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APPELLATE REVIEW OF SENTENCES
The Sentencing Reform Act of 1984 requires that all challenges to sentences be
made on direct appeal, virtually eliminating the sentencing court as a direct avenue
for the review of sentences. 2687 Generally, the sentencing court may correct a
sentence only on remand after a successful appeal,2688 The defendant may waive his
or her right to appeal in a plea agreement, provided the waiver is knowing and
voluntary.2689
Either the government2690 or the defendant2 691 may appeal a sentence (1) that is
challenges in capital murder prosecution); U.S. v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997) (per se
reversible error to deny or impair right to peremptory challenges), cert. denied, 118 S. Ct. 2341 (1998);
U.S. v. Annigoni, 96 F.3d 1132, 1143 (9th Cir. 1996) (same). Peremptory challenges are discussed in
greater detail in Peremptory Challenges in RIGHT TO JURY TRIAL in Part III.
2686. See U.S. v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997) (per se reversible error for
failure to determine if defendant voluntarily, knowingly, and intelligently waived jury trial); U.S. v.
Medina, 90 F.3d 459,464 (11th Cir. 1996) (per se reversible rule when defendant is denied right to jury
trial by directed verdict either in whole or in part).
2687. 18 U.S.C. § 3742 (1994). The Senate Judiciary Committee intended that a sentence be subject to
review primarily through the appellate process. See S. REP. No. 225, supra note I, reprinted in 1984
U.S.C.C.A.N. at 3337 (discussing restrictions on appellate review of sentences to avoid unnecessary
review). Nonetheless, a sentence may be reviewed and modified by the sentencing court in a narrow set of
circumstances. See 18 U.S.C. § 3582(c)(I)(A) (1994) (court, on motion of Director of Bureau of Prisons,
may reduce sentence for extraordinary and compelling reasons including when the convict is seventy
years or older, has served over thirty years in prison for a violent felony, and is no longer a danger to the
community); FED. R. CRIM. P. 35(b) ("[Clourt, on motion of the Government made within one year after
the imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent, substantial
assistance in the investigation or prosecution of another person who has committed an offense."); FED. R.
CRIM. P. 35(c) (sentencing court, "acting within 7 days after the imposition of sentence, may correct a
sentence that was imposed as a result of arithmetical, technical, or other clear error"); see also id. § 3562
(court may modify or revoke probation pursuant to 18 U.S.C. §§ 3564 or 3565); id. § 3583(e) (court may
terminate, extend, revoke, or modify term of supervised release if defendant's conduct warrants and
justice will be served). In addition, Rule 38 of the Federal Rules of Criminal Procedure allows a
sentencing court to stay a sentence if an appeal is taken from the sentence or the conviction. FED. R.
CRIM. P. 38 (court must allow stay for death sentence and may allow stay for sentences of imprisonment,
fine, probation, criminal forfeiture, notice to victims, and restitution).
2688. FED. R. CRIM. P. 35(a). Although the sentencing court has substantial discretion upon remand, it
may not correct a sentence in a vindictive manner. North Carolina v. Pearce, 395 U.S. 711, 725 (1969)
(threefold increase of sentence after retrial and conviction struck down as vindictive and violative of due
process).
2689. U.S. v. Chen, 127 F.3d 286, 289 (2d Cir. 1997) (defendant made a knowing and voluntary waiver
of right to appeal sentence even though magistrate judge erroneously informed defendant that he had the
right to appeal an "illegal sentence" even though waiver included right to appeal "any sentence"); U.S.
v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (defendant made a knowing and voluntary waiver
of right to appeal sentence when plea arrived at after extensive negotiations); U.S. v. Capaldi, 134 F.3d
307, 308 (5th Cir.) (defendant's knowing and voluntary survives on remand), cert. denied, 118 S. Ct.
2073 (1998); U.S. v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996) (defendant made a knowing and voluntary
waiver of right to appeal sentence when plea agreement detailed sentence calculations at length); U.S. v.
Feichtinger, 105 F.3d 1188, 1190 (7th Cir.) (defendant made a knowing and voluntary waiver of right to
appeal sentence even though prosecution may not have fulfilled all of its requirements under plea bargain
or if judge mistakenly applied Guidelines), cert. denied, 117 S. Ct. 2467 (