USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1596
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIE McANDREWS, a/k/a WILLIE WILSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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John F. O'Donnell for appellant.
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Margaret D. McGaughey, Assistant United States Attorney,
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with whom Jay P. McCloskey, United States Attorney, Nicholas M.
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Gess and William H. Browder, Jr., Assistant United States
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Attorneys, were on brief, for the United States.
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December 13, 1993
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SELYA, Circuit Judge. This appeal conveys two
SELYA, Circuit Judge.
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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
I. BACKGROUND
A jury found defendant-appellant Willie McAndrews, also
known as Willie Wilson, guilty of violating 21 U.S.C.
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
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1The rule was rewritten as part of the Sentencing Reform
Act, effective November 1, 1987, and was further amended in 1991.
See Fed. R. Crim. P. 35 advisory committee's notes. In its
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current incarnation, the rule provides in pertinent part:
The court, on motion of the Government made
within one year after the imposition of the
sentence, may reduce a sentence to reflect a
defendant's subsequent, substantial
assistance in the investigation or
prosecution of another person who has
committed an offense . . . . The court's
authority to reduce a sentence under this
subsection includes the authority to reduce
such sentence to a level below that
established by statute as a minimum sentence.
Fed. R. Crim. P. 35(b).
2
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
II. APPELLATE JURISDICTION
We deal first with the jurisdictional quandary. It has
two aspects. We treat them sequentially.
A. The Departure Analogy.
A. The Departure Analogy.
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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
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States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113
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S. Ct. 224 (1992); United States v. Hilton, 946 F.2d 955, 957
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(1st Cir. 1991); United States v. Romolo, 937 F.2d 20, 22 (1st
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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
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2An exception applies when the sentencing court's ruling
results from a mistake of law. See, e.g., Amparo, 961 F.2d at
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292; Hilton, 946 F.2d at 957. Thus, "appellate jurisdiction may
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attach when it appears that the failure to depart stemmed from
the sentencing court's mistaken impression that it lacked the
legal authority to depart or, relatedly, from the court's
misapprehension of the rules governing departure." United States
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v. Mariano, 983 F.2d 1150, 1153 (1st Cir. 1993) (collecting
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cases).
3
court's generosity." United States v. Pighetti, 898 F.2d 3, 4
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(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
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456, 464 (1st Cir. 1993); United States v. Gregorio, 956 F.2d
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341, 345 n.5 (1st Cir. 1992); Pighetti, 898 F.2d at 4.
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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.
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1993); United States v. Correa, 995 F.2d 686, 687 (7th Cir.
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1993); United States v. Womack, 985 F.2d 395, 401 (8th Cir.),
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cert. denied, 114 S. Ct. 276 (1993); United States v. Mariano,
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983 F.2d 1150, 1153-54 (1st Cir. 1993).
In this appeal, the government attempts to analogize
such "substantial assistance" departures to sentence reductions
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3Beyond inviting a comparison between the triggering
mechanisms, compare U.S.S.G. 5K1.1 with U.S.S.G. 5K2.0, it
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would be supererogatory for us to rehearse today the differences
between "substantial assistance" and "mitigating circumstances"
departures. At any rate, we have charted that terrain in other
cases. See, e.g., United States v. Mariano, 983 F.2d 1150, 1154-
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55 (1st Cir. 1993); Romolo, 937 F.2d at 24-25.
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4
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.,
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Mariano, 983 F.2d at 1156 (discussing factors influencing
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departures under U.S.S.G. 5K1.1) with, e.g., United States v.
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Milken, 1992 U.S. Dist. LEXIS 11670 at *3-*5 (S.D.N.Y. Aug. 5,
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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.
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United States, 431 U.S. 651, 656 (1977). Prior to the advent of
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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. 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,
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518 (1956); Berman v. United States, 302 U.S. 211, 212-13 (1937).
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Nevertheless, the theoretical possibility of an appeal had few
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4Although this analogy has never before been carefully
probed by a federal appellate court, it appears to have been
implicitly approved in a dictum contained in United States v.
