United States v. McAndrews

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1596

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIE McANDREWS, a/k/a WILLIE WILSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

John F. O'Donnell for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, Nicholas M.

Gess and William H. Browder, Jr., Assistant United States

Attorneys, were on brief, for the United States.

December 13, 1993

SELYA, Circuit Judge. This appeal conveys two
SELYA, Circuit Judge.

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

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

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

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

We deal first with the jurisdictional quandary. It has

two aspects. We treat them sequentially.

A. The Departure Analogy.

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

States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113

S. Ct. 224 (1992); United States v. Hilton, 946 F.2d 955, 957

(1st Cir. 1991); United States v. Romolo, 937 F.2d 20, 22 (1st

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

2An exception applies when the sentencing court's ruling
results from a mistake of law. See, e.g., Amparo, 961 F.2d at

292; Hilton, 946 F.2d at 957. Thus, "appellate jurisdiction may

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

v. Mariano, 983 F.2d 1150, 1153 (1st Cir. 1993) (collecting

cases).

3

court's generosity." United States v. Pighetti, 898 F.2d 3, 4

(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

456, 464 (1st Cir. 1993); United States v. Gregorio, 956 F.2d

341, 345 n.5 (1st Cir. 1992); Pighetti, 898 F.2d at 4.

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.

1993); United States v. Correa, 995 F.2d 686, 687 (7th Cir.

1993); United States v. Womack, 985 F.2d 395, 401 (8th Cir.),

cert. denied, 114 S. Ct. 276 (1993); United States v. Mariano,

983 F.2d 1150, 1153-54 (1st Cir. 1993).

In this appeal, the government attempts to analogize

such "substantial assistance" departures to sentence reductions

3Beyond inviting a comparison between the triggering
mechanisms, compare U.S.S.G. 5K1.1 with U.S.S.G. 5K2.0, it

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-

55 (1st Cir. 1993); Romolo, 937 F.2d at 24-25.

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.,

Mariano, 983 F.2d at 1156 (discussing factors influencing

departures under U.S.S.G. 5K1.1) with, e.g., United States v.

Milken, 1992 U.S. Dist. LEXIS 11670 at *3-*5 (S.D.N.Y. Aug. 5,

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.

United States, 431 U.S. 651, 656 (1977). Prior to the advent of

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,

518 (1956); Berman v. United States, 302 U.S. 211, 212-13 (1937).

Nevertheless, the theoretical possibility of an appeal had few

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.

Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992).

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

United States v. Ruiz-Garcia, 886 F.2d 474, 476-77 & n.4 (1st

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,

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

3742(b).

6

e.g., S. Rep. No. 225, 98th Cong., 2d Sess. (1983), reprinted in

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

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,

6This statement is, of course, subject to the exception
previously mentioned. See supra note 2. We see no reason why

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

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

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,

Catlin v. United States, 324 U.S. 229, 233 (1945)). An order

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

States v. Slade, 980 F.2d 27, 32 (1st Cir. 1992) (entertaining

appeal from denial of post-judgment motion to present new

evidence pursuant to Fed. R. Crim. P. 33); Fiore v. Washington

Cty. Community Mental Health Ctr., 960 F.2d 229, 232-33 (1st Cir.

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,

820 F.2d 20, 22-24 (1st Cir. 1987) (entertaining appeal from

grant of sentence reduction motion under former Rule 35(b)); see

8

also cases cited infra p.12 (entertaining appeals from denials of

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

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

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

least in certain circumstances, a prevailing party cannot appeal

from an order or judgment entered in his favor. See Sierra Club

v. Marsh, 907 F.2d 210, 213 (1st Cir. 1990); In re Public Serv.

Co., 898 F.2d 1, 2 (1st Cir. 1990); Bath Iron Works Corp. v.

Coulombe, 888 F.2d 179, 180 (1st Cir. 1989). And, here, the

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

Guaranty Nat'l Bk. v. Roper, 445 U.S. 326, 334 (1980) (explaining

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,

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

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

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

bound by it. See, e.g., Doughty v. Underwriters at Lloyd's,

London, F.3d , (1st Cir. 1993) [No. 93-1174, slip op.

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

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

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

Cir.) (warning that issues adverted to in a perfunctory manner,
unaccompanied by developed argumentation, are waived), cert.

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

United States v. McGill, F.3d , (1st Cir. 1993) [No.

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

States v. Garcia, 954 F.2d 12, 19 (1st Cir. 1992) (sentencing);

United States v. Panitz, 907 F.2d 1267, 1273-74 (1st Cir. 1990)

(outrageous misconduct); United States v. O'Brien, 895 F.2d 810,

817 (1st Cir. 1990) (motion for Nebbia hearing); United States v.

Saade, 652 F.2d 1126, 1135-36 (1st Cir. 1981) (selective

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.

DeCologero, 821 F.2d 39, 44 (1st Cir. 1987); United States v.

Heller, 797 F.2d 41, 42 (1st Cir. 1986); United States v. Foss,

denied, 494 U.S. 1082 (1990).

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

United States v. Winfield, 960 F.2d 970, 972 (11th Cir. 1992);

United States v. Collins Spencer Catch The Bear, 727 F.2d 759,

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.

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

11Appellant cites United States v. Yesil, 968 F.2d 1122

(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

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)

(superseding earlier opinion). In the second place, written plea
agreements obligated the government in Yesil, upon completion of

the defendants' cooperation, to apprise the court fully
concerning the nature and extent of defendants' actions. Id. at

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

agreement between the defendant and the prosecution. Hence,
Yesil is inapposite.

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].

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,

e.g., DeCologero, 821 F.2d at 44 (cautioning that evidentiary

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

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

F.2d at 1173; see also Franks v. Delaware, 438 U.S. 154, 155-56

(1978) (requiring "substantial preliminary showing" antecedent to

evidentiary hearing); Saade, 652 F.2d at 1135 (similar). In this

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

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.

15