Chrisellen R. Kolb and Peter S.
Smith, Assistant U.S. Attorneys.
Keenan H. Roarty, appointed by the court, argued the
cause as amicus curiae in support of the district court’s
February 21, 2023, memorandum opinion and order below.
With him on the brief was Sean Marotta, appointed by the
court.

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Before: RAO and WALKER, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: Federal Rule of Criminal Procedure
48(a) authorizes the government to “dismiss an indictment,
information, or complaint” “with leave of court.” In this case,
the government moved to dismiss most of Aaron Thorpe’s
criminal convictions after the district court had entered
judgment and Thorpe had exhausted appellate review. The
district court denied the government’s motion to dismiss.
Because Rule 48(a) does not permit the government to
“dismiss” criminal convictions while a judgment remains in
place, we affirm the district court’s order.
I.
As we have previously recounted, in 2013, Thorpe and
Melvin Knight were arrested and charged with several offenses
relating to an armed kidnapping in the District of Columbia.
See United States v. Knight (“Knight I”), 824 F.3d 1105, 1108
(D.C. Cir. 2016); United States v. Knight (“Knight II”), 981
F.3d 1095, 1099 (D.C. Cir. 2020). The prosecutor offered the
defendants a plea deal containing a single count of assault with
a deadly weapon. The offer was “wired,” meaning both
defendants had to accept or else it would be withdrawn. Thorpe
wanted to take the deal, but Knight, relying on advice from
counsel, rejected it. The government rescinded the offer, and
the defendants were subsequently convicted on ten counts by a
federal jury. Thorpe received 300 months of imprisonment;
Knight received 268 months.
The defendants argued on direct appeal that they had
received ineffective assistance of counsel regarding the

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original plea offer. We held that Knight’s counsel had rendered
constitutionally deficient assistance. Knight II, 981 F.3d at
1102–07. But we concluded that Thorpe’s inability to accept
the deal was caused by the ineffectiveness of Knight’s counsel,
rather than his own, and therefore that Thorpe had not suffered
a Sixth Amendment violation. Id. at 1107–08. We thus
affirmed Thorpe’s convictions and remanded Knight’s case
with instructions for the district court to order the government
to extend the original offer to Knight. Acknowledging the
apparent unfairness of this result to Thorpe, we stated the
government had other means to “ameliorate any injustice” and
that “[e]ven now, the prosecution may seek dismissal of some
or all of the charges against Thorpe under Rule 48(a).” Id. at
1109 (citing Rinaldi v. United States, 434 U.S. 22 (1977) (per
curiam)).
The government did not, however, make any motion
before this court or the district court to vacate Thorpe’s
convictions. Cf. Rinaldi, 434 U.S. at 25 n.8 (recognizing an
appellate court may vacate a judgment on direct appeal and
remand for the entry of a Rule 48(a) motion). Knight,
meanwhile, moved for expedited issuance of the mandate so he
could sooner benefit from the decision. Thorpe and the
government did not oppose Knight’s request and declined to
seek Supreme Court review of our decision. We accordingly
issued the mandate. On remand, Knight was released
immediately because he had already served the maximum
sentence available under the original deal.
Over one year later, Thorpe sought postconviction relief
under 28 U.S.C. § 2255. Although the government opposed
this motion, it filed a separate motion under Rule 48(a) to
dismiss all charges against Thorpe except the charge contained
in the original plea offer. The government argued dismissal
would serve the interests of justice by eliminating the disparity

