United States v. David Wayne Wilson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
No. 08-10030 ELEVENTH CIRCUIT
JANUARY 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 04-80077-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID WAYNE WILSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 30, 2009)
Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Defendant David Wayne Wilson (“Defendant”) appeals the District Court’s
grant of the government’s motion to reduce his sentence for providing substantial
assistance to the government pursuant to Fed.R.Crim.P. 35(b). Defendant’s
sentence was lowered from 53 months followed by three years of supervised
release to time served followed by three years supervised release. Defendant
wanted a greater reduction. We have no jurisdiction to review the extent of a Rule
35(b) sentence reduction; we dismiss the appeal.
Defendant pleaded guilty to possession of a firearm by a convicted felon
and possession of stolen firearms. After Defendant was sentenced, the
government filed a Fed.R.Crim.P. 35(b) motion and informed the court that
Defendant had recently testified on behalf of the government in a trial. Defendant
had come forward to provide information in that trial in spite of his testimony’s
placing his family in danger. Therefore, the government recommended
Defendant’s sentence be reduced to time served and two years supervised release.
Defendant’s counsel asked that it be reduced not to include any period of
supervised release so that Defendant could move out of town. The District Court
reduced Defendant’s sentence to time served and three years supervised release.
Defendant appeals this sentence.
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Appeals from a district court’s decision to deny or grant a Rule 35(b)
motion are generally not within the subject matter jurisdiction of this Court.
United States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996). This Court reviews
subject matter jurisdiction de novo. United States v. Winingear, 422 F.3d 1241,
1245 (11th Cir. 1996).
Appeals from a district court’s ruling on a Rule 35(b) motion are governed
by 18 U.S.C. § 3742. Manella, 86 F.3d at 203. This section allows a defendant to
appeal a final sentence only if it was imposed in violation of the law, was the
result of an incorrect application of the Sentencing Guidelines, exceeded the
guideline range, or did not have an applicable guideline but was plainly
unreasonable. Id. Therefore, a defendant may not appeal the result of a Rule
35(b) motion simply because he would like to reduce his sentence further. See
Manella, 86 F.3d at 203.
Defendant’s counsel acknowledges Manella but claims that under United
States v. Booker, 543 U.S. 220 (2005) and Gall v. United States, 128 S.Ct 586
(2007), this Court must review all sentences for reasonableness. This contention
is not correct. Booker concluded that the section of the Sentencing Reform Act
that made the Sentencing Guidelines mandatory was unconstitutional. Booker,
543 U.S. at 259-60. Gall clarified that the reasonableness standard in Booker
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includes the abuse-of-discretion standard and focuses on the consideration of the
factors in 18 U.S.C. § 3553 when imposing a sentence outside the guidelines
range. Gall, 128 S.Ct at 594. Rule 35(b) motions and 18 U.S.C. § 3742 were not
discussed in these opinions. Because Manella has never been overturned by the
Supreme Court or an en banc decision from this Court, it is still good law. United
States v. King, 509 F.3d 1338, 1343 (11th Cir. 2007). See also United States v.
McGee, 508 F.3d 442 (7th Cir. 2007); United States v. Haskins, 479 F.3d 955 (8th
Cir. 2007); United States v. McKnight, 448 F.3d 237 (3rd Cir. 2006). This Court
does not have jurisdiction over Defendant’s appeal.
APPEAL DISMISSED.
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