United States v. Chapman, Darryl ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-3637 & 07-3639
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRYL W. CHAPMAN and JOHN FRANK,
also known as JACK FRANK,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 06 CR 9 and 06 CR 65—John C. Shabaz, Judge.
____________
ARGUED MAY 28, 2008—DECIDED July 10, 2008
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD,
Circuit Judges.
RIPPLE, Circuit Judge. Darryl Chapman and John Frank
each were convicted and sentenced for unrelated drug
crimes. While serving their sentences, both men independ-
ently provided substantial assistance to the Govern-
ment. Accordingly, the Government filed motions to
reduce their otherwise final sentences under Federal
Rule of Criminal Procedure 35(b). The district court
granted the Government’s motions, reducing Mr. Chap-
man’s sentence from 120 to 102 months and Mr. Frank’s
2 Nos. 07-3637 & 07-3639
sentence from 84 to 72 months. On appeal, the defendants
contend that the district court failed to consider properly
their arguments for greater sentence reductions. For the
reasons set forth in this opinion, we affirm the judgment
of the district court.
I
BACKGROUND
Darryl Chapman and John Frank each pleaded guilty to
unrelated charges of knowingly and intentionally dis-
tributing cocaine in violation of 21 U.S.C. § 841(a)(1). On
April 19, 2006, the district court sentenced Mr. Chapman to
120 months’ imprisonment. On September 13, 2006, the
district court sentenced Mr. Frank to 84 months’ imprison-
ment. Both of these sentences were within the applicable
sentencing guidelines range, but both were at the higher
end of their respective ranges.
After they were sentenced, both defendants independ-
ently gave substantial assistance to the Government. At
great risk to the safety of his family and himself, Mr.
Chapman gave law enforcement officers the name of his
former cocaine source. His cooperation resulted in the
apprehension and conviction of a major source of mari-
juana and cocaine distribution in the area. Mr. Frank also
named his drug source, and that information assisted in
the conviction of three other individuals. In return for
this assistance, the Government filed a motion to request
a reduction in their sentences under Rule 35(b).
At Mr. Chapman’s hearing before the district court, both
the Government and Mr. Chapman’s counsel noted the
timeliness, truthfulness, completeness and reliability of
Nos. 07-3637 & 07-3639 3
his assistance, as well as the fact that Mr. Chapman had
been threatened in prison because of his cooperation. In
light of these circumstances, the Government requested
that the court reduce Mr. Chapman’s offense level by two
levels and then impose a sentence at the bottom of the
resulting guidelines range—specifically, 84 months. Mr.
Chapman agreed with this recommendation.
The district court granted the Government’s motion and
reduced Mr. Chapman’s offense level by two levels;
however, it imposed a sentence of 102 months, a sen-
tence at the high end of the guidelines range. The court
remarked that Mr. Chapman’s significant criminal history
counseled against imposing a lower sentence, and it
stated that a sentence of 102 months “will still hold this
defendant accountable for his criminal conduct while
factoring in his substantial assistance.” Chapman Tr. at 7-8.
Similarly, at Mr. Frank’s hearing, the Government and
the defense counsel requested that the court reduce Mr.
Frank’s sentence based upon his significant assistance. The
Government did not propose a particular reduction, but
Mr. Frank suggested a five-level reduction. The court
granted the Government’s motion and decided to reduce
Mr. Frank’s offense level by one level. It sentenced Mr.
Chapman to 72 months’ imprisonment, a sentence at the
high end of the new guidelines range. Much like it did in
Mr. Chapman’s case, the court emphasized Mr. Frank’s
significant prior criminal history as well as the substantial
quantity of drugs that had been involved in his crime. The
court stated that 72 months’ imprisonment will “hold
this defendant accountable for his criminal conduct
while factoring in his substantial assistance.” Frank Tr. at 8.
4 Nos. 07-3637 & 07-3639
II
DISCUSSION
A.
An appeal from a Rule 35(b) order is an appeal from an
“otherwise final sentence,” over which we have jurisdic-
tion only in limited circumstances. United States v. McGee,
508 F.3d 442, 444 (7th Cir. 2007); see also 18 U.S.C. § 3742(a).
Section 3742 does not grant appellate courts jurisdiction
to review a district court’s exercise of its discretion
under Rule 35(b). See McGee, 508 F.3d at 444-45 (“[O]ur
jurisdictional mandate is limited and does not extend to
a district court’s discretionary decisions regarding sen-
tencing.”).1 Accordingly, our review of a sentence reduc-
tion here is more limited than our review of an original
sentence. We ask only whether the reduction was imposed
in violation of the law, not whether the new sentence
imposed was reasonable. See id. at 445.