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Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992).
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5
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
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United States v. Ruiz-Garcia, 886 F.2d 474, 476-77 & n.4 (1st
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Cir. 1989) (discussing historical background of sentencing
appeals).
Congress changed the calculus radically when it enacted
18 U.S.C. 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,
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5The statute provides in pertinent part:
A defendant may file a notice of appeal in
the district court for review of an otherwise
final sentence if the sentence
(1) was imposed in violation of
law;
(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) (1988). The terms under which the government
may appeal a sentence are substantially similar. See id. at
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3742(b).
6
e.g., S. Rep. No. 225, 98th Cong., 2d Sess. (1983), reprinted in
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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.
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
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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. 3742 because such an
order is not, properly speaking, a sentence.7 Rather,
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6This statement is, of course, subject to the exception
previously mentioned. See supra note 2. We see no reason why
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the same exception should not apply if, and to the extent that, a
mistake of law materially and demonstrably influences the extent
of a departure decision.
7On this point, we differ from the position adumbrated,
without analysis, in United States v. Yesil, 991 F.2d 1527, 1531
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n.4 (11th Cir. 1993).
7
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. 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
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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,
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Catlin v. United States, 324 U.S. 229, 233 (1945)). An order
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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
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States v. Slade, 980 F.2d 27, 32 (1st Cir. 1992) (entertaining
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appeal from denial of post-judgment motion to present new
evidence pursuant to Fed. R. Crim. P. 33); Fiore v. Washington
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Cty. Community Mental Health Ctr., 960 F.2d 229, 232-33 (1st Cir.
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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,
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820 F.2d 20, 22-24 (1st Cir. 1987) (entertaining appeal from
grant of sentence reduction motion under former Rule 35(b)); see
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8
also cases cited infra p.12 (entertaining appeals from denials of
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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.
B. Lack of Adverseness
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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
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outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends." Baker v. Carr, 369 U.S. 186, 204 (1962). At
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least in certain circumstances, a prevailing party cannot appeal
from an order or judgment entered in his favor. See Sierra Club
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v. Marsh, 907 F.2d 210, 213 (1st Cir. 1990); In re Public Serv.
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Co., 898 F.2d 1, 2 (1st Cir. 1990); Bath Iron Works Corp. v.
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Coulombe, 888 F.2d 179, 180 (1st Cir. 1989). And, here, the
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lower court's order operated in appellant's favor, trimming 29
months from his sentence. It is, therefore, arguable that
appellant, having derived a substantial benefit, should not be
allowed to appeal from the ruling.
9
The problem with such an argument is twofold. First,
it is overly simplistic. The key to the appealability of a final
order is injury, not prevailing party status. See Deposit
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Guaranty Nat'l Bk. v. Roper, 445 U.S. 326, 334 (1980) (explaining
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that "appeal may be permitted from an adverse ruling collateral
to the judgment on the merits at the behest of the party who has
prevailed on the merits, so long as that party retains a stake in
the appeal satisfying the requirements of Art. III"). A
prevailing party dissatisfied with the quantum of relief obtained
say, a personal injury plaintiff who receives a favorable
liability finding but a paltry damage award ordinarily can seek
appellate review.8 So it is here.
Second, this court has already repudiated the lack of
adverseness argument in an almost identical context. In
Distasio, we considered the case of a criminal defendant who,
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after having been granted a reduction in sentence under an
earlier version of Rule 35(b), sought to appeal the adequacy of
the reduction. See Distasio, 820 F.2d at 22. Although we
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vacated the district court's order on a different ground, we
ruled squarely that "a criminal defendant may appeal the adequacy
of sentence reductions granted pursuant to Fed. R. Crim. P.
35(b)." Id. at 24. The recent amendments to Rule 35(b) do not
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8We note that, if the law were to the contrary in the Rule
35(b) environment, a district court could invariably defeat
appellate oversight of an otherwise reviewable denial of a Rule
35(b) motion by, for example, lopping one day off a defendant's
sentence.