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between Thorpe’s and Knight’s sentences. Thorpe consented
to the motion.
The district court declined to “dismiss” Thorpe’s
convictions. The court explained that Rule 48(a) requires a
court to ensure dismissal of a prosecution “adequately protects
the public interest” before granting the motion. United States
v. Thorpe, No. 13-131-1, 2023 WL 2139399, at *4 (D.D.C.
Feb. 21, 2023) (quoting United States v. Ammidown, 497 F.2d
615, 622 (D.C. Cir. 1973)). While recognizing the Executive
has broad constitutional authority over charging decisions, the
court found that the reasons supporting this discretion “are at
their lowest ebb” when a defendant has been convicted and
sentenced and has exhausted appellate review. Thorpe, 2023
WL 2139399, at *6, *4. Once a judgment is final, any effort by
the government to “dismiss” charges infringes on the district
court’s “constitutional prerogative to fashion an appropriate
sentence” and ensure that it is carried out. Id. at *6. Having
concluded the dismissal of Thorpe’s convictions would
threaten the constitutional separation of powers and fail to
serve the public interest, the district court denied the
government’s Rule 48(a) motion.1
Thorpe appealed. Because the government declined to
defend the district court’s ruling on appeal, we appointed
Keenan Roarty as amicus to argue in favor of the decision.2 We
review the denial of a Rule 48(a) motion for abuse of
discretion. See Rinaldi, 434 U.S. at 32.
1 The district court also denied Thorpe’s section 2255 motion. Thorpe
separately appealed this ruling, but we declined to issue a certificate
of appealability and dismissed the appeal.
2 Mr. Roarty has very ably discharged his duties, and we thank him
and Sean Marotta, co-counsel of record, for their assistance.

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II.
We affirm the district court’s denial of the government’s
motion. Considering the text and structure of Rule 48(a), its
common law precursor, and the constitutional separation of
powers, the government cannot dismiss criminal charges when
a judgment is final. Unless a final judgment is vacated or
otherwise set aside, there is no prosecution to “dismiss” and
Rule 48(a) provides no authority to vacate the judgment.
Because Thorpe’s judgment was final, the government could
not rely on Rule 48(a) alone to vacate it.
A.
On appeal, Thorpe and the government argue the district
court abused its discretion in denying the unopposed Rule 48(a)
motion.
We have emphasized that “decisions to dismiss pending
criminal charges” under Rule 48(a), when it applies, “lie
squarely within the ken of prosecutorial discretion.” United
States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir.
2016). As such, a district court may deny leave of court in only
“extremely limited circumstances in extraordinary cases.”
United States v. Hamm, 659 F.2d 624, 629 (5th Cir. 1981); see
also Fokker Servs., 818 F.3d at 742 (explaining Rule 48(a) does
not “confer any substantial role for courts in the determination
whether to dismiss charges”).
No such extraordinary circumstances appear to be present
in this case, given that the motion was unopposed and there is
no evidence the government acted improperly or in bad faith.
See Rinaldi, 434 U.S. at 29 n.15 (“The principal object of the
‘leave of court’ requirement is apparently to protect a
defendant against prosecutorial harassment … when the
Government moves to dismiss an indictment over the

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defendant’s objection.”). If Rule 48(a) allowed for dismissal at
this stage of the proceedings, we would be hard pressed not to
conclude that denial of the motion was an abuse of discretion.
Amicus, however, defends the district court’s decision on
the ground that Rule 48(a) does not permit the government to
vacate criminal convictions once they have become final. This
appears to be a legal question of first impression, perhaps in
part because, as the district court observed, a Rule 48(a) motion
in these circumstances is a “highly unusual request.” Thorpe,
2023 WL 2139399, at *4. To resolve this appeal, we must take
up this “antecedent” and “ultimately dispositive” question
whether Rule 48(a) can be used when a final judgment remains
in place. Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990).
Thorpe and the government contend we cannot reach this
issue because they did not raise it below, and therefore it cannot
be raised for the first time on appeal by amicus. We are
generally limited to the issues raised by the parties, and we will
not consider an issue pressed for the first time on appeal by an
amicus. See FTC v. Phoebe Putney Health Sys., Inc., 568 U.S.
216, 226 n.4 (2013). But the principles of party presentation do
not bar review of this issue. Although the parties agreed Rule
48(a) allowed for dismissal of Thorpe’s convictions, the district
court was not required to accept their understanding of the Rule
because courts are not bound by parties’ stipulations of law.
See Estate of Sanford v. Comm’r, 308 U.S. 39, 51 (1939) (“We
are not bound to accept, as controlling, stipulations as to
questions of law.”); U.S. Nat’l Bank of Or. v. Indep. Ins. Agents
of Am., Inc., 508 U.S. 439, 447 (1993) (holding that parties may
not, “by agreeing on the legal issue presented,” prevent a court
from considering the validity of the law governing the case).
The district court was “not limited to the particular legal
theories advanced by the parties, but rather retain[ed] the
independent power to identify and apply the proper