The Government characterizes the defendants’ claims
as mere complaints that the district court did not exercise
its discretion to reduce their sentences to the extent they
had hoped. In the Government’s view, the defendants’
arguments do not amount to an allegation that they
were sentenced “in violation of law”; therefore, in its
1
See also United States v. McDowell, 117 F.3d 974, 978 (7th Cir.
1997) (“We thus lack jurisdiction to hear McDowell’s claim
that the district court abused its discretion by granting a
reduction too paltry to reflect the value of his post-sentencing
assistance to the government.”); United States v. Haskins, 479
F.3d 955, 957 (8th Cir. 2007); United States v. McKnight, 448
F.3d 237, 238 (3d Cir. 2006); United States v. Sykes, 356 F.3d
863, 865 (8th Cir. 2004).
Nos. 07-3637 & 07-3639 5
view, we do not have jurisdiction to consider their
claims under section 3742.
If the defendants’ arguments could be reduced to the
simple claim that the district court, after considering the
appropriate factors, should have granted a greater re-
duction, then appellate review indeed would be imper-
missible here. We cannot accept, however, the Govern-
ment’s characterization of the defendants’ arguments. As
we understand their arguments, Mr. Chapman and
Mr. Frank do not simply contend that the district court
should have reduced further their sentences. Instead,
they submit that the district court, in determining the
proper sentence, considered factors that it should not
have considered (i.e., factors already considered at the
original sentencing), and failed to consider factors that it
should have considered (i.e., the disparity between the
defendants’ reduction and reductions granted to other
defendants who had given similar levels of assistance to
the Government, and, in Mr. Chapman’s case, the fact
that both the Government and the defendant agreed on a
suggested sentence of 84 months). We suggested in
McDowell that an assertion of this type of methodological
error “alleges an error of law subject to our jurisdiction
under section 3742(a).” 117 F.3d at 978; see also United
States v. Doe, 351 F.3d 929, 932 (9th Cir. 2003) (holding
that the appellate court did have jurisdiction under section
3742 to review whether the district court’s consideration
of factors other than substantial assistance in denying
the Government’s Rule 35(b) motion was improper); United
States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996) (same).
Consequently, we have jurisdiction to consider the de-
fendants’ legal claims.
6 Nos. 07-3637 & 07-3639
B.
The defendants submit that the district court imposed
their sentences “in violation of law,” 18 U.S.C. § 3742(a),
for three reasons. First, they contend that the district
court focused improperly upon their criminal histories
and the nature of their crimes, factors already considered
at their original sentencing. Second, they contend that
the district court improperly failed to consider their
arguments regarding the potential for unwarranted
sentencing disparities. Third, Mr. Chapman suggests that
the district court’s dismissal of the Government’s request
for a sentence of 84 months, without explanation, was
unwarranted. We shall consider each of these arguments
in turn.
1.
To the extent that the defendants contend that the dis-
trict court’s consideration of their criminal histories and
the nature of their crimes was improper because those
factors already had been considered at the initial sen-
tencing hearing, we have jurisdiction to consider their
claim. The substantive argument made here was made in
the Ninth Circuit case of Doe, 351 F.3d at 932, and in an
Eleventh Circuit case relied upon by the defendants,
Manella, 86 F.3d at 203-05, although it ultimately
was rejected by both courts. The Ninth Circuit in Doe
held that a court may look to the section 3553 factors in
imposing a new sentence under Rule 35(b), even though
those factors already had been considered at the orig-
inal sentencing hearing. Doe, 351 F.3d at 932. Similarly,
the Eleventh Circuit held that Rule 35(b) does not pro-
hibit consideration of the section 3553 factors, including
Nos. 07-3637 & 07-3639 7
the seriousness of a defendant’s offense, in deciding the
extent to which a defendant’s sentence should be re-
duced for substantial assistance. Manella, 86 F.3d at 204-05.
The reasoning of these decisions is persuasive. Nothing
in the text of Rule 35(b) limits the factors that may
militate against granting a sentence reduction or for
granting a smaller reduction than requested. The defen-
dants do not provide any persuasive reasons for re-
stricting the court’s consideration to factors not con-
sidered at the original sentencing hearing. On the other
hand, a faithful and pragmatic adherence to the mandate
of 18 U.S.C. § 3553(a) counsels that the nature and extent
of any reduction be determined in light of all the sen-
tencing factors set forth in the statute. Post-arrest coopera-
tion cannot be assessed in a vacuum. Whether such cooper-
ation represents an opportunistic attempt to obtain a
sentence reduction or a genuine alteration in the defen-
dant’s life perspective can best be determined by assessing
that cooperation in light of earlier criminal history and
the nature of the crime for which the defendant is pres-
ently being sentenced. Accordingly, we conclude that
the district court did not act in violation of the law when
it considered the defendants’ prior criminal histories and
the seriousness of their offenses in determining the
extent of the reductions granted under Rule 35(b).
