USA v. Bowers

• Decision Date: 12 August 2010
• Docket Number: No. 08-5595.,08-5595.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony BOWERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

615 F.3d 715

UNITED STATES of America, Plaintiff-Appellee,

v.Anthony BOWERS, Defendant-Appellant.

No. 08-5595.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 15, 2010.

Decided and Filed: Aug. 12, 2010.

ARGUED: Jack E. Seaman, Nashville, Tennessee, for Appellant. Blanche B. Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Jack E. Seaman, Nashville, Tennessee, for Appellant. Blanche B. Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: BOGGS and GILMAN, Circuit Judges; and McCALLA, Chief District Judge. ^*

OPINION

BOGGS, Circuit Judge.

Although it has been over five years since the Supreme Court's thoroughgoing reform of federal sentencing law in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a number of open questions remain regarding that decision's ramifications. In particular, this case requires us to decide Booker's impact-if any-on our jurisdiction to hear the appeal from a district court's decision to reduce (or decline to reduce) a final sentence under 18 U.S.C. § 3582(c)(2) (“ § 3582(c)(2)”) and/or Federal Rule of Criminal Procedure 35(b) (“Rule 35(b)”). Because the Supreme Court has recently clarified that Booker does not apply to such sentence-reduction proceedings, see Dillon v. United States, --- U.S. ----, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), we conclude that we lack jurisdiction to hear a defendant's appeal of the grant or denial of a sentence reduction pursuant to those sections on Booker “reasonableness” grounds. Accordingly, we dismiss this appeal for want of jurisdiction.

I

In March 2000, a federal grand jury indicted Anthony Bowers on one count of conspiracy to possess, with intent to distribute, five kilograms or more of powder cocaine and fifty grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on his criminal history category of VI, Bowers was subject to a sentence of 360 months to life under the (then-mandatory) United States Sentencing Guidelines (“Guidelines”). Bowers pleaded guilty pursuant to an agreement under which he was to receive a sentence of only 120 months. Before sentencing, however, Bowers breached his plea agreement by leaving the country without permission, thereby subjecting himself once again to a Guidelines-range sentence. As a result of a motion under § 5K1.1 of the Guidelines, the district court in November 2000 imposed a below-Guidelines-range sentence of 262 months of imprisonment and ten years of supervised release. Bowers did not appeal or collaterally attack this sentence.

In January 2008, the government filed a motion pursuant to Rule 35(b) relating to Bowers's sentence. ¹ Meanwhile, in November 2007, the United States Sentencing Commission amended the Guidelines to reduce the sentencing disparity between crack-cocaine and powder-cocaine offenses. See U.S.S.G. Supp.App. C, Amdt. 706 (effective Nov. 1, 2007); see also Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (explaining background of this amendment). In early 2008, the Sentencing Commission declared this amendment to be retroactive. See U.S.S.G. Supp.App. C, Amdt. 713 (effective Mar. 3, 2008). Bowers, relying on these amendments, filed a separate motion pursuant to § 3582(c)(2) seeking a sentence reduction. ²

On May 5 and 6, 2008, the district court conducted a combined hearing on the two motions. During this hearing, the court heard testimony from one of Bowers's fellow inmates that, several months earlier, Bowers and two other inmates had violently attacked him and searched his anus for contraband. Three corrections officers gave corroborating testimony. Bowers, by contrast, testified that he had nothing to do with the assault and that he had reformed himself in prison, found religion, and “learned his lesson.” Bowers also proffered several friends, family members, and fellow prisoners as character witnesses.

The government, taking the position that Bowers's alleged participation in the assault demonstrated his “dangerousness to the public,” suggested at most a “de minimis ” sentence reduction of one year (i.e., a total sentence of 250 months). Bowers argued that his sentence should be reduced to time served (at that point, approximately 90 months), or, at most, to the 120 months he was originally to serve under the breached plea agreement.

From the bench, the district court found the government's witnesses credible and Bowers not credible. The court then opined that, based on the totality of the circumstances, a “reduced sentence wouldn't be sufficient based on the negative [personal] characteristics of Mr. Bowers and the actions he took toward [the victim] ..., the need to deter criminal conduct in prison, and the need to protect the public from further crimes.” Consequently, the district court refused to award any additional sentence reduction pursuant to either Rule 35(b) or § 3582(c)(2). Bowers timely appealed.