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construction of governing law.” Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991).
Presented with the government’s Rule 48(a) motion, the
district court properly considered whether the government had
authority to dismiss Thorpe’s convictions and whether the
court should give leave for a dismissal in these circumstances.
Because the issue was raised and addressed by the district
court, we may consider it here.3 See Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 379 (1995) (recognizing that a
reviewing court may reach a claim “not raised by [the]
petitioner below” when “it was addressed by the court below”).
B.
Turning to the merits, we must decide whether Rule 48(a)
empowers the government to dismiss criminal charges after the
district court has entered judgment and the defendant’s
convictions have become final. Thorpe and the government
emphasize that the power to prosecute lies exclusively with the
Executive, and they maintain that, understood against this
constitutional background, Rule 48(a) allows the government
to dismiss a prosecution even when a conviction is final. We
3 For similar reasons, United States v. Smith, 467 F.3d 785 (D.C. Cir.
2006), does not resolve Thorpe’s forfeiture argument. In Smith, the
district court granted a Rule 48(a) motion without analyzing whether
the Rule could be used to effectively vacate a final conviction.
Although we expressed doubt as to whether Rule 48(a) could be used
in such circumstances, we declined to reach this objection because
the defendant had forfeited it, id. at 789, and the district court had
not raised the issue. By contrast, here the district court denied the
government’s Rule 48(a) motion in part on the ground that it could
not properly be used to vacate a final conviction. See Thorpe, 2023
WL 2139399, at *4–6. Because the district court raised the issue, it
is appropriate for us to consider it.

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disagree. At this stage of the proceedings, there is no longer a
prosecution to dismiss, which means Rule 48(a) provides no
authority for the government to vacate Thorpe’s convictions.
This conclusion follows from the text of Rule 48(a), its
common law foundations, and the separation of powers
between the Executive and the Judiciary.
Rule 48(a) provides: “The government may, with leave of
court, dismiss an indictment, information, or complaint. The
government may not dismiss the prosecution during trial
without the defendant’s consent.” Fed. R. Crim. P. 48(a).
It is well established that Rule 48(a) largely adopted the
common law procedure of nolle prosequi, adding only the
leave of court requirement. See Ammidown, 497 F.2d at 619–
20; 3B Wright & Miller, Fed. Prac. & Proc. Crim. § 801 (4th
ed. May 20, 2025 update). Literally translated “I am unwilling
to prosecute,” the nolle prosequi allowed the government to
dismiss pending charges in a criminal prosecution.
Hirabayashi v. United States, 828 F.2d 591, 607 (9th Cir.
1987). Rule 48(a) codifies this authority and permits the
government to dismiss a prosecution if it obtains leave of court.
In the criminal law, however, a prosecution does not
extend indefinitely. A prosecution lasts only until the court
enters the judgment. See Prosecution, Noah Webster, An
American Dictionary of the English Language (1828) (“[T]he
process of exhibiting formal charges against an offender before
a legal tribunal, and pursuing them to final judgment.”). The
entry of judgment marks the consummation of criminal
proceedings for the prosecution. See United States v. Mayer,
235 U.S. 55, 70 (1914) (holding that when “final judgment of
conviction had been entered and sentence had been imposed,”
“[t]he judgment was subject to review in the appellate court,
but so far as the trial court was concerned it was a finality”).

