United States v. John Doe, 93 F.3d 67, 2d Cir. (1996)

93 F.
3d 67
UNITED STATES of America, Appellee,

v.
John DOE, Defendant-Appellant.
No. 1905, Docket 96-1081.
United States Court of Appeals,

Second Circuit.
Argued Aug. 8, 1996.
Decided Aug. 21, 1996.
James O. Druker, Kase and Druker, Garden City (Paula Schwartz Frome,
of counsel), for Defendant-Appellant.
Zachary W. Carter, U.S. Attorney, E.D.N.Y. (Susan Corkery, Eric D.
Bernstein, of counsel), for Appellee.
Before MESKILL, CALABRESI, and PARKER, Circuit Judges.
PER CURIAM:
On June 24, 1992, Doe pleaded guilty to a one-count indictment charging him
with conspiracy to possess with intent to distribute cocaine in violation of 21
U.S.C. 841(b)(1)(A), 846. On November 6, 1992, the district court
sentenced Doe to a sixteen-year term of imprisonment. After his guilty plea,
Doe began to cooperate with the government. On October 18, 1993, the
government filed a motion to reduce Doe's sentence under Fed.R.Crim.P. 35(b).
Such a motion filed by the government within one year of the imposition of the
original sentence allows the district court to reduce the sentence for substantial
assistance rendered to the government after sentencing. The parties do not
contest that Doe provided significant assistance, personally and through thirdparty intermediaries, both before the submission of the motion and for two
years following it. On January 19, 1996, the court reduced Doe's sentence from
sixteen to eleven years based on the 35(b) motion. Doe appeals the extent of
that reduction.
The defendant's appeal raises a question of first impression in this circuit--
whether an appeal from a 35(b) motion is governed by 18 U.S.C. 3742

(which confers limited appellate jurisdiction over appeals of otherwise final
sentences) or by 28 U.S.C. 1291 (which grants broad appellate jurisdiction
over appeals of final decisions of district courts). We find that 3742 applies.
Because the defendant's appeal does not fall within the narrow appellate
jurisdiction provided for by that statute, we dismiss the appeal for lack of
jurisdiction.
As an initial matter, we note that other circuits have split on this issue. The
First Circuit has held that 1291 governs an appeal of a 35(b) motion, United
States v. McAndrews, 12 F.3d 273 (1st Cir.1993), while the Fourth, Ninth, and
Eleventh Circuits have held that 3742 applies, United States v. Pridgen, 64
F.3d 147 (4th Cir.1995); United States v. Arishi, 54 F.3d 596 (9th Cir.1995);
United States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir.1994). The First
Circuit rested its holding solely on the fact that "an order resolving a Rule 35(b)
motion ... is not, properly speaking, a sentence," because "a sentence must
already have been imposed before Rule 35(b) can be invoked and a sentence
reduction contemplated." McAndrews, 12 F.3d at 277. The Eleventh Circuit,
however, found the First Circuit's reasoning "unpersuasive," stating that: "We
have noted before that modification of a sentence is part of the sentencing
process." Chavarria-Herrara, 15 F.3d at 1035-36 (citation omitted).
Both positions are, in a literal sense, possible. We do not believe that the
question of whether a reduction of a sentence under Rule 35(b) is a sentence or
a judgment can be adequately resolved by analyzing its text in a vacuum. Our
finding that 3742 applies to appeals of Rule 35(b) motions is predicated
instead on the similarity between Rule 35(b) and 5K1.1 of the Sentencing
Guidelines.
This circuit has found that "[t]he only practical difference between Rule 35(b)
and U.S.S.G. 5K1.1 is a matter of timing: [ 5K1.1] is based on substantial
assistance before sentencing while [Rule 35(b) ] is based on substantial
assistance after sentencing." United States v. Gangi, 45 F.3d 28, 30 (2d
Cir.1995) (citation omitted). It is settled in this circuit that appeals of 5K1.1
orders are governed by 3742. See United States v. Lawal, 17 F.3d 560, 562
(2d Cir.1994). We have been given no reason why Rule 35(b) motions should
be governed by a different standard. On the contrary, allowing a 35(b) motion
to be governed by the more lenient requirements of 1291 would "have the
deleterious effect of encouraging defendants to postpone their assistance to the
Government to manipulate the timing of the motion in order to receive a more
favorable standard of review." Pridgen, 64 F.3d at 149.
Having determined that 3742 applies, we must consider whether that statute's
narrow grant of jurisdiction allows us to hear the appeal in the instant case. We
have stated that a defendant's right of appeal is limited by 3742 to cases in
which the sentence imposed was "(1) in violation of the law; (2) a
misapplication of the Guidelines; (3) an upward departure from the Guidelines;
or (4) a plainly unreasonable penalty for an offense not included in the
Guidelines." Lawal, 17 F.3d at 562; see 18 U.S.C. 3742(a). The case before
us does not fall under any of these exceptions.
Because we find that 3742 governs appeals of 35(b) motions, and that the
defendant's appeal does not fall within the limited jurisdiction conferred by
3742, we dismiss the appeal for want of jurisdiction.

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93 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

whether an appeal from a 35(b) motion is governed by 18 U.S.C. 3742

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