10
undermine the rationale on which Distasio rests,9 and we are
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bound by it. See, e.g., Doughty v. Underwriters at Lloyd's,
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London, ___ F.3d ___, ___ (1st Cir. 1993) [No. 93-1174, slip op.
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at 9] (discussing binding effect of prior panel opinions within a
circuit).
We hold, therefore, that we have jurisdiction to hear a
timely appeal in which a prevailing defendant complains that the
district court acted too grudgingly in dispensing relief under
Rule 35(b). This case fits within that jurisdictional enclave.
III. THE MERITS
III. THE MERITS
Having ascertained the existence of appellate
jurisdiction, the merits of the appeal need not detain us.
Appellant's flagship contention is that the district court erred
in denying his motion for an evidentiary hearing and, thus,
robbed him of the opportunity to make a more formidable showing
on the merits. We are not persuaded.10
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9The current version of Rule 35(b), applicable to crimes
committed on or after November 1, 1987, differs in at least three
ways from former Rule 35(b). First, the text of the new rule
limits the ground for relief to "substantial assistance in the
investigation or prosecution of another person who has committed
an offense." Second, the new rule adds a "government motion"
requirement. Finally, in the latest version of Rule 35(b), the
period within which a Rule 35(b) motion may be filed has been
lengthened somewhat. Nonetheless, the essence of a Rule 35(b)
determination the district court's discretionary decision
whether to reduce a defendant's sentence, and if so, to what
extent remains intact.
10Appellant hints, but offers no developed argumentation to
show, that the sentence reduction granted by the district court
is, in fact, too niggardly. That approach is, therefore,
foreclosed. See United States v. Zannino, 895 F.2d 1, 17 (1st
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Cir.) (warning that issues adverted to in a perfunctory manner,
unaccompanied by developed argumentation, are waived), cert.
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11
In this endeavor, appellant's main focus is his
insistence that "without conducting an evidentiary hearing, the
district court cannot possibly be in a position to evaluate the
full nature and extent of [a defendant's] cooperation."
Appellant's Brief at 9. We flatly reject such a rigid
formulation. A criminal defendant is not automatically entitled
to an evidentiary hearing on a pretrial or posttrial motion. See
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United States v. McGill, ___ F.3d ___, ___ (1st Cir. 1993) [No.
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93-1023, slip op. at 3] (collecting cases).
We can envision no sound basis for exempting Rule 35(b)
motions from the sweep of this generality. While gauging the
extent and value of a defendant's assistance to the authorities
is a delicate, highly nuanced matter, we have consistently
abjured mandatory evidentiary hearings in a wide variety of
equally delicate, equally nuanced situations. See, e.g., United
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States v. Garcia, 954 F.2d 12, 19 (1st Cir. 1992) (sentencing);
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United States v. Panitz, 907 F.2d 1267, 1273-74 (1st Cir. 1990)
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(outrageous misconduct); United States v. O'Brien, 895 F.2d 810,
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817 (1st Cir. 1990) (motion for Nebbia hearing); United States v.
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Saade, 652 F.2d 1126, 1135-36 (1st Cir. 1981) (selective
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prosecution). Tellingly, motions brought under earlier versions
of Rule 35(b) have not been thought to require evidentiary
hearings, or even oral argument. See, e.g., United States v.
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DeCologero, 821 F.2d 39, 44 (1st Cir. 1987); United States v.
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Heller, 797 F.2d 41, 42 (1st Cir. 1986); United States v. Foss,
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denied, 494 U.S. 1082 (1990).
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12
501 F.2d 522, 529 (1st Cir. 1974). We conclude, therefore, that
a district court has broad discretion to craft appropriate
procedures for considering Rule 35(b) motions, including the
discretion to grant or deny an evidentiary hearing.11 See
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United States v. Winfield, 960 F.2d 970, 972 (11th Cir. 1992);
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United States v. Collins Spencer Catch The Bear, 727 F.2d 759,
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762 (8th Cir. 1984).