II

We begin-and also end-by examining whether we have jurisdiction to consider Bowers's appeal at all. The government argues that, under this circuit's precedents, we lack jurisdiction to hear Bowers's appeal of the district court's Rule 35(b) determination-a conclusion that Bowers disputes. And although the government does not challenge our jurisdiction to hear Bowers's appeal of the district court's § 3582(c)(2) determination, “[s]ubject-matter limitations on federal jurisdiction ... must be policed by the courts on [our] own initiative....” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). After a searching examination of the law, we are convinced that we lack jurisdiction over either branch of Bowers's appeal.

A. Which Statute Controls the Jurisdictional Analysis?1. Potential Sources of Jurisdiction

Criminal defendants enjoy no constitutional right to appeal their convictions; accordingly, “in order to ... appeal one must come within the terms of [some] applicable statute....” Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). There are two possible statutory sources of appellate jurisdiction here. The first is 28 U.S.C. § 1291 (“§ 1291”), the general appellate-jurisdiction statute, which authorizes us to hear “appeals from all final decisions of the district courts....” The second is 18 U.S.C. § 3742 (“§ 3742”), enacted as part of the Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, 98 Stat. 1987. That provision authorizes us to hear a defendant's appeal of an “otherwise final sentence” in only four specified situations-namely, where the defendant argues that the sentence:

(1) was imposed in violation of law; [or]

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range ...; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a). ³

Because Congress enacted the Sentencing Reform Act with the intent to establish “a limited practice of appellate review of sentences in the Federal criminal justice system,” S.Rep. No. 225, 98th Cong., 2d Sess. 149 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3332, the federal courts are in agreement that § 3742 is now “the exclusive avenue through which a party can appeal a sentence” imposed as the result of a run-of-the-mill plenary sentencing proceeding following a conviction, United States v. McAndrews, 12 F.3d 273, 277 (1st Cir.1993). In other words, “a criminal defendant may not invoke [the broad grant of appellate jurisdiction found in] § 1291 to circumvent the conditions imposed by 18 U.S.C. § 3742 for appealing ... sentences.” United States v. Hartwell, 448 F.3d 707, 712 (4th Cir.2006).

Here, however, Bowers does not appeal the result of an initial, plenary sentencing proceeding. Rather, he appeals the district court's refusal to reduce a previously imposed sentence. Which jurisdictional provision controls, then, depends on whether Bowers's appeal is properly viewed as an appeal of the district court's determination of the sentence-reduction motions or as an appeal of the sentence that resulted from those motions. Because our jurisdiction to hear appeals of “sentences” under § 3742 is tightly circumscribed, the answer to this question is of great consequence.

2. Rule 35(b) Appeals

Although both interpretations of the nature of Bowers's appeal are possible in theory, the question is settled in this circuit with respect to the Rule 35(b) issue. In United States v. Moran, 325 F.3d 790 (6th Cir.2003), we reasoned that a district court's decision on a Rule 35(b) motion “effectively impose[s] a new sentence”:

[Defendant's] original sentence was 233 months. After the district court's order granting a departure, his sentence was 221 months. By any definition, the court's order imposed a new sentence, and [defendant's] appeal of that order is an appeal from an “otherwise final sentence”....

Id. at 793 (quoting United States v. McDowell, 117 F.3d 974, 977-78 (7th Cir.1997)). Accordingly, we held that appeals of “[a] district court's ruling on a Rule 35(b) motion ... [are] properly governed by 18 U.S.C. § 3742.” Ibid. ⁴ While we found this “common sense meaning” argument sufficient to decide the question, we went on to note two additional arguments supporting our holding. First, we observed that Rule 35(b) motions are the post-sentencing analogues of government motions for downward departures pursuant to U.S.S.G. § 5K1.1 upon initial sentencing. Ibid. The latter, we noted, are clearly governed by § 3742, because such departures are part and parcel of a defendant's plenary sentence proceeding; we then reasoned that, “[g]iven the similarity between § 5K1.1 and Rule 35(b), it would be anomalous to treat appeals of judgments resolving the two motions differently.” Ibid. We also noted that legislative...