U.S. v. Chapman

• Decision Date: 10 July 2008
• Docket Number: No. 07-3637.,No. 07-3639.,07-3637.,07-3639.
• Citation: 532 F.3d 625
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darryl W. CHAPMAN and John Frank, also known as Jack Frank, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

532 F.3d 625

UNITED STATES of America, Plaintiff-Appellee, v. Darryl W. CHAPMAN and John Frank, also known as Jack Frank, Defendants-Appellants.

No. 07-3637.

No. 07-3639.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2008.

Decided July 10, 2008.

Paul W. Connell (argued), Jeffrey M. Anderson, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Thomas G. Wilmouth (argued), Federal Defender Services of Eastern Wisconsin, Inc., Milwaukee, WI, Michele A. Tjader, Tjader & Chirafisi, Madison, WI, for Defendants-Appellants.

Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Darryl Chapman and John Frank each were convicted and sentenced for unrelated drug crimes. While serving their sentences, both men independently provided substantial assistance to the Government. Accordingly, the Government filed motions to reduce their otherwise final sentences under Federal Rule of Criminal Procedure 35(b). The district court granted the Government's motions, reducing Mr. Chapman's sentence from 120 to 102 months and Mr. Frank's sentence from 84 to 72 months. On appeal, the defendants contend that the district court failed to consider properly their arguments for greater sentence reductions. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

Darryl Chapman and John Frank each pleaded guilty to unrelated charges of knowingly and intentionally distributing cocaine in violation of 21 U.S.C. § 841(a)(1). On April 19, 2006, the district court sentenced Mr. Chapman to 120 months' imprisonment. On September 13, 2006, the district court sentenced Mr. Frank to 84 months' imprisonment. Both of these sentences were within the applicable sentencing guidelines range, but both were at the higher end of their respective ranges.

After they were sentenced, both defendants independently gave substantial assistance to the Government. At great risk to the safety of his family and himself, Mr. Chapman gave law enforcement officers the name of his former cocaine source. His cooperation resulted in the apprehension and conviction of a major source of marijuana and cocaine distribution in the area. Mr. Frank also named his drug source, and that information assisted in the conviction of three other individuals. In return for this assistance, the Government filed a motion to request a reduction in their sentences under Rule 35(b).

At Mr. Chapman's hearing before the district court, both the Government and Mr. Chapman's counsel noted the timeliness, truthfulness, completeness and reliability of his assistance, as well as the fact that Mr. Chapman had been threatened in prison because of his cooperation. In light of these circumstances, the Government requested that the court reduce Mr. Chapman's offense level by two levels and then impose a sentence at the bottom of the resulting guidelines range—specifically, 84 months. Mr. Chapman agreed with this recommendation.

The district court granted the Government's motion and reduced Mr. Chapman's offense level by two levels; however, it imposed a sentence of 102 months, a sentence at the high end of the guidelines range. The court remarked that Mr. Chapman's significant criminal history counseled against imposing a lower sentence, and it stated that a sentence of 102 months "will still hold this defendant accountable for his criminal conduct while factoring in his substantial assistance." Chapman Tr. at 7-8.

Similarly, at Mr. Frank's hearing, the Government and the defense counsel requested that the court reduce Mr. Frank's sentence based upon his significant assistance. The Government did not propose a particular reduction, but Mr. Frank suggested a five-level reduction. The court granted the Government's motion and decided to reduce Mr. Frank's offense level by one level. It sentenced Mr. Chapman to 72 months' imprisonment, a sentence at the high end of the new guidelines range. Much like it did in Mr. Chapman's case, the court emphasized Mr. Frank's significant prior criminal history as well as the substantial quantity of drugs that had been involved in his crime. The court stated that 72 months' imprisonment will "hold this defendant accountable for his criminal conduct while factoring in his substantial assistance." Frank Tr. at 8.

II DISCUSSION

A.

