In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1226
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HAVIS W EBSTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-CR-112—Barbara B. Crabb, Judge.
A RGUED S EPTEMBER 9, 2011—D ECIDED JANUARY 19, 2012
Before C UDAHY, P OSNER, and W ILLIAMS, Circuit Judges.
C UDAHY, Circuit Judge. In this case, Chavis Webster
appeals a district court order granting a government
motion to reduce his sentence for his substantial assist-
ance to law enforcement. See Fed. R. Crim. P. 35(b)(2).
Webster contends that the district court erred by not
considering the 18 U.S.C. § 3553(a) factors when it
declined to grant the full reduction supposedly requested
by defendant. The case presents interesting issues of the
2 No. 11-1226
relation between United States v. Chapman, 532 F.3d 625
(7th Cir. 2008), and United States v. Shelby, 584 F.3d
743 (7th Cir. 2009). We affirm.
On February 25, 2009, defendant Webster and
his associate Cherish Jones sold heroin to an individual
acting as an informant. The government submitted
this evidence to a federal grand jury, and it returned an
indictment against Webster, alleging that he distributed
heroin in violation of 21 U.S.C. § 841(a)(1). In Novem-
ber 2009, Webster pleaded guilty and was subsequently
sentenced to 216 months in prison.1 In light of his guilty
plea and agreement to provide substantial assistance,
the government agreed to request a reduced sentence
if Webster provided such assistance. Webster in fact
did and in November 2010 the government filed a
Rule 35(b) motion requesting a sentence reduction
based on his substantial assistance in the investigation
and prosecution of others. The district court then held
a hearing on the motion and reduced Webster’s sen-
tence from 216 months to 168 months in light of his sub-
stantial assistance. But Webster seeks a further reduc-
tion and appeals.
An appeal from a Rule 35(b) order is an appeal from
an “otherwise final sentence,” over which we have juris-
diction only in limited circumstances. United States v.
Chapman, 532 F.3d 625, 628 (7th Cir. 2008) (citing United
1
This was a downward departure from his advisory guide-
lines range of 235-240, which was calculated according to his
offense level, 33, and his qualification as a career offender.
No. 11-1226 3
States v. McGee, 508 F.3d 442, 444 (7th Cir. 2007)); see also
18 U.S.C. § 3742(a). It is not our role in Rule 35(b) appeals
to review a district court’s exercise of its discretion.
See McGee, 508 F.3d at 444-45 (“[O]ur jurisdictional man-
date . . . does not extend to a district court’s discre-
tionary decisions regarding sentencing.”). Our task,
instead, is to determine whether a reduction in sen-
tence was imposed in violation of the law. Id. As we
understand it, the defendant’s argument on appeal is
that the district court erred as a matter of law when
it declined to grant the 120-month reduced sentence
requested by both parties and without considering the
§ 3553(a) factors. Because we have recognized that as-
sertions of methodological error allege a mistake of
law, we have jurisdiction to hear defendant’s appeal.
Chapman, 532 F.3d at 630 (“We certainly have jurisdic-
tion to consider whether a district court is required to
reevaluate the section 3553 sentencing factors . . . .”).
I.
First, it is unclear whether the premise of the
defendant’s argument—that there was a request for a
reduced sentence of 120 months—is, in fact, true. From
our review of the record, we agree with the govern-
ment that no party had requested a specific sentence
reduction. The government made no statements at the
motion hearing, and instead rested on the information
in its supporting affidavit, which was also silent on the
amount of reduction sought. See Appellee’s Br. 8; Motion
Hr’g Tr. 3.
4 No. 11-1226
The record shows that defense counsel similarly never
requested a reduced sentence of 120 months. The
closest defense counsel came to making a request was
when he asked the court for “as large a reduction as
possible.” Hr’g Tr. 3. The defendant contends that the
request for “as large a reduction as possible” was in
reference to an earlier request for a 120-month sentence
made at the initial sentence hearing. Appellant Reply
Br. 3. Taken most charitably, these statements are insuf-
ficient to constitute a request for a specific sentence
reduction. Not once was the 120-month figure uttered,
leaving us perplexed as to how the district court
could have committed an error as a matter of law by
deviating from a non-existent number.
Defense counsel at oral argument intimated that the
Rule 35(b) hearing was so brief that he was unable to
request a specific reduction figure. The transcript of the
proceeding demonstrates otherwise. After indicating
that it would grant the motion, but before making its
final ruling, the district court permitted defense counsel
to make remarks in support of his client. Hr’g Tr. 3. After
referencing his prior remarks at the sentencing hearing,
defense counsel emphasized the extent of his client’s
cooperation and the hardship his imprisonment was
causing him and his family. Id. At no point was he inter-
rupted and he in fact ended his remarks with “that is
all I have, Your Honor.” Id. at 4. Nothing about the
hearing indicates that defense counsel was unable to
make explicit his client’s desire for a reduced sentence
of 120 months.
No. 11-1226 5
We find, therefore, that the defendant did not request
a reduced sentence of 120 months. Unable to accept
the defendant’s premise, we find it difficult to under-
stand how the court could have committed error by
imposing a sentence higher than one that was never
requested by a party. As a result, the remainder of his
argument on appeal is without merit.