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Reflecting the nature and limits of a prosecution, Rule
48(a) empowers the government to dismiss criminal charges
only when a prosecution is pending. The Rule authorizes the
dismissal of an “indictment, information, or complaint.” All of
these are charging instruments used to initiate a prosecution.
See Indictment, Black’s Law Dictionary (12th ed. 2024) (“The
formal written accusation of a crime, made by a grand jury and
presented to a court for prosecution.”); Information, id. (“A
formal criminal charge made by a prosecutor without a grand-
jury indictment.”); Complaint, id. (“A formal charge accusing
a person of an offense.”). And Rule 48(a) equates the dismissal
of a charging instrument with the termination of “the
prosecution.”4 The best reading of Rule 48(a) is that the
government can dismiss criminal charges only while a
prosecution is ongoing. Once the court has entered judgment,
the prosecution comes to an end, and the government loses its
ability to dismiss the charges (unless the judgment is vacated
by some other means, as we discuss below).
The government maintains that it can seek to “dismiss”
Thorpe’s final conviction, which is effectively a claim that the
government may move at any point to vacate a criminal
judgment. But Rule 48(a), standing alone, provides no
authority to vacate a judgment.5 By contrast, other rules of
4 An earlier version of the Rule made this connection more explicit,
providing that “the prosecution shall … terminate” upon the entry of
a Rule 48(a) motion. Fed. R. Crim. P. 48(a) (1946). The change in
language was “intended to be stylistic only.” Fed. R. Crim. P. 48(a)
advisory committee’s note to 2002 amendment.
5 To support its contrary reading, the government points to Smith,
where we observed that “district courts retain some reservoir of
jurisdiction” under 18 U.S.C. § 3231 “to entertain motions after final
judgment.” 467 F.3d at 788. But a district court’s subject matter
jurisdiction and the availability of certain motions are separate

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criminal procedure explicitly provide mechanisms for vacating
a judgment. For example, Rule 33(a) authorizes a defendant to
move, within certain time limits, for the court to “vacate any
judgment and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). Rule 32(j) likewise
recognizes a defendant’s right to appeal his conviction or
sentence once the judgment has been entered. See Fed. R. Crim.
P. 32(j). These rules specifically provide mechanisms for
challenging a court’s judgment, but Rule 48(a) does not, which
further confirms that the government cannot rely solely on its
dismissal authority to vacate a judgment.
This interpretation is also consistent with the limits of
nolle prosequi, which did not allow for dismissal of a
prosecution after a court entered judgment. Because Rule 48(a)
largely adopted the nolle prosequi, courts frequently look to the
common law to understand the scope of the authority conferred
by Rule 48(a). See, e.g., United States v. Smith, 467 F.3d 785,
789 (D.C. Cir. 2006); Hirabayashi, 828 F.2d at 607–08.
At common law, a prosecutor’s right to enter a nolle
prosequi, and the consequences of this action, turned on the
stage of criminal proceedings. Before the jury was empaneled,
a prosecutor had absolute discretion to enter a nolle prosequi
and dismiss pending charges, without bar to subsequent
prosecution. See Confiscation Cases, 74 U.S. (7 Wall.) 454,
457 (1869); see also 1 Joel Prentiss Bishop, Commentaries on
the Criminal Law § 856 (3d ed. 1865) (explaining the
prosecution could enter a nolle prosequi “at any time” before
the jury was empaneled). Once the jury was empaneled and
matters. While Smith held district courts have jurisdiction under
section 3231 even after final judgment, it expressly declined to
answer whether such jurisdiction could be used by the government
to vacate the judgment relying only on Rule 48(a). See id. at 789.