An appeal from a Rule 35(b) order is an appeal from an "otherwise final sentence," over which we have jurisdiction only in limited circumstances. United States v. McGee, 508 F.3d 442, 444 (7th Cir.2007); see also 18 U.S.C. § 3742(a). Section 3742 does not grant appellate courts jurisdiction to review a district court's exercise of its discretion under Rule 35(b). See McGee, 508 F.3d at 444-45 ("[O]ur jurisdictional mandate is limited and does not extend to a district court's discretionary decisions regarding sentencing.").¹ Accordingly, our review of a sentence reduction here is more limited than our review of an original sentence. We ask only whether the reduction was imposed in violation of the law, not whether the new sentence imposed was reasonable. See id. at 445.

The Government characterizes the defendants' claims as mere complaints that the district court did not exercise its discretion to reduce their sentences to the extent they had hoped. In the Government's view, the defendants' arguments do not amount to an allegation that they were sentenced "in violation of law"; therefore, in its view, we do not have jurisdiction to consider their claims under section 3742.

If the defendants' arguments could be reduced to the simple claim that the district court, after considering the appropriate factors, should have granted a greater reduction, then appellate review indeed would be impermissible here. We cannot accept, however, the Government's characterization of the defendants' arguments. As we understand their arguments, Mr. Chapman and Mr. Frank do not simply contend that the district court should have reduced further their sentences. Instead, they submit that the district court, in determining the proper sentence, considered factors that it should not have considered (i.e., factors already considered at the original sentencing), and failed to consider factors that it should have considered (i.e., the disparity between the defendants' reduction and reductions granted to other defendants who had given similar levels of assistance to the Government, and, in Mr. Chapman's case, the fact that both the Government and the defendant agreed on a suggested sentence of 84 months). We suggested in McDowell that an assertion of this type of methodological error "alleges an error of law subject to our jurisdiction under section 3742(a)." 117 F.3d at 978; see also United States v. Doe, 351 F.3d 929, 932 (9th Cir.2003) (holding that the appellate court did have jurisdiction under section 3742 to review whether the district court's consideration of factors other than substantial assistance in denying the Government's Rule 35(b) motion was improper); United States v. Manella, 86 F.3d 201, 203 (11th Cir.1996) (same). Consequently, we have jurisdiction to consider the defendants' legal claims.

B.

The defendants submit that the district court imposed their sentences "in violation of law," 18 U.S.C. § 3742(a), for three reasons. First, they contend that the district court focused improperly upon their criminal histories and the nature of their crimes, factors already considered at their original sentencing. Second, they contend that the district court improperly failed to consider their arguments regarding the potential for unwarranted sentencing disparities. Third, Mr. Chapman suggests that the district court's dismissal of the Government's request for a sentence of 84 months, without explanation, was unwarranted. We shall consider each of these arguments in turn.

1.

To the extent that the defendants contend that the district court's consideration of their criminal histories and the nature of their crimes was improper because those factors already had been considered at the initial sentencing hearing, we have jurisdiction to consider their claim. The substantive argument made here was made in the Ninth Circuit case of Doe, 351 F.3d at 932, and in an Eleventh Circuit case relied upon by the defendants, Manella, 86 F.3d at 203-05, although it ultimately was rejected by both courts. The Ninth Circuit in Doe held that a court may look to the section 3553 factors in imposing a new sentence under Rule 35(b), even though those factors already had been considered at the original sentencing hearing. Doe, 351 F.3d at 932. Similarly, the Eleventh Circuit held that Rule 35(b) does not prohibit consideration of the section 3553 factors, including the seriousness of a defendant's offense, in deciding the extent to which a defendant's sentence should be reduced for substantial assistance. Manella, 86 F.3d at 204-05.

The reasoning of these decisions is persuasive. Nothing in the text of Rule 35(b) limits the factors that may militate against granting a sentence reduction or for granting a smaller reduction than requested. The defendants do not provide any persuasive reasons for restricting the court's consideration to factors not considered at the original sentencing hearing. On the other hand, a faithful and pragmatic adherence to the mandate of 18 U.S.C. § 3553(a) counsels that the nature and extent of any reduction be determined in light of all the sentencing factors set forth in the statute. Post-arrest cooperation cannot be assessed in a vacuum. Whether such cooperation represents an opportunistic attempt to obtain a sentence reduction or a genuine alteration in the defendant's life perspective can best be determined by assessing that cooperation in light of earlier criminal history and the nature of the crime for which the defendant is presently being sentenced. Accordingly, we conclude that the district court did not act in...