12 F.3d 273 (1st Cir. 1993), 93-1596, United States v. McAndrews

Docket Nº:93-1596.
Citation:12 F.3d 273
Party Name:UNITED STATES of America, Appellee, v. Willie McANDREWS, a/k/a Willie Wilson, Defendant, Appellant.
Case Date:December 13, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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12 F.3d 273 (1st Cir. 1993)

UNITED STATES of America, Appellee,


Willie McANDREWS, a/k/a Willie Wilson, Defendant, Appellant.

No. 93-1596.

United States Court of Appeals, First Circuit

December 13, 1993

Heard Nov. 1, 1993.

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[Copyrighted Material Omitted]

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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.


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.

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

  1. 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

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    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...

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