Scott Rothstein, formerly of Rothstein Rosenfeldt Adler in Fort Lauderdale, now a federal inmate. (Photo: Melanie Bell/ALM)

The U.S. Court of Appeals for the Eleventh Circuit shot down an attempt by disbarred attorney and federal prisoner Scott Rothstein to reduce his 50-year sentence for running a $1.2 billion Ponzi scheme—among the largest in history.

Rothstein was disbarred after pleading guilty to wire fraud, racketeering, conspiracy to commit money laundering and conspiracy to commit mail and wire fraud after it emerged he used his  then-Fort Lauderdale law firm Rothstein Rosenfeldt Adler to perpetuate the scheme.

Rothstein argued that the U.S. Attorney's Office breached its plea agreement by withdrawing a motion that under Federal Rule of Criminal Procedure 35 could have allowed his sentence to be reduced if he cooperated fully.

The government said it backed out because Rothstein had provided false information. But Rothstein disputed that, requesting an evidentiary hearing and claiming he'd been of "extraordinary assistance," according to the opinion.

The government filed the motion almost a year after Rothstein's sentencing, though it served as a placeholder at the time because his cooperation wasn't yet complete. If Rothstein didn't comply, the motion said, it could be withdrawn.

Rothstein claimed he wasn't properly warned because his cooperation and plea agreements didn't include the word "withdraw."

But the Eleventh Circuit was unconvinced, finding the cooperation agreement made no guarantees. It also pointed out that Rothstein's attorney signed the Rule 35 motion, which explained the government's ability to withdraw.

"Rothstein cannot credibly claim that he had no idea that withdrawal was a possibility," the opinion said.

Rothstein's attorney Marc Nurik in Boca Raton did not immediately respond to a request for comment.

Rothstein had pointed to a case where an appeals court found the government shouldn't have been allowed to withdraw a Rule 35 motion, USA v. Padilla, but the Eleventh Circuit found some crucial differences.

The plea agreement in that case had said the government would file the motion if the defendant cooperated, whereas in Rothstein's case the government had only promised to consider filing it. There was no mention of the possibility of withdrawal in Padilla, and the defendant's information had already proved helpful, while in Rothstein's case that was yet to be determined.

The Eleventh Circuit also found it wasn't its place to question the government's moves unless they were unconstitutional.

"This court has emphasized its unwillingness to intrude on the prosecutorial discretion provided to the government in making substantial-assistance motions," the opinion said.

An evidentiary hearing was therefore pointless, according to the ruling, because the government had full discretion in deciding whether to withdraw the motion.

"No facts that Rothstein can allege regarding his actual level of cooperation would disturb the government's unilateral conclusion that his help was insufficient to warrant a substantial-assistance motion," the opinion said.

Eleventh Circuit Judge Gerald Bard Tjoflat wrote the opinion, backed by Judges William Pryor and Britt Grant.

Read the ruling:

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