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jeopardy attached, the prosecution could not enter a nolle
prosequi without obtaining the defendant’s consent; otherwise,
the defendant would be acquitted of the dismissed charges. See
United States v. Shoemaker, 27 F. Cas. 1067, 1069–70 (C.C.D.
Ill. 1840) (No. 16,279); see also Francis Wharton, A Treatise
on Criminal Pleading & Practice § 383 (8th ed. 1880) (“[I]f the
case be withdrawn when on trial, without the defendant’s
consent, this operates as an acquittal in all cases in which the
defendant was in jeopardy at the trial.”). Following the jury’s
verdict, the prosecutor could again enter a nolle prosequi
without the defendant’s consent, although doing so would bar
future prosecution. See United States v. Brokaw, 60 F. Supp.
100, 102 (S.D. Ill. 1945); see also 1 Bishop, supra, § 858.
After the court entered judgment, however, a nolle
prosequi could no longer be filed. “[T]he right of nolle
prosequi emanate[d] from the Executive’s power to initiate a
criminal prosecution and to terminate a pending prosecution.”
Korematsu v. United States, 584 F. Supp. 1406, 1411 (N.D.
Cal. 1984) (emphasis added). As a consequence, the power to
enter a nolle prosequi did not “remain in existence after a
criminal prosecution … c[a]me to an end.” Commonwealth v.
Dascalakis, 140 N.E. 470, 473 (Mass. 1923), overturned on
other grounds, Commonwealth v. Bly, 830 N.E.2d 1048 (Mass.
2005). The government could file a nolle prosequi only “until
such time as judgment is entered and sentence imposed.”
Brokaw, 60 F. Supp. at 102; see also Wharton, supra, § 383
(explaining a nolle prosequi “may, at common law, be entered
at any time before judgment”); 1 Bishop, supra, § 858
(explaining a nolle prosequi could be entered “[a]fter a
conviction, and before judgment”); Nolle Prosequi, 13
Encyclopaedia of Forms & Precedents for Pleading & Practice
173 (Thomas E. O’Brien ed., 1901) (“A nolle prosequi may be
entered after verdict and before judgment.”). At common law,
it was well established that the Executive’s prerogative to

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dismiss a prosecution ended with the entry of the court’s
judgment.
Constitutional separation of powers also supports reading
Rule 48(a) to preclude the government from using its
“dismissal” authority to vacate final judgments. Article III of
the Constitution vests federal courts with the power to issue
binding judgments in cases and controversies within their
jurisdiction. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
219 (1995) (explaining the “judicial Power is one to render
dispositive judgments”) (cleaned up); William Baude, The
Judgment Power, 96 Geo. L.J. 1807, 1811 (2008) (“[T]he
judicial power is the power to issue binding judgments and to
settle legal disputes within the court’s jurisdiction.”). The
Constitution expressly empowers the President to pardon
criminal offenses. U.S. Const. art. II, § 2, cl. 1. But except for
this limited grant, the Executive has no authority to vacate or
set aside court judgments. See Chicago & S. Air Lines v.
Waterman S.S. Corp., 333 U.S. 103, 113 (1948) (“Judgments
within the powers vested in courts by the Judiciary Article of
the Constitution may not lawfully be revised, overturned or
refused faith and credit by another Department of
Government.”); Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410
(1792) (explaining the Constitution does not authorize the
Executive “to sit as a court of errors on the judicial acts or
opinions” of an Article III court).
Once a court enters judgment, only a “superior court[] in
the Article III hierarchy” can modify or vacate the judgment.6
Plaut, 514 U.S. at 218–19; Miller v. French, 530 U.S. 327, 342
(2000) (same). Rule 48(a) reflects these fundamental
6 In denying the government’s motion, the district court
demonstrated a similar concern for the finality of judicial decrees.
See Thorpe, 2023 WL 2139399, at *4.