Once it is determined that Rule 35(b) motions, as a
class, do not demand special swaddling, appellant's assignment of
error founders. We review the district court's rulings granting
or denying evidentiary hearings under an abuse-of-discretion
rubric. See Garcia, 954 F.2d at 19; DeCologero, 821 F.2d at 44.
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Because the trial judge is steeped in the facts and has a
superior vantage point for assessing motions of this sort, we
will not overrule the refusal to convene an evidentiary hearing
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11Appellant cites United States v. Yesil, 968 F.2d 1122
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(11th Cir. 1992), for the proposition that a district court must
always grant a requested evidentiary hearing when the government
moves for a sentence reduction under Rule 35(b). The case does
not bear the weight that appellant ascribes to it. In the first
place, the original opinion in Yesil has been superseded, and the
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court's revised opinion makes clear "that the decision whether or
not to grant an evidentiary hearing [on a Rule 35(b) motion]
generally is committed to the [sentencing] court's discretion."
United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir. 1993)
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(superseding earlier opinion). In the second place, written plea
agreements obligated the government in Yesil, upon completion of
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the defendants' cooperation, to apprise the court fully
concerning the nature and extent of defendants' actions. Id. at
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1532. Because of the language of the plea agreements, "[t]he
district court lost its usual discretion to determine whether or
not to grant a party's request for an evidentiary hearing . . .
." Id. In the case at bar, the record does not show any plea
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agreement between the defendant and the prosecution. Hence,
Yesil is inapposite.
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13
absent a clear showing that the court's discretion has been
misused. Consequently, a party seeking an evidentiary hearing on
a post-judgment motion must carry a formidable burden of
persuasion. See McGill, ___ F.3d at ___ [slip op. at 3-4].
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McAndrews wholly failed to carry this heavy burden.
The government made a detailed written proffer to the district
court, spelling out the facts referable to its sentence reduction
motion. Appellant had a similar opportunity. Yet, he offered no
specifics to contradict the prosecution's proffer or to suggest
material omissions.12 Beneath the rhetoric, appellant's filing
evinced little more than the hope that, should a hearing
eventuate, something helpful might emerge. But more is exigible.
A district court need not grant an evidentiary hearing on a
motion merely because a defendant's hopes spring eternal or
because a defendant wishes to mount a fishing expedition. See,
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e.g., DeCologero, 821 F.2d at 44 (cautioning that evidentiary
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hearings cannot be provided upon demand, "at the whim of a
suitor").
The short of it is that a criminal defendant who seeks
an evidentiary hearing on a motion must, at the very least, carry
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12At one point, appellant asserted that, in addition to the
efforts that the government catalogued, he also "provided the
impetus for two other individuals, Charlie Luna and Pedro Gomez,
to commence cooperation," and that new cases were developed
because of this information. But scrutiny of the government's
proffer reveals complete agreement on this point and, thus, no
need for an evidentiary hearing. The fact that the government
did not identify Luna and Gomez by name, but referred to them
merely as "two other suspects," is a distinction bereft of any
meaningful difference.
14
an entry-level burden by making "a sufficient threshold showing
that material facts [are] in doubt or in dispute." Panitz, 907
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F.2d at 1173; see also Franks v. Delaware, 438 U.S. 154, 155-56
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(1978) (requiring "substantial preliminary showing" antecedent to
evidentiary hearing); Saade, 652 F.2d at 1135 (similar). In this
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instance, appellant offered no persuasive reason to believe that
taking testimony would or even might be productive. Thus,
the district court, in refusing to grant an evidentiary hearing,
did not abuse its considerable discretion.
IV. CONCLUSION
IV. CONCLUSION
We need go no further. We hold that we have
jurisdiction to consider appellant's complaint anent the
disposition of his Rule 35(b) motion. Having exercised this
jurisdiction, however, we find no error in the district court's
order or in the procedure it employed.
Affirmed.
Affirmed.
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15