At oral argument, defense counsel appeared to concede
that the district court was permitted to consider the
defendants’ prior criminal histories and the nature of
their offenses; instead, he objected only to the excessive
weight that was given to these factors. To the extent that
the defendants object to the manner in which the district
court chose to exercise its discretion, however, we do not
have jurisdiction to review their claims. See McGee, 508
F.3d at 444-45; McDowell, 117 F.3d at 978.
8 Nos. 07-3637 & 07-3639
2.
The defendants next object to the district court’s alleged
refusal to consider their non-frivolous arguments in
favor of greater sentence reductions. At their hearings
before the district court, both Mr. Chapman and Mr. Frank
emphasized that the amount of assistance that they had
provided to the Government was greater than the typical
case of assistance, which often results in a one- or two-level
reduction. The defendants also referenced other cases
in which courts had reduced a defendant’s sentence by
more than thirty percent for providing substantial assis-
tance, and they suggested that a greater reduction
would prevent unwarranted sentencing disparity among
like defendants—a factor to be considered under 18
U.S.C. § 3553.
In its explanation of the sentences it imposed, the dis-
trict court did not address explicitly the defendants’
contention that their assistance to the Government had
been exceptional; nor did it mention the concern of poten-
tial sentencing disparities. The court simply noted that a
specific reduction in the defendants’ offense level (two
levels for Mr. Chapman, one level for Mr. Frank) was
appropriate because they had provided the Govern-
ment with substantial assistance; however, it em-
phasized that this assistance did not wash away the
defendants’ criminal histories and conduct. Chapman Tr.
at 6-7; Frank Tr. at 8. The court concluded that a sen-
tence at the higher end of the resulting guidelines range
was necessary to account properly for these important
factors. Chapman Tr. at 6-7; Frank Tr. at 8. In both cases,
it stated that the sentence it imposed was “reasonable,
responsible, relevant, and necessary to accomplish these
purposes as set forth in 18 United States Code Section
Nos. 07-3637 & 07-3639 9
3553(a). Such a sentence will still hold this defendant
accountable for his criminal conduct while factoring in
his substantial assistance.” Chapman Tr. at 7-8; Frank Tr. at
8 (identical statements).
a.
We first address the defendants’ contention that the
district court committed legal error by failing to consider
the potential for sentencing disparities among sim-
ilarly situated defendants. Relying on Rita v. United
States, 127 S. Ct. 2456, 2468 (2007), and United States v.
Cunningham, 429 F.3d 673, 676 (7th Cir. 2005),2 they sub-
mit that the sentencing court, if asked by either party,
must consider the various sentencing factors set forth in
18 U.S.C. § 3553(a). These factors include the need to
avoid unwarranted sentencing disparities in like cases. See
18 U.S.C. § 3553(a)(6).
We certainly have jurisdiction to consider whether a
district court is required to reevaluate the section 3553
sentencing factors and, more particularly, to consider the
potential for sentencing disparities when granting a
sentence reduction under Rule 35(b). However, we
need not decide the issue at this time. Whether or not the
district court was required to consider the section 3553
factors when granting a sentence reduction under
Rule 35(b), the records reveal that the court in fact did
so here. Although the court did not mention the phrase
“sentencing disparity” in either of its opinions, it did
2
See also United States v. Miranda, 505 F.3d 785, 792 (7th Cir.
2007); United States v. Acosta, 474 F.3d 999, 1003-04 (7th Cir.
2007).
10 Nos. 07-3637 & 07-3639
emphasize other relevant section 3553(a) factors—namely,
the nature of the defendants’ criminal conduct and their
prior criminal histories. It further noted that the imposed
sentences were “reasonable, responsible, relevant and
necessary to accomplish these purposes as set forth in 18
United States Code Section 3553(a).” Chapman Tr. at 7;
Frank Tr. at 8. In other words, the court chose to exercise
its discretion in a manner that emphasized the defen-
dants’ prior criminal acts and other section 3553 factors. As
we noted earlier, the weight that the district court
assigns to permissible factors when exercising its discre-
tion under Rule 35(b) generally is not subject to our review.
Here, the court did not evidence a misapprehension
about its authority to consider the section 3553 factors on a
Rule 35(b) motion; nor did it suggest that it refused to
consider those factors. Indeed, the court stated that it
did consider the relevant section 3553(a) factors, and it
believed that the sentences that it imposed were neces-
sary to account for the defendants’ criminal history and
conduct. We have little reason to doubt that the district
court considered the factors that it said it did.3 Accord-
ingly, we need not determine whether the court otherwise
would have been required to consider the section 3553(a)
factors in ruling on a Rule 35(b) motion.
b.
We next consider the defendants’ contention that the
district court committed legal error when it failed to
3
Cf. United States v. Cunningham, 429 F.3d 673, 676 (7th Cir.