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separation of powers principles by authorizing the Executive to
dismiss criminal charges before the court enters judgment.
The plain meaning of Rule 48(a), understood in light of the
common law and against the backdrop of constitutional
separation of powers, is that the government may dismiss a
prosecution only while the prosecution is pending. As
discussed below, Rule 48(a) dismissal authority may be
revived if the judgment is vacated on appeal or otherwise. But
while a judgment is final, the prosecution is no longer pending
and the government has no authority to dismiss charges under
Rule 48(a).
C.
This interpretation of Rule 48(a) is perfectly consistent
with Supreme Court decisions, such as Rinaldi v. United States,
which allow the government to pursue a Rule 48(a) dismissal
on direct appeal. Although Thorpe and the government attempt
to extend these decisions to permit Rule 48(a) dismissals after
appellate review has concluded, such an expansion is
inconsistent with the statutory authority relied on by the Court.
In Rinaldi, the Supreme Court recognized that appellate
courts have authority to vacate a district court’s judgment and
remand “to allow the Government to dismiss the indictment.”
434 U.S. at 25 n.8. The Court grounded its authority to vacate
a judgment in 28 U.S.C. § 2106, which allows an appellate
court to order further proceedings if it would be “just under the
circumstances.” Id. (quoting 28 U.S.C. § 2106). In other
criminal cases, the Supreme Court has similarly used section
2106 to vacate the judgment and remand with instructions for
the lower court to permit the dismissal of charges under Rule

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48(a).7 See, e.g., Petite v. United States, 361 U.S. 529, 531
(1960) (per curiam) (“The case is remanded to the Court of
Appeals to vacate its judgment and to direct the District Court
to vacate its judgment and to dismiss the indictment.”); Watts
v. United States, 422 U.S. 1032, 1032 (1975) (same); Blucher
v. United States, 439 U.S. 1061, 1061 (1979) (same). These
cases stand for the simple and uncontroversial proposition that
once a judgment has been vacated, the government’s authority
to dismiss the prosecution under Rule 48(a) is effectively
revived, and the motion to dismiss may be considered by the
district court.
Although the government attempts to rely on Rinaldi and
Watts, dismissal was permitted in those cases only because the
appellate court had authority to first vacate the judgment under
section 2106. But section 2106 applies only on direct appeal.
Thorpe has exhausted direct appellate review of his criminal
convictions, and this court no longer has authority under
section 2106 to vacate the judgment and order further
proceedings.8 See Johnson v. Bechtel Assocs. Pro. Corp., D.C.,
7 The Supreme Court has granted such requests when the government
confesses on appeal that a conviction was obtained in violation of
government policy. See Thompson v. United States, 444 U.S. 248,
249–50 (1980) (per curiam) (collecting cases); Rinaldi, 434 U.S. at
25 n.8 (explaining the Court had previously vacated and remanded
in several cases in which the Solicitor General discovered a violation
of Department of Justice policy while the case was pending before
the Court).
8 Nor can Thorpe and the government rely on Smith for the
proposition that Rule 48(a) allows the government to seek dismissal
after the conclusion of appellate review. In Smith, we explained that
district courts have various authorities to modify or vacate a criminal
sentence, but we declined to reach the “question of whether Rule 48
alone can properly be used to vacate a final conviction.” 467 F.3d at

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801 F.2d 412, 415 (D.C. Cir. 1986) (per curiam) (“Issuance of
the mandate formally marks the end of appellate jurisdiction.”).
The authorities to consider this issue have recognized that
a Rule 48(a) motion is no longer available once appellate
review is finished. Korematsu, 584 F. Supp. at 1411 (“[T]he
prosecutor has no authority to exercise his nolle prosequi
prerogatives at common law or to invoke Rule 48(a) after a
person has been subject to conviction, final judgment,
imposition of sentence and exhaustion of all appeals and,
indeed, after a lapse of many years.”); United States v.
Burdeau, 168 F.3d 352, 359 (9th Cir. 1999) (“Under [Rule]
48(a), the government has the power to move to dismiss any
count of the indictment as long as the defendant’s appeal is
pending and the decision is therefore not final.”); 3B Wright &
Miller § 802 (explaining a Rule 48(a) motion may be
entertained “while the case is on direct appeal”). We are aware
of no case (and the parties cite none) holding that a Rule 48(a)
motion may be authorized by an appellate court after a
defendant has exhausted appellate review of his criminal
conviction.
Furthermore, allowing the government to “dismiss”
Thorpe’s convictions after they became final on direct review
would undermine important finality interests. “When the
process of direct review … comes to an end, a presumption of
finality and legality attaches to the conviction and sentence.”
Barefoot v. Estelle, 463 U.S. 880, 887 (1983). The finality of
criminal judgments is a bedrock principle of our criminal
system that ensures justice is administered and wrongdoing is
deterred. See Calderon v. Thompson, 523 U.S. 538, 555 (1998)
789 (emphasis added). We also expressed skepticism about “Rule
48’s applicability post-conviction,” given “both the text of the rule
and its roots in the common law doctrine of nolle prosequi.” Id.

