UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4125
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID MICHAEL WOODWARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:02-cr-00673-CWH-1)
Submitted: August 3, 2007 Decided: August 23, 2007
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. William E. Day, Winston D. Holliday, Jr.,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Michael Woodward appeals the district court’s order
granting the government’s Fed. R. Crim. P. 35(b) motion to reduce
his sentence. Woodward argues, first, that the district court
abused its discretion in determining the extent of the departure by
considering incorrect information and matters apart from his
cooperation and, second, that he should have received a more
substantial departure to offset the benefit his co-defendants
received from United States v. Booker, 543 U.S. 220 (2005). We
affirm.
Woodward pled guilty in 2003 to conspiracy to possess
oxycodone with intent to distribute, health care fraud, and money
laundering, offenses which arose from his medical practice as owner
and operator of a pain management center in Myrtle Beach, South
Carolina. He subsequently testified at the trial of several
doctors who were his former employees. At his first sentencing
hearing, the district court accepted the parties’ stipulation as to
the drug amount for which Woodward was accountable over the greater
amount recommended by the probation officer, and also reduced an
adjustment for vulnerable victims under U.S. Sentencing Guidelines
Manual § 3A1.1(b) (2002) from four levels to two levels. These
changes reduced the total offense level from 43 to 39 and reduced
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the advisory guideline range from life imprisonment* to 262-327
months. The court then granted the government’s motion for a
substantial assistance departure under U.S. Sentencing Guidelines
Manual § 5K1.1, p.s. (2002), and imposed a sentence of 180 months
imprisonment.
In 2006, the government filed a Rule 35(b) motion for
reduction of sentence based on additional assistance Woodward had
provided since his sentencing. At a hearing in January 2007, the
district court granted the government’s motion, departed downward
by an additional twenty-four months, and imposed a sentence of 156
months. The court stated that, “[i]n our previous departure
downward, we started with the sentence of 720 months, 60 years, and
reduced that sentence to 180 months, which is 15 years.” The court
stated that its practice was to “give a large departure downward
the first time around . . . [a]nd any departures downward
thereafter are not nearly as substantial.” The court further
stated:
Generally, we look at co-defendants and we look at
what they are facing and what they have received by way
of departures downward. In trying to be consistent
therewith, the same may be expected here; but I don’t
think the same treatment is warranted. I do think,
however, that some reason for such apparently
inconsistent treatment should be stated for the record.
*
Because each count carried a statutory maximum of 240 months,
pursuant to USSG § 5G1.2(d), the guideline range became consecutive
sentences of 240 months for each count, or 720 months.
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I, frankly, feel that Doctor Woodward’s involvement
in this matter was entirely different from those of his
co-defendants. He was the one that started this entire
criminal endeavor. He was the one that put it together
and made it work. He brought the others in.
It’s obvious to me that none of these others are
capable of doing what Doctor Woodward did nor, in my
judgment, are they threats to do that. They were down on
their luck, if you please. They were certainly not the
most successful doctors around. He picked them, put them
down there, put them on their feet and gave them a way to
make money.
I don’t think that we have to worry about those
defendants. And I speak of the other doctors that were
involved and the other personnel that were involved
committing similar crimes.
And for that reason, I have concluded in their cases
that they should not be incarcerated for long periods of
time. I have concluded in their cases that they do not
have the wherewithal to write prescriptions for illegal
drugs anymore not is it likely that they ever will.
In the case of Dr. Woodward, I suspect strongly
that, if I were to release him today, he would start
another clinic such as the one in Myrtle Beach in short
order. He’s capable of doing that, and I believe that he
is at risk [to] do that.
In this appeal, the first issue is the appealability of
the district court’s order granting the Rule 35(b) motion.
“[A]ppeals from rulings on Rule 35(b) motions are governed by 18
U.S.C. § 3742 [2000]. . . .” United States v. Hartwell, 448 F.3d
707, 712 (4th Cir. 2006) (citing United States v. Pridgen, 64 F.3d
147, 149 (4th Cir. 1995)). We lack “jurisdiction to review the
extent of the district court’s downward departure, except in
instances in which the departure decision resulted in a sentence
imposed in violation of law or resulted from an incorrect
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application of the Guidelines.” United States v. Hill, 70 F.3d
321, 324 (4th Cir. 1995). However, if a defendant “alleg[es] that
his otherwise final sentence was imposed in violation of law he may
make that claim in appealing a ruling on a Rule 35(b) motion.”
Hartwell, 448 F.3d at 713.
Woodward’s claim that the district court considered
incorrect information and erred in considering information other
than his cooperation amounts to a claim that he was sentenced in
violation of law. Therefore, we have jurisdiction over his appeal.
Woodward first alleges that the district court
erroneously stated that his guideline range was initially 720
months, and thus the court “misstated the record in terms of where
the § 5K1.1 departure started from and why the Rule 35 reduction
should be limited.” While Woodward is correct in saying that the
district court did not begin its departure at 720 months, it is not
clear from the record that the court meant to say that it departed
from 720 months to 180 months. Rather, it appears that the court
stated correctly that, at the first sentencing hearing, Woodward’s
sentence was reduced overall from 720 months to 180 months.
Although the court failed to explain the steps by which the
sentence was reduced, we are satisfied that any misstatement does
not establish that the court’s ruling on the Rule 35 motion
constituted a sentence in violation of law.
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Woodward also asserts that the court abused its
discretion by making an unsupported distinction between him and
his co-defendants, thus “creating unwarranted co-defendant
disparity . . . .” Having heard the trial evidence, the court
assessed Woodward’s culpability relative to his co-defendants
differently than Woodward would have liked, but Woodward has not
established that the court relied on incorrect information. In a
related claim, Woodward contends that the court erred when it
considered factors apart from his assistance in deciding to give a
lesser departure than it did at the first sentencing. While we
have held that the district court may consider only the defendant’s
assistance in deciding how far it will depart downward to reward
the defendant, United States v. Pearce, 191 F.3d 488, 492 (4th Cir.
1999), several circuits have held the court may consider other
factors in limiting the extent of the departure. United States v.
Neary, 183 F.3d 1196, 1198 (10th Cir. 1999); United States v.
Manella, 86 F.3d 201, 203-05 (11th Cir. 1996); United States v.
Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir. 1994). Thus, the
sentencing court may not grant a substantial assistance departure
or augment such a departure based on factors other than assistance,
but it may consider other factors to limit the departure. United
States v. Doe, 351 F.3d 929, 932-33 (9th Cir. 2003).
In light of these authorities, we conclude that the
district court did not abuse its discretion or impose sentence in
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violation of law by referring to factors other than Woodward’s
assistance to explain the extent of its departure. Moreover, under
Pearce, Woodward’s claim that he should have received a greater
departure to give him a benefit from Booker is without merit.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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