Case: 13-14626   Date Filed: 03/06/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14626
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:10-cr-505-SCJ-ECS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff–Appellee,

versus

TERRY TYRONE HARDMAN,
a.k.a. Terry Hardman,

                                                         Defendant–Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (March 6, 2015)
Before MARCUS, WILLIAM PRYOR, and DUBINA, Circuit Judges.
PER CURIAM:
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      Appellant Terry Hardman pleaded guilty to conspiring to possess five
kilograms of cocaine with the intent to distribute and was initially sentenced to 235

months’ imprisonment. After sentencing, he provided substantial assistance to the
government, so the government twice requested modifications of his sentence
under Federal Rule of Criminal Procedure 35(b). The district court granted both
requests, ultimately reducing Hardman’s sentence to 188 months. In ruling on the
second Rule 35(b) motion, the court denied Hardman’s request for an additional
20-month reduction. Hardman now appeals, contending that the court’s sentence

modification was procedurally unreasonable. After reviewing the record and
considering the parties’ briefs, we affirm.

                                          I.

      Hardman pleaded guilty to conspiring to possess five kilograms of cocaine
with the intent to distribute. At sentencing, the district court determined that his
Sentencing Guidelines range was 262 to 327 months with a statutory minimum of
240 months. But after granting the government’s U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e) motion for a downward departure based on substantial assistance, the
court sentenced Hardman to 235 months’ imprisonment, the bottom of his adjusted
Guidelines range. Hardman did not file a direct appeal, but he did continue to
assist the government.
      Seventeen months later, the government moved for a 12-month reduction in
Hardman’s sentence under Rule 35(b), which allows the government to file a
postsentencing motion requesting that the sentence of a defendant who has



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provided substantial assistance be reduced. 1 The district court granted this motion,
reducing Hardman’s sentence from 235 months to 223 months.

       A few months later, the government requested an additional 35-month
reduction in Hardman’s sentence, which would bring it down to 188 months. In
response, Hardman urged the district court to not only grant the government’s
second Rule 35(b) motion but also to go further and reduce his sentence to 168
months. In his view, an additional 20-month reduction was warranted for three
reasons: (1) the government’s motion did not count all of his cooperation; (2) his

cooperation had placed himself and his family in danger; and (3) this reduction
would place his sentence in line with that of a coconspirator who had been
convicted as a result of his postconviction assistance.
       At the hearing on the second Rule 35(b) motion, the government argued that
the cumulative 74-month reduction that it sought accurately reflected the degree of
Hardman’s assistance. 2 The government also explained why Hardman and his

coconspirator were not similarly situated. Although their offense conduct and
criminal history category were the same, Hardman had received a two-level
enhancement for possession of a firearm and had five qualifying prior convictions

under 21 U.S.C. § 851 compared to one by his coconspirator. The government
thus concluded that a further reduction was unwarranted.
       1
        Although such motions must generally be made “within one year of sentencing,” the
government may move for a reduction beyond this period under certain circumstances. See Fed.
R. Crim. P. 35(b)(1)–(2).
       2
        This figure represents the difference between a sentence of 262 months (the bottom of
Hardman’s initial Guidelines range) and 188 months (the term requested by the government in its
second Rule 35(b) motion).


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       Hardman supported his further-reduction request by emphasizing that he
had always provided the government with truthful information even if all of it did

not constitute “substantial assistance.” Additionally, both he and his mother told
the district court about the danger that his family was in because of his
cooperation, pointing to specific incidents that they believed were acts of
retaliation. Lastly, he noted that four of his prior convictions involved relatively
small quantities of drugs (i.e., a few grams) and one was for robbery, but his
coconspirator’s prior conviction was for involuntary manslaughter. Hardman thus

concluded that when viewed holistically, their histories were similar enough to
justify reducing his sentence to 168 months, the sentence his coconspirator
received.
      After having the benefit of oral argument and considering the sentencing
factors in 18 U.S.C. § 3553(a) and the factors in Guideline § 5K1.1, the district
court granted the government’s second Rule 35(b) motion and declined Hardman’s
request for an additional reduction. Hardman’s sentence was reduced to 188
months. This appeal timely followed.
      Once Hardman filed his opening brief, the government moved to dismiss
based on the appeal waiver in his plea agreement. We denied the motion, holding
that this provision did not waive his right to appeal a Rule 35(b) sentence
modification. With briefing now complete, this appeal is ripe for review.