II.
Even if we assume that the defendant explicitly re-
quested a reduced sentence of 120 months, defendant’s
argument on appeal nevertheless fails because, as we
have previously explained, Rule 35(b) hearings do not
provide an opportunity for a full resentencing. United
States v. Shelby, 584 F.3d 743, 745 (7th Cir. 2009).
Rule 35 provides that “[a] court may reduce a sentence
if the defendant . . . provided substantial assistance in
investigating or prosecuting another person,” and, in the
case that the assistance occurs more than a year after
sentencing, that assistance satisfies one of three stat-
utorily defined criteria. See Fed. R. Crim. P. 35(a) & (b).
As the rule’s plain language indicates, in ruling on a
Rule 35(b) motion, the role of the court is limited to
assessing the extent of the defendant’s assistance to the
government and whether, and to what degree, that assis-
tance merits a reduction in his or her sentence. Rule 35
serves the limited purpose of facilitating law enforcement
by enabling the government to elicit assistance from
an offender by asking the court to reduce the offender’s
sentence in recognition of his assistance. Shelby, 584 F.3d
6 No. 11-1226
at 745. As we stated in Shelby, the filing of a Rule 35(b)
motion by the government does not then permit a de-
fendant to argue for a full resentencing on the basis
of something other than the assistance he provided to
the government. Id. To allow otherwise, we said, would
create a “triple anomaly.” Id. at 745 (“It would create
arbitrary distinctions between similarly situated defen-
dants; it would create the equivalent of a judge-adminis-
tered parole system . . .; and it would impair the ob-
jective of Rule 35(b), which . . . is to assist law enforce-
ment.”).
The direction of Shelby is clear and controls this case.
It is also the rule in other circuits. United States v. Ross,
280 Fed. Appx. 896, 897-98 (11th Cir. 2008); United States
v. Doe, 351 F.3d 929, 933 (9th Cir. 2003). Contrary to the
defendant’s assertion, the district court was not required
to consider the § 3553(a) factors. Instead, in conformance
with the purpose of the rule, the district court based
its decision on its evaluation of the defendant’s
assistance and granted a reduction consistent with that
determination. See Hr’g Tr. 4.
The defendant relies on our decision in United States
v. Chapman, 532 F.3d 625 (7th Cir. 2008), to argue that
once a district court grants a Rule 35(b) motion, but
deviates upward from the requested reduction, it must
base its eventual sentence on § 3553(a) factors.2 The
defendant misreads Chapman. In that case we expressly
2
This is an argument we approach with some trepidation
here, as shown above, it is far from clear that the defendant
in fact made such a request.
No. 11-1226 7
reserved the question of “whether . . . a district court
[is] required to consider the section 3553 factors[.]” Chap-
man, 532 F.3d at 630 (emphasis in original). Further,
Chapman cannot provide much help to the defendant
because Chapman involved different facts. In that case,
the government offered a recommendation of a two-
level offense reduction with a sentence at the bottom end
of the resulting guideline range, 84 months. Id. at 632.
Defense counsel agreed with this request. Id. The district
court applied the two-level reduction but sentenced
defendant to 102 months at the higher end of the
resulting guideline range in light of defendant’s sig-
nificant criminal history. Id. The district court first
accepted the purported value of the defendant’s
assistance and then considered the § 3553(a) factors to
determine if the resulting sentence was unjust. Here, the
government made no sentencing recommendation.
Because the parties did not agree on a recommended
reduction, the district’s court appears to have arrived at
the 168-month sentence by examining the value of the
Webster’s assistance.
So to clarify: Shelby stands for the notion that a district
court hearing a Rule 35(b) motion may not use the § 3553(a)
factors to further reduce the defendant’s sentence once
the value of his assistance has been assessed. To allow
otherwise would disturb the underlying original sen-
tence, rather than merely subtract the value of the assis-
tance provided. Chapman gives district courts the option
of using the § 3553(a) factors to determine if granting the
full sentence reduction agreed upon by the two parties
would result in an unjust sentence. In the present case,
8 No. 11-1226
the government did not agree to a specific reduction,
and indeed, the defendant did not propose a specific
reduction. If we adopted Webster’s position, a request
for as large a reduction as possible would always trigger
a review of the § 3553(a) factors. We see no reason to
endorse such an approach.
In short, by arguing that the district was required to
take the § 3553(a) factors into account when deciding
by how much to reduce his sentence, the defendant
seeks a full re-examination of his sentence. This is con-
trary to the language and purpose of Rule 35(b), as in-
terpreted in Shelby and we therefore must reject the
argument.
The defendant failed to request a reduced sentence at
the hearing and therefore is unable to argue that the
court erred by deviating from a requested reduction. In
any event, because Rule 35(b) hearings are not an oppor-
tunity for a full resentencing, the district court cannot
consider factors other than the defendant’s substantial
assistance in deciding by how much to reduce the de-
fendant’s sentence if the reduction is less than the re-
quest. It was therefore not erroneous for the district
court to fail to consider the § 3553(a) factors in reducing
the defendant’s sentence. For these reasons, the judg-
ment of the district court is A FFIRMED.
1-19-12