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.
        

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