UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6831
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE FRANZ LINDSAY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:00-cr-00603-CWH-9)
Submitted: October 31, 2007 Decided: November 15, 2007
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, PC, Columbia, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney; Rose Mary Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Franz Lindsay appeals from the district court’s
order granting the Government’s Fed. R. Crim. P. 35(b) motion, but
imposing a zero-month departure. On appeal, Lindsay argues that
the district court improperly considered his prior substantial
assistance, for which a departure had already been given, when
considering the Rule 35(b) motion. The Government argues first
that this court lacks jurisdiction to consider the extent of the
departure. Further, the Government contends that the district
court erred in compelling the Government to file the Rule 35(b)
motion, absent any showing of bad faith or unconstitutional motive.
We affirm.
“[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.), cert. denied, 127 S. Ct.
328 (2006). We do not have “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 application of the
Guidelines.” United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995) (emphasis in original). However, if a defendant “alleg[es]
that his otherwise final sentence was imposed in violation of law
. . . [h]e may make that claim in appealing a ruling on a Rule
35(b) motion.” Hartwell, 448 F.3d at 713. Lindsay’s claim that
- 2 -
the district court erred in considering information other than his
post-sentence cooperation amounts to a claim that he was sentenced
in violation of law. Therefore, we have jurisdiction to hear his
appeal.
Turning to the merits of his appeal, Lindsay alleges that
the district court erroneously considered a prior substantial
assistance departure pursuant to U.S. Sentencing Guidelines Manual
§ 5K1.1 (2004), and his sentence as a whole, instead of focusing
only on his post-sentencing assistance. While the sentencing court
may not grant a substantial assistance departure, or augment such
a departure based on factors other than assistance, it may consider
other factors to limit the departure. See United States v. Doe,
351 F.3d 929, 932-33 (9th Cir. 2003). As such, the district court
did not impose a sentence in violation of law by referring to
factors other than Lindsay’s most recent assistance to explain why
it did not grant a greater departure. Because this conclusion is
determinative of this appeal, we decline to address the
Government’s argument that it was improperly ordered to file the
Rule 35 motion.
Based on the foregoing, we affirm the district court’s
judgment. 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
- 3 -