United States v. Allen L. Ross , 280 F. App'x 896 ( 2008 )


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  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JUNE 4, 2008
    No. 06-15599                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 04-20203-CR-DMM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ALLEN L. ROSS,
    a.k.a. Bob Brown,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (June 4, 2008)
    Before BARKETT, HULL and PRYOR, Circuit Judges.
    PER CURIAM:
    Allen L. Ross appeals the district court’s order granting the government’s
    motion to reduce Ross’s sentence under Federal Rule of Criminal Procedure 35(b).
    After review, we dismiss in part and affirm in part.
    I. BACKGROUND
    In 2003, pursuant to a written plea agreement, Ross pled guilty to one count
    of conspiracy to possess with intent to distribute cocaine and cocaine base, in
    violation of 
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(A)(ii)-(iii) and 846. The district
    court imposed a 235-month sentence. Ross did not file a direct appeal of his
    conviction or sentence.
    In 2006, the government filed a Rule 35(b) motion, recommending a 50-
    percent reduction in Ross’s sentence due to the significant assistance he had
    provided. At the Rule 35(b) hearing, Ross sought a reduction of almost 75 percent
    to 60 months, arguing that, if the government had filed a U.S.S.G. § 5K1.1 motion
    at his original sentencing, he would have already received a 50-percent reduction
    due to his pre-sentencing substantial assistance and that he was due a further 50-
    percent reduction for his post-sentencing cooperation.
    The district court reduced Ross’s sentence to 108 months’ imprisonment,
    which was more than the 50-percent reduction requested by the government, but
    less than the reduction sought by Ross. Ross did not object to the district court’s
    ruling. This appeal followed.
    2
    II. DISCUSSION
    On appeal, Ross argues that his sentence should have been reduced further.
    We lack jurisdiction, however, to review the refusal to grant a substantial
    assistance reduction or the extent of that reduction. See United States v. Manella,
    
    86 F.3d 201
    , 203 (11th Cir. 1996) (explaining that appellate jurisdiction over a
    Rule 35(b) ruling is limited by 
    18 U.S.C. § 3742
     and does not include a district
    court’s discretionary decision to grant or deny a sentence reduction).1 Thus, to the
    extent Ross seeks a greater sentence reduction, we dismiss this portion of his
    appeal.
    Ross also argues that his reduced sentence was imposed in violation of the
    law, a claim we have jurisdiction to review. See 
    18 U.S.C. § 3742
    (a)(1)
    (permitting appeal of a final sentence that “was imposed in violation of law . . .”);
    Manella, 
    86 F.3d at 203
    . Ross argues that the district court erred in failing to
    consider the factors in 
    18 U.S.C. § 3553
    (a). Because Ross failed to object to the
    1
    We find no merit to Ross’s argument that United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
     (2005), abrogated Manella and expanded our appellate jurisdiction to review a district court’s
    discretionary sentencing reductions under Rule 35(b). See United States v. McGee, 
    508 F.3d 442
    ,
    444-45 (7th Cir. 2007) (concluding that Booker did not affect the scope of appellate jurisdiction
    under § 3742(a) to review Rule 35(b) sentencing reductions); United States v. Haskins, 
    479 F.3d 955
    , 957 (8th Cir. 2007) (same); United States v. McKnight, 
    448 F.3d 237
    , 238 (3d Cir.), cert.
    denied, ___ U.S. ___, 
    127 S. Ct. 117
     (2006) (same). Ross’s citation to United States v. Martin, 
    455 F.3d 1227
     (11th Cir. 2006), is unavailing as Martin did not involve a Rule 35(b) sentencing
    reduction, but a substantial assistance departure from the Sentencing Guidelines under U.S.S.G. §
    5K1.1, the extent of which was reviewable for reasonableness even prior to Booker. See Martin,
    
    455 F.3d at 1236
    .
    3
    Rule 35(b) ruling in the district court, our review is for plain error. See United
    States v. Bennett, 
    472 F.3d 825
    , 831 (11th Cir. 2006).
    The district court has great discretion in deciding whether to grant a Rule
    35(b) motion and the extent of any reduction. See Manella, 
    86 F.3d at 204-05
    .
    The district court may consider the § 3553(a) factors in order to refuse to grant a
    Rule 35(b) motion or to grant a smaller reduction than requested by the
    government. Id. However, in deciding to grant a reduction, the district court may
    not consider any factor that may militate in favor of the reduction other than the
    defendant’s substantial assistance. Id. at 204.
    Because the district court could not and did not consider any factor other
    than Ross’s substantial assistance in determining the extent his Rule 35(b) sentence
    reduction, Ross has failed to show any error, much less plain error, by the district
    court.2 Thus, we affirm this portion of his appeal.
    DISMISSED IN PART; AFFIRMED IN PART.
    2
    Ross also argues that the district court erred by failing to compel the government to file a
    U.S.S.G. § 5K1.1 motion at or before his original sentencing, which he contends violated his due
    process rights. To the extent Ross attempts to challenge his original sentence and the procedures
    used at his original sentencing, these arguments are outside the scope of this appeal. See Fed. R.
    App. P. 4(b) (requiring a criminal defendant to file a notice of appeal within 10 days of the entry of
    the judgment that is being appealed); United States v. Ward, 
    696 F.2d 1315
    , 1317 (11th Cir. 1983)
    (explaining that this Court lacks appellate jurisdiction if the defendant fails to comply with Rule
    4(b)).
    4