Appeal from the United States District Court for the Western District of Wisconsin. No. 09-CR-112-Barbara B. Crabb, Judge.
The opinion of the court was delivered by: Cudahy, Circuit Judge.
Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
In this case, Chavis Webster appeals a district court order granting a government motion to reduce his sentence for his substantial assistance to law enforcement. See Fed. R. Crim. P. 35(b)(2). Webster contends that the district court erred by not considering the 18 U.S.C. § 3553(a) factors when it declined to grant the full reduction supposedly requested by defendant. The case presents interesting issues of the relation between United States v. Chapman, 532 F.3d 625 (7th Cir. 2008), and United States v. Shelby, 584 F.3d 743 (7th Cir. 2009). We affirm.
On February 25, 2009, defendant Webster and his associate Cherish Jones sold heroin to an individual acting as an informant. The government submitted this evidence to a federal grand jury, and it returned an indictment against Webster, alleging that he distributed heroin in violation of 21 U.S.C. § 841(a)(1). In November 2009, Webster pleaded guilty and was subsequently sentenced to 216 months in prison. In light of his guilty*fn1 plea and agreement to provide substantial assistance, the government agreed to request a reduced sentence if Webster provided such assistance. Webster in fact did and in November 2010 the government filed a Rule 35(b) motion requesting a sentence reduction based on his substantial assistance in the investigation and prosecution of others. The district court then held a hearing on the motion and reduced Webster's sentence from 216 months to 168 months in light of his substantial assistance. But Webster seeks a further reduction and appeals.
An appeal from a Rule 35(b) order is an appeal from an "otherwise final sentence," over which we have jurisdiction only in limited circumstances. United States v. Chapman, 532 F.3d 625, 628 (7th Cir. 2008) (citing United States v. McGee, 508 F.3d 442, 444 (7th Cir. 2007)); see also 18U.S.C. § 3742(a). It is not our role in Rule 35(b) appeals to review a district court's exercise of its discretion. See McGee, 508 F.3d at 444-45 ("[O]ur jurisdictional man-date . . . does not extend to a district court's discretionary decisions regarding sentencing."). Our task, instead, is to determine whether a reduction in sentence was imposed in violation of the law. Id. As we understand it, the defendant's argument on appeal is that the district court erred as a matter of law when it declined to grant the 120-month reduced sentence requested by both parties and without considering the § 3553(a) factors. Because we have recognized that assertions of methodological error allege a mistake of law, we have jurisdiction to hear defendant's appeal. Chapman, 532 F.3d at 630 ("We certainly have jurisdiction to consider whether a district court is required to reevaluate the section 3553 sentencing factors . . . .").
First, it is unclear whether the premise of the defendant's argument-that there was a request for a reduced sentence of 120 months-is, in fact, true. From our review of the record, we agree with the govern-ment that no party had requested a specific sentence reduction. The government made no statements at the motion hearing, and instead rested on the information in its supporting affidavit, which was also silent on the amount of reduction sought. See Appellee's Br. 8; Motion Hr'g Tr. 3.
The record shows that defense counsel similarly never requested a reduced sentence of 120 months. The closest defense counsel came to making a request was when he asked the court for "as large a reduction as possible." Hr'g Tr. 3. The defendant contends that the request for "as large a reduction as possible" was in reference to an earlier request for a 120-month sentence made at the initial sentence hearing. Appellant Reply Br. 3. Taken most charitably, these statements are insufficient to constitute a request for a specific sentence reduction. Not once was the 120-month figure uttered, leaving us perplexed as to how the district court could have committed an error as a matter of law by deviating from a non-existent number.
Defense counsel at oral argument intimated that the Rule 35(b) hearing was so brief that he was unable to request a specific reduction figure. The transcript of the proceeding demonstrates otherwise. After indicating that it would grant the motion, but before making its final ruling, the district court permitted defense counsel to make remarks in support of his client. Hr'g Tr. 3. After referencing his prior remarks at the sentencing hearing, defense counsel emphasized the extent of his client's cooperation and the hardship his imprisonment was causing him and his family. Id. At no point was he interrupted and he in fact ended his remarks with "that is all I have, Your Honor." Id. at 4. Nothing about the hearing indicates that defense counsel was unable to make explicit his client's desire for a reduced sentence of 120 months.
We find, therefore, that the defendant did not request a reduced sentence of 120 months. Unable to accept the defendant's premise, we find it difficult to understand how the court could have committed error by imposing a sentence higher than one that was never requested by a party. As a result, the remainder of his argument on appeal is without merit.
Even if we assume that the defendant explicitly requested a reduced sentence of 120 months, defendant's argument on appeal nevertheless fails because, as we have previously explained, Rule 35(b) hearings do not provide an opportunity for a full resentencing. United States v. Shelby, 584 F.3d 743, 745 (7th Cir. 2009).
Rule 35 provides that "[a] court may reduce a sentence if the defendant . . . provided substantial assistance in investigating or prosecuting another person," and, in the case that the assistance occurs more than a year after sentencing, that assistance satisfies one of three statutorily defined criteria. See Fed. R. Crim. P. 35(a) & (b). As the rule's plain language indicates, in ruling on a Rule 35(b) motion, the role of the court is limited to assessing the extent of the defendant's assistance to the government and whether, and to what degree, that assistance merits a reduction in his or her sentence. Rule 35 serves the limited purpose of facilitating law enforcement by enabling the government to elicit assistance from an offender by asking the court to reduce the offender's sentence in recognition of his assistance. Shelby, 584 F.3d at 745. As we stated in Shelby, the filing of a Rule 35(b) motion by the government does not then permit a defendant to argue for a full resentencing on the basis of something other than the assistance he provided to the government. Id. To allow otherwise, we said, would ...