United States v. Alevras , 213 F. App'x 96 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-11-2007
USA v. Alevras
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3907
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Recommended Citation
"USA v. Alevras" (2007). 2007 Decisions. Paper 1780.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3907
____________
UNITED STATES OF AMERICA
v.
CHRIS G. ALEVRAS,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 97-cr-00099)
District Judge: Honorable Joseph A. Greenaway, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2007
Before: McKEE, AMBRO and FISHER, Circuit Judges.
(Filed: January 11, 2007)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Chris Alevras appeals from the District Court’s denial of his motion to reduce or
terminate his term of supervised release and granting the government’s motion for a one-
year reduction of his term of supervised release pursuant to Rule 35 of the Federal Rules
of Criminal Procedure. For the reasons set forth below, we will dismiss Alevras’s appeal
for lack of jurisdiction.
I.
Alevras pleaded guilty to bank fraud, making a false claim and unlawful
possession of a firearm by a convicted felon in March 1997. He was sentenced to an 87-
month term of imprisonment and five years of supervised release. Approximately one
year after he was released from prison and had begun to serve his term of supervised
release, Alevras filed a motion seeking termination of the remainder of his term of
supervised release on the ground that, while in prison, he had rendered substantial
assistance to federal agents who were investigating corrupt corrections officers. Because
it acknowledged that Alevras had provided assistance while in prison, the government
opposed Alevras’s motion but made its own motion pursuant to Federal Rule of Criminal
Procedure 35(b) for a one-year reduction in Alevras’s remaining term of supervised
release.
Prior to the hearing before the District Court on this matter, the Probation Office
filed a Violation of Supervised Release Report with the District Court, indicating that
Alevras had refused to make timely restitution payments in violation of a condition of his
supervised release. After holding a hearing, the District Court granted Alevras a
conditional reduction in the term of his supervised release. Alevras would receive a one-
year reduction so long as he complied with a court-ordered schedule of restitution
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payments. Should he fail to make those payments, Alevras’s original term of supervised
release would be reimposed.
This timely appeal followed.
II.
Alevras contends that the District Court erred by only reducing his term of
supervised release by one year and by making that reduction dependent on his continued
compliance with a restitution schedule. However, before we may reach the merits of his
appeal, we must satisfy ourselves that we have jurisdiction.
Alevras first advances the position, held only by the First Circuit, that we have
jurisdiction over his appeal pursuant to 28 U.S.C. § 1291. See United States v.
McAndrews, 12 F.3d 273, 278-79 (1st Cir. 1993). However, we have recently expressly
rejected this argument and held, as does every other circuit to have addressed this issue,
that we exercise jurisdiction over appeals from Rule 35(b) motions under the limited grant
given in 18 U.S.C. § 3742. United States v. McKnight, 448 F.3d 237, 238 (3d Cir. 2006).
As an alternative basis, Alevras contends that under § 3742 and the Supreme
Court’s holding in United States v. Booker, 543 U.S. 220 (2005), we may review the
District Court’s grant of the Rule 35(b) motion for reasonableness. This argument is
again foreclosed by our decision in McKnight. “[I]n [United States v.] Cooper we
followed our pre-Booker precedent that we do not have jurisdiction to review a
sentencing court's discretionary decision to depart downward from the Guidelines.”
McKnight, 448 F.3d at 238 (citing United States v. Cooper, 437 F.3d 324, 333 (3d Cir.
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2006)). Therefore, we still lack jurisdiction to consider an appeal from a Rule 35(b)
motion unless it is imposed in violation of law. Id. Our case law clearly states that the
fact that a district court did not reduce a sentence to the extent requested by the defendant
is not a sentence imposed in violation of law. Id. Therefore, we lack jurisdiction to
consider Alevras’s claim.
For the reasons set forth above, we will dismiss Alevras’s appeal for lack of
jurisdiction.
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