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                                         II.

      Before reaching the merits of Hardman’s appeal, we must first address our
jurisdiction. See United States v. Lopez, 

, 1311 (11th Cir. 2009).
“Section 3742 establishes ‘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.” United States v. Chavarria-

Herrara, 

, 1035 (11th Cir. 1994). This statute permits appellate
review of “an otherwise final sentence,” 18 U.S.C. § 3742, and we have held that
because rulings on Rule 35(b) motions fall within the commonsense meaning of
this phrase, they are appealable in accordance with § 3742, 

–35. Even so, we have noted that “[a] district court’s decision to grant
or deny a Rule 35(b) motion is a discretionary one from which an appeal generally

will not lie under § 3742” because this statute does not permit challenges to the
merits of the decision or the extent of the reduction. United States v. Manella, 

, 203 (11th Cir. 1996). At the same time, we have recognized that
appellate jurisdiction exists where the appellant challenges the district court’s
application of Rule 35(b) because doing so calls into question whether the
modification was imposed in violation of law. 

claims that his sentence was modified in violation of law,
specifically that the district court’s ruling on the second Rule 35(b) motion was
procedurally unreasonable; he thus concludes that jurisdiction lies under
§ 3742(a)(1). The government responds that we lack jurisdiction. The gist of its




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argument is that binding circuit precedent forecloses Hardman’s allegations of
error and thus jurisdiction does not lie over his appeal. We disagree.

      The government’s argument conflates a lack of merit with a lack of
jurisdiction. At bottom, whether we have subject-matter jurisdiction is a question
of our constitutional or statutory power to hear Hardman’s appeal rather than the
merit of his appeal. See e.g., Steel Co. v. Citizens for a Better Env’t, 

,
89, 

, 1010 (1998). Of course, this rule is not ironclad. For
example, federal courts may dismiss for lack of subject-matter jurisdiction “when

the claim is so insubstantial, implausible, foreclosed by prior decisions of [the
Supreme] Court, or otherwise completely devoid of merit as not to involve a
federal controversy.” 

Indian Nation of N.Y. v. County of
Oneida, 

, 666, 

, 777 (1974)) (internal quotation marks
omitted). But even if our precedent forecloses Hardman’s allegations that the
district court modified his sentence in violation of the law—a conclusion about the
merits of his appeal—his allegations come nowhere close to falling within this
narrow exception. Put simply, to decide whether Hardman’s “sentence was
‘imposed in violation of law,’ we must address the merits.” United States v.
Lightfoot, 

, 595 (5th Cir. 2013). Our conclusion that jurisdiction
exists is consistent with not only our precedent, see 

;

–35, 1037, but also that of our sister circuits,
see 

& n.6 (finding jurisdiction under similar
circumstances and collecting cases from our circuit as well as the First, Fourth,
Seventh and Ninth Circuits).


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                                             III.

       Turning to the merits, we review whether the district court imposed a
sentence in violation of law de novo. 

–03.3 Hardman

contends that the district court’s ruling on the second Rule 35(b) motion was
procedurally unreasonable, and thus imposed in violation of law, in three ways. 4
We consider each contention in turn.

                                              A.

       Hardman contends that the district court erred by failing to consider the
sentencing factors in § 3553(a), specifically subsection (a)(6)’s requirement that
courts avoid unwarranted “sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” In his view, the district

court violated this requirement by rejecting his request to have his sentence
reduced to 168 months, the sentence imposed on his coconspirator. This
contention is unavailing.


