McGee, Larry v. United States ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2078
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY McGEE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 CR 136—Barbara B. Crabb, Chief Judge.
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SUBMITTED OCTOBER 10, 2007—DECIDED NOVEMBER 21, 2007
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Before POSNER, RIPPLE and EVANS, Circuit Judges.
PER CURIAM. Following his conviction for distributing
cocaine base, see 21 U.S.C. § 841(a)(1), Larry McGee helped
authorities apprehend his supplier. Consequently, the
Government moved under Federal Rule of Criminal
Procedure 35(b) for a reduction in Mr. McGee’s 200-month
sentence. After finding that Mr. McGee had substan-
tially assisted the Government, the court granted the
motion and reduced Mr. McGee’s sentence to 160 months’
imprisonment. Mr. McGee filed a notice of appeal, but his
appointed counsel now seeks to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967), because he is
2 No. 07-2078
unable to identify a nonfrivolous basis for appeal. For
the reasons set forth in this opinion, we now grant coun-
sel’s motion to withdraw and dismiss this appeal.
I
BACKGROUND
Mr. McGee sold crack cocaine to either an informant
or undercover police officers 14 times in 2005. He was
charged with distributing cocaine base in violation of
21 U.S.C. § 841(a)(1). Mr. McGee pleaded guilty to the
charge. Because of the nature of the offense, as well as
prior felony convictions for kidnaping, rape and possession
of cocaine, the district court calculated a guidelines
range of 235 to 293 months. The court, however, sen-
tenced Mr. McGee below that range to 200 months’ im-
prisonment, five years of supervised release and a $100
special assessment. Mr. McGee filed a notice of appeal,
but the appointed lawyer representing him at that time
concluded that the appeal was frivolous and moved to
withdraw under Anders. We granted counsel’s motion and
dismissed the appeal. United States v. McGee, 216 F.Appx.
580 (7th Cir. 2007).
Meanwhile, Mr. McGee helped the Government appre-
hend his supplier, and thus the Government filed a mo-
tion, pursuant to Rule 35(b), asking the district court to
reduce his sentence as a reward for his substantial assis-
tance. The court granted that motion and gave Mr. McGee
a chance to speak on his own behalf before imposing a
new sentence. The court then reduced Mr. McGee’s orig-
inal sentence by 40 months and imposed a 160-month
term of imprisonment. The court entered a new judg-
ment reflecting the reduced term.
No. 07-2078 3
II
DISCUSSION
Mr. McGee filed a notice of appeal from the new judg-
ment. Once again, his appointed lawyer seeks to with-
draw under Anders because he cannot find a nonfrivolous
basis for appeal. We invited Mr. McGee to respond to
counsel’s motion, see Cir. R. 51(b), but he has not done
so. Counsel’s brief is facially adequate, so we confine our
review to the potential issue identified by counsel. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel ultimately concludes that Mr. McGee’s appeal
is frivolous because, in United States v. McDowell, 117 F.3d
974, 978 (7th Cir. 1997), we held that this court lacks
jurisdiction to review a revised term of imprisonment
entered in response to a motion from the Government
under Rule 35(b). See also United States v. Moran, 325
F.3d 790, 792 (6th Cir. 2003); United States v. McMillan, 106
F.3d 322, 324 n.4 (10th Cir. 1997); United States v. Doe, 93
F.3d 67, 68 (2d Cir. 1996); United States v. Pridgen, 64 F.3d
147, 149-50 (4th Cir. 1995); United States v. Arishi, 54 F.3d
596, 599 (9th Cir. 1995); United States v. Chavarria-Herrara,
15 F.3d 1033, 1035-36 (11th Cir. 1994). Counsel notes that
we have not considered whether our holding in McDowell
has been undermined by United States v. Booker, 543 U.S.
220 (2005), but he concludes that it has not. We agree.
Our jurisdiction over Rule 35(b) orders is governed by
18 U.S.C. § 3742(a). See McDowell, 117 F.3d at 978. In
McDowell we concluded that an appeal from a Rule 35(b)
order is an appeal from an “otherwise final sentence” as
that phrase is used in § 3742(a), and thus that section, and
not 28 U.S.C. § 1291, governs our jurisdiction. Id. at 977-78.
Section 3742(a) allows us to review sentences, but our
4 No. 07-2078
jurisdictional mandate is limited and does not extend to
a district court’s discretionary decisions regarding sen-
tencing. Id. at 976. This limited jurisdiction, we held in
McDowell, allows for appellate review of a Rule 35(b)
determination only if the contention on appeal is that
the decision was imposed, for example, in violation of
law, or because of an incorrect application of the sen-
tencing guidelines. See 28 U.S.C. § 3742(a); McDowell, 117
F.3d at 977. We added, however, that § 3742(a) does not
authorize an appeal from a Rule 35(b) decision if the only
contention is that the district court did not exercise its
discretion more favorably to the defendant. McDowell,
117 F.3d at 978.
As counsel observes, we have not addressed whether
Booker affects our jurisdiction to entertain Rule 35(b)
appeals. Two of our sister circuits have addressed this
question, and both have concluded that our jurisdiction
is no greater after Booker. See United States v. Haskins, 479
F.3d 955, 957 (8th Cir. 2007); United States v. McKnight, 448
F.3d 237, 238 (3d Cir. 2006). We agree. Our jurisdiction
over this case is governed by § 3742(a). McDowell, 117
F.3d at 978. Although Booker excised 18 U.S.C. § 3742(e)
(with the exception of subsection (e)(4), see United States
v. Kizeart, ___ F.3d ___, 2007 WL 2938374 (7th Cir. 2007)),
§ 3742(a) remains intact and thus our jurisdiction over
Rule 35(b) sentences is unchanged by that decision. See
Booker, 543 U.S. at 246. We did say in McDowell that a
court’s order in response to a Rule 35(b) motion creates a
“new sentence,” McDowell, 117 F.3d at 977, but defendants
are not afforded the same protections in the context of
Rule 35(b) as they are at their initial sentencing. See Fed. R.
Crim. P. 43(b)(4).
No. 07-2078 5
Accordingly, the potential issue identified by counsel is
frivolous. Counsel contemplates whether Mr. McGee
could argue that the district court should have reduced
his sentence even further in light of Mr. McGee’s effort to
help the Government and prevent others from ending up
like him, as drug addicts and dealers. However, if coun-
sel raised this argument, we would lack jurisdiction
even to consider it. McDowell, 117 F.3d at 977-78.
Conclusion
For the foregoing reasons, we grant counsel’s motion to
withdraw, and dismiss the appeal.
GRANT MOTION TO WITHDRAW
DISMISS APPEAL
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-07