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(“Finality is essential to both the retributive and the deterrent
functions of criminal law.”); Teague v. Lane, 489 U.S. 288, 309
(1989) (plurality opinion) (“Without finality, the criminal law
is deprived of much of its deterrent effect.”). This is yet another
reason to reject the government’s position that its authority to
dismiss a prosecution under Rule 48(a) persists after a criminal
judgment is final.
Because Thorpe has exhausted appellate review and his
convictions are now final, this court has no authority to vacate
the judgment and authorize the entry of a Rule 48(a) motion.9
III.
We acknowledge that the government seeks to correct the
apparent injustice of Thorpe being unable to accept the original
plea deal offered to him, in part because of the ineffective
assistance of his co-defendant’s counsel.10 Although the
government can no longer rely on Rule 48(a), it is not
powerless to afford relief. Article II of the Constitution grants
the President broad and unreviewable authority to pardon
criminal defendants for offenses against the United States. See
9 In holding the government cannot use Rule 48(a) under these
circumstances, we do not address whether the government could
move to dismiss charges under Rule 48(a) after the judgment has
been vacated or set aside under other provisions, such as 28 U.S.C.
§ 2255 or Rule 33.
10 Thorpe and the government claim the government was only
following our suggestion in Knight II when it filed its Rule 48(a)
motion. But Knight II cited Rinaldi, which tied the availability of a
Rule 48(a) motion to the existence of an ongoing appeal that resulted
in vacatur of the judgment under section 2106. See Knight II, 981
F.3d at 1109. Section 2106 is not available here, and, as we have
already observed, the government made no attempt to disturb the
judgment against Thorpe before it became final.

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U.S. Const. art. II, § 2, cl. 1; see also United States v. Klein, 80
U.S. (13 Wall.) 128, 147 (1871) (“To the executive alone is
intrusted the power of pardon; and it is granted without limit.”).
The Executive need not “enlist the Judiciary” and ask the court
“to depart from standard practices and procedures” to afford
relief under these circumstances. Grzegorczyk v. United States,
142 S. Ct. 2580, 2581 (2022) (statement of Kavanaugh, J.).
Moreover, criminal defendants have other means to
challenge the legality of their convictions or the duration of
their confinement. A defendant whose conviction “was
imposed in violation of the Constitution or laws of the United
States,” or otherwise was beyond the authority of the court,
may seek postconviction relief under 28 U.S.C. § 2255(a).
Likewise, a defendant or the government may move for a
reduction of sentence if “extraordinary and compelling reasons
warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A). And in
narrow circumstances, a defendant may seek a writ of coram
nobis from the district court “to redress a fundamental error.”
United States v. Denedo, 556 U.S. 904, 911 (2009). Although
we take no position on whether Thorpe could successfully
invoke these procedures, their availability demonstrates that a
defendant is not completely without remedy after his
convictions become final.
Whatever avenues for relief exist, at this juncture, Rule
48(a) is not one of them. Rule 48(a) recognizes the Executive’s
broad authority over the initiation and termination of criminal
prosecutions. Once criminal proceedings are complete and a
judgment is final, the government cannot use its power over
prosecutions to abate the harshness of the law.
* * *
Because Thorpe’s convictions are final, the government
cannot rely solely on a Rule 48(a) motion to vacate them. We

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therefore affirm the district court’s denial of the government’s
motion.
So ordered.

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