       3
         Hardman contends that we review the district court’s Rule 35(b) ruling for
reasonableness in the wake of United States v. Booker, 

, 

(2005). See
Gall v. United States, 

, 46, 

, 594 (2007) (“Our explanation of
‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse-of-
discretion standard of review now applies to appellate review of sentencing decisions.”). This
contention is incorrect. Neither Booker nor any post-Booker binding precedent has changed the
standard of review that applies to sentence modifications under Rule 35(b). Thus, we remain
bound by Manella under the prior-panel-precedent rule. See United States v. Patron, 

, 1331 (11th Cir. 2014) (discussing narrowness of our circuit’s prior-panel-precedent rule).
       4
        The parties dispute whether Hardman properly preserved his objection, and each
contends that we should apply a different standard of review. We need not resolve this dispute,
however, because we conclude that Hardman’s arguments are meritless under even de novo
review.


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      To be sure, “Rule 35(b) does not prohibit the consideration of [the §
3553(a)] factors in deciding to what extent a defendant’s sentence should be

reduced for substantial assistance.” 

. So in ruling on a
Rule 35(b) motion, a district court does not err by considering these factors to
decide the extent of the warranted reduction. 

caselaw is clear: “the
only factor that may militate in favor of a Rule 35(b) reduction is the defendant’s
substantial assistance.” 

Thus, the district court was not required to
consider the need to avoid unwarranted sentencing disparities.

      Even more importantly, Manella teaches that the district court would have
committed reversible error—imposed a sentence modification in violation of law—
had it reduced Hardman’s sentence an additional 20 months based on any factor
other than his substantial assistance. This is true regardless of whether Hardman is
correct that he and his coconspirator are so similarly situated that the 20-month
difference in their sentences constitutes an unwarranted disparity under
§ 3553(a)(6). Accordingly, we conclude that the district court did not err by
refusing to grant an additional 20-month reduction for the sole purpose of
remedying the putative unwarranted sentence disparity between him and his
coconspirator.

                                         B.

      Hardman contends that the district court committed procedural error by not
considering his nonfrivolous “mitigating arguments” or “mitigating factors”: his
additional, truthful assistance and the risk of danger to himself and family resulting



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from his cooperation. In short, he claims that the district court must consider the
factors in Guideline 5K1.1 when deciding the extent of a Rule 35(b) reduction

because the distinction between substantial-assistance reductions under § 5K1.1
(and 18 U.S.C. § 3553(a))5 and those under Rule 35(b) is one of timing rather than
substance. See United States v. Orozco, 

, 1313 (11th Cir. 1998)

(“[W]e have clarified the ‘temporal framework’ involved with the government’s
acknowledging a convicted defendant’s substantial assistance prior to sentencing
in a section 5K1.1 motion at sentencing and the government’s rewarding a
convicted defendant’s substantial assistance to the government after sentencing
with a Rule 35(b) motion.”).
       Hardman’s contention is belied by the record. During the hearing on the

second Rule 35(b) motion, the district court specifically noted that the danger
inherent in the assistance Hardman provided was an important consideration and
that the extent of his reduction accounted for that danger and his assistance. We
thus conclude that the district court did not commit a procedural error in granting
the government’s request for a sentence modification under Rule 35(b).

                                               C.

       Finally, Hardman contends that the district court failed to adequately explain
its reasons for the reduction he received, specifically why it rejected his
nonfrivolous mitigating arguments. Essentially, he asserts that the court failed to

       5
         Section 5K1.1 permits the district court to grant a substantial-assistance departure from
only the Sentencing Guidelines; thus, the government must also file a motion under 18 U.S.C.
§ 3553(e) to request a departure from a statutory-minimum sentence, as it did in this case.


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comply with § 3553(c) and the Supreme Court’s guidance on the need for reasoned
explanations in sentencing decisions. See Rita v. United States, 

,

356–57, 

, 2468 (2007). We conclude from the record, however,
that this contention is without merit. Thus, assuming arguendo that § 3553(c)
applies to Rule 35(b) rulings, we hold that the district court did not commit
procedural error in modifying Hardman’s sentence.

                                        IV.

      Having carefully considered the record and the parties’ briefs, we conclude
that Hardman’s allegations of procedural error lack merit. Accordingly, we affirm
the district court’s sentencing modification, reducing Hardman’s sentence to 188
months, and Hardman’s sentence.
      AFFIRMED.




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