2005) (“[A]re we left in serious doubt whether the judge con-
nected the facts relating to the statutory factors to the sen-
tence he imposed?”).
Nos. 07-3637 & 07-3639 11
consider their argument that they had provided greater
assistance to the Government than the usual case of
substantial assistance. We have noted repeatedly our
reluctance to require sentencing judges to address ex-
plicitly every argument that a defendant makes at a
sentencing hearing. Cunningham, 429 F.3d at 679. The
Supreme Court recently expressed a similar reluctance,
although it cautioned that a district court should explain
its decision in a way that assures reviewing courts that
it considered the parties’ arguments. See Rita, 127 S. Ct. at
2468-69 (“Sometimes a judicial opinion responds to every
argument; sometimes it does not . . . . The sentencing
judge should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has
a reasoned basis for exercising his own legal decision-
making authority.”). We noted in United States v. Miranda,
505 F.3d 785 (7th Cir. 2007), that “[a] judge need not
comment on every argument the defendant raises,”
particularly if the argument is so weak that it does not
merit discussion. Id. at 792.
In this case, we have no reason to doubt that the dis-
trict court considered the defendants’ arguments. The
court here concluded that the defendants had provided
substantial assistance; however, it also concluded that
the defendants’ significant criminal histories and crim-
inal conduct required a sentence of 102 or 72 months,
respectively. This is not a refusal to consider the extent of
the assistance provided by the defendants: It is a deter-
mination that the extent of the assistance provided did
not outweigh other relevant considerations. In the district
court’s view, the sentences that it imposed were neces-
sary to account for the defendants’ substantial criminal
histories and conduct. As explained above, we do not have
12 Nos. 07-3637 & 07-3639
jurisdiction to review this discretionary sentencing de-
termination. See McGee, 508 F.3d at 444-45; McDowell, 117
F.3d at 977-78.
3.
Finally, we turn to Mr. Chapman’s objection that the
district court’s method of calculating his sentence reduction
was legal error. At Mr. Chapman’s hearing, the Govern-
ment suggested that the court impose a sentence of 84
months, and Mr. Chapman agreed to that proposed
sentence.4 Nevertheless, in its decision to sentence Mr.
Chapman to 102 months’ imprisonment, the district court
did not reference explicitly the Government’s 84-month
proposal. Instead, it applied a two-level reduction to
Mr. Chapman’s previous offense level and selected a
4
The Government calculated the proposed sentence of 84
months by applying a two-level reduction in his offense level. It
reduced his offense level from 27 to 25, and it applied his
criminal history category of IV. This yielded a guidelines
range of 84-105 months. The Government suggested that the
court should impose the lowest sentence within this range, or
84 months, even though it had originally imposed a sentence
at the high end of the original guidelines range.
Mr. Chapman arrived at the 84 months sentence using a
different method of calculation. He suggested that the court
apply a four-level reduction and choose a sentence at the
high end of the resulting guidelines range. Pairing an offense
level of 23 and a criminal history category of IV yields a sen-
tence range of 70-87 months. A sentence of 84 months is near
the high end of that range.
The district court did not address specifically either of these
methods of calculation.
Nos. 07-3637 & 07-3639 13
sentence at the higher end of the resulting guidelines range.
Relying on United States v. Thomas, 930 F.2d 526, 531 (7th
Cir. 1991), Mr. Chapman submits that “[t]he government’s
recommendation should be the starting point for the
district court’s analysis.” In his view, the district court
failed to begin its analysis with the Government’s proposed
sentence of 84 months, as required by law, and therefore it
committed legal error.
At Mr. Chapman’s hearing, the district court did not
mention explicitly that the Government had proposed a
sentence of 84 months’ imprisonment. It did, however,
begin its analysis by granting a two-level reduction in
Mr. Chapman’s offense level, which was the mechanism
by which the Government had arrived at its 84-month
proposed sentence. The court noted that the reduced
offense level, when paired with the defendant’s criminal
history category, resulted in an advisory guidelines range
of 84-105 months. It then explained that a sentence in the
upper half of the reduced range was necessary and appro-
priate for Mr. Chapman, considering his significant
criminal history and serious criminal conduct. Although
the opinion did not explicitly invoke the Government’s
proposed 84-month sentence, the record indicates that
the judge was aware of the Government’s proposed
sentence and that he proceeded from that starting point.
Accordingly, the district court’s method of calculation
was not error. Its conclusion that a 102-month sentence
was necessary to account for other important sentencing
considerations is not reviewable on appeal.
14 Nos. 07-3637 & 07-3639
Conclusion
For the reasons set forth above, we affirm the judg-
ment of the district court.
AFFIRMED
USCA-02-C-0072—7-10-08