U.S. v. McAndrews

• Decision Date: 01 November 1993
• Docket Number: No. 93-1596,93-1596
• Citation: 12 F.3d 273
• Parties: UNITED STATES of America, Appellee, v. Willie McANDREWS, a/k/a Willie Wilson, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 273

12 F.3d 273

UNITED STATES of America, Appellee, v. Willie McANDREWS, a/k/a Willie Wilson, Defendant, Appellant.

No. 93-1596.

United States Court of Appeals, First Circuit.

Heard Nov. 1, 1993.

Decided Dec. 13, 1993.

John F. O'Donnell, Waterville, ME, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, ME, with whom Jay P. McCloskey, U.S. Atty., Nicholas M. Gess and William H. Browder, Jr., Asst. U.S. Attys., Bangor, ME, were on brief, for the U.S.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

This appeal conveys two invitations. First, it invites us to exercise appellate jurisdiction in connection with rulings on motions invoking Fed.R.Crim.P. 35(b). ¹ Second, it invites us to require district courts, in passing upon such motions, to hold evidentiary hearings on demand. We accept the first invitation, but decline the second.

I. BACKGROUND

A jury found defendant-appellant Willie McAndrews, also known as Willie Wilson, guilty of violating 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A), and 846. Using the 1989 edition of the federal sentencing guidelines, the district court sentenced appellant to 125 months in prison.

In the aftermath of his sentence, appellant cooperated with federal authorities. Consequently, the government filed a timely sentence reduction motion under Rule 35(b). Appellant requested an evidentiary hearing on the motion. Following a lengthy continuance designed to permit a better informed assessment of the fruits of appellant's cooperation, the district court eschewed an evidentiary hearing and, acting on the parties' written submissions, granted the government's motion. Dissatisfied with the extent of the reduction--the court sliced 29 months from the sentence--McAndrews appeals. We affirm.

II. APPELLATE JURISDICTION

We deal first with the jurisdictional quandary. It has two aspects. We treat them sequentially.

A. The Departure Analogy.

It is settled that a criminal defendant cannot ground an appeal on the sentencing court's discretionary decision not to depart below the guideline sentencing range. See, e.g., United States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992); United States v. Hilton, 946 F.2d 955, 957 (1st Cir.1991); United States v. Romolo, 937 F.2d 20, 22 (1st Cir.1991). ² In the same vein, if the sentencing court affirmatively exercises its discretion and departs downward, no appeal will lie on behalf of the benefitted defendant "merely because [he] is dissatisfied with the quantification of the court's generosity." United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990). Phrased another way, the court of appeals lacks jurisdiction to hear an appeal by a party in whose favor a departure decision operates. See United States v. Fisher, 3 F.3d 456, 464 (1st Cir.1993); United States v. Gregorio, 956 F.2d 341, 345 n. 5 (1st Cir.1992); Pighetti, 898 F.2d at 4.

The general rule that departure decisions of the type discussed above are nonappealable holds true in the special situation of downward departures for substantial assistance. ³ Thus, neither a district court's refusal to depart downward to reward a defendant's substantial assistance, nor the court's refusal to grant as generous a departure as a cooperating defendant had hoped, will normally constitute an appealable event. See United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993); United States v. Correa, 995 F.2d 686, 687 (7th Cir.1993); United States v. Womack, 985 F.2d 395, 401 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 276, 126 L.Ed.2d 227 (1993); United States v. Mariano, 983 F.2d 1150, 1153-54 (1st Cir.1993).

In this appeal, the government attempts to analogize such "substantial assistance" departures to sentence reductions under Rule 35(b) for jurisdictional purposes. ⁴ The analogy has a certain superficial attraction because both mechanisms operate to bring a defendant's sentence below the guideline sentencing range and entail similar judicial inquiries, compare, e.g., Mariano, 983 F.2d at 1156 (discussing factors influencing departures under U.S.S.G. Sec. 5K1.1) with, e.g., United States v. Milken, 1992 WL 196797 at * 4, 1992 U.S.Dist. LEXIS 11670 at * 3 -* 5 (S.D.N.Y.1992) (discussing factors influencing Rule 35(b) sentence reductions). But on closer perscrutation, the analogy fails because it overlooks a jurisdictionally significant difference between downward departures and sentence reductions.

The right of appeal in criminal cases is purely a creature of statute, that is, a party "must come within the terms of [some] applicable statute" in order to appeal. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). Prior to the advent of guideline sentencing, a criminal defendant, in theory, could easily achieve this benchmark. After all, the courts of appeals have jurisdiction over "appeals from all final decisions of the district courts," 28 U.S.C. Sec. 1291; and, in a criminal case, the imposition of sentence constitutes a final decision within the meaning of section 1291, see Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956); Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 165-66, 82 L.Ed. 204 (1937). Nevertheless, the theoretical possibility of an appeal had few practical consequences; since judges possessed extremely wide discretion and were not required to state reasons for imposing particular punishments, sentences were virtually unreviewable (so long as they fell within applicable statutory limits). See United States v. Ruiz-Garcia, 886 F.2d 474, 476-77 & n. 4 (1st Cir.1989) (discussing historical background of sentencing appeals).

Congress changed the calculus radically when it enacted 18 U.S.C. Sec. 3742 as part of the Sentencing Reform Act of 1984, constituting it as the exclusive avenue through which a party can appeal a sentence in a criminal case. ⁵ The statute alters prior practice in two salient respects, narrowing the types of sentences that can be appealed while simultaneously augmenting the grounds for appealing the remaining types of sentences. See, e.g., S.Rep. No. 225, 98th Cong., 2d Sess. (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3338 (stating that "section 3742 creates for the first time a comprehensive system of review of sentences that permits the appellate process to focus attention on those sentences whose review is crucial to the functioning of the sentencing guidelines system, while also providing adequate means for correction of erroneous and clearly unreasonable sentences").

In the post-guidelines era, then, only sentences that meet the criteria limned in section 3742 are amenable to appellate review. And because neither refusals to depart nor downward departures result in a sentence "greater than the sentence specified in the applicable guideline range," 18 U.S.C. Sec. 3742(a)(3), or otherwise trigger the prophylaxis of section 3742(a), a defendant ordinarily will not be able to appeal from such a decision, see Pighetti, 898 F.2d at 4. ⁶

Rule 35(b) is a horse of a different hue. By definition, a sentence must already have been imposed before Rule 35(b) can be invoked and a sentence reduction contemplated. It follows that the appealability of an order resolving a Rule 35(b) motion is not controlled by 18 U.S.C. Sec. 3742 because such an order is not, properly speaking, a sentence. ⁷ Rather, appealability in such circumstances, like appealability with respect to the disposition of virtually all other post-judgment motions, is governed by 28 U.S.C. Sec. 1291. And an order resolving a Rule 35(b) motion satisfies the preconditions established by section 1291, for entry of the order leaves nothing further to be done. See United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.1988) (elucidating "general rule" that an order becomes final and appealable when a court resolves a contested matter, leaving nothing further to be done) (citing, inter alia, Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945)). An order granting or denying a Rule 35(b) motion is, thus, a final decision for purposes of section 1291.

Cast in this mold, our analysis accords with the general principle, taken for granted in both our criminal and civil jurisprudence, that rulings disposing of motions which seek to alter preexisting judgments are appealable. See, e.g., United States v. Slade, 980 F.2d 27, 32 (1st Cir.1992) (entertaining appeal from denial of post-judgment motion to present new evidence pursuant to Fed.R.Crim.P. 33); Fiore v. Washington Cty. Community Mental Health Ctr., 960 F.2d 229, 232-33 (1st Cir.1992) (en banc) (discussing appealability of post-judgment motions in civil cases; restating established rule that denials of post-judgment motions "are appealable separately from the appeal of the underlying judgment"); United States v. Distasio, 820 F.2d 20, 22-24 (1st Cir.1987) (entertaining appeal from grant of sentence reduction motion under former Rule 35(b)); see also cases cited infra p. 279 (entertaining appeals from denials of sentence reduction motions brought pursuant to former Rule 35(b)).

For the foregoing reasons, the government's attempted analogy between downward departures for substantial assistance and sentence reductions is unpersuasive in connection with appellate jurisdiction. We conclude that, even in an era dominated by the sentencing guidelines, an order granting or denying a timely motion for a sentence reduction, unlike certain analogous departure decisions, remains appealable.

B. Lack of Adverseness.

Perhaps the better argument against appellate jurisdiction in the case of a granted Rule 35(b) motion is that the defendant, qua appellant, lacks "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon...