What is the test for a motion under Rule 35 to overturn a District Court's denial of a Rule 35 motion?

MultiRegion, United States of America

The following excerpt is from U.S. v. Phipps, 898 F.2d 157 (9th Cir. 1989):

The purpose of Rule 35 is to allow the district court to determine whether the original sentence was unduly harsh. United States v. Rapp, 814 F.2d 1398, 1399 (9th Cir.1987). In addition, a Rule 35 motion allows a court to consider new information that was discovered after the original sentencing. This court reviews the district court's denial of a Rule 35 motion for abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963 (1986). Under the old sentencing procedures, 5 if a sentence was within the statutory limits, it is reviewed only for an abuse of discretion. See United States v. Monaco, 852 F.2d 1143, 1151 (9th Cir.1988), cert. denied, 109 S.Ct. 864 (1989). If the district court fails to individualize the sentence, however, the sentence must be reversed and the defendant must be resentenced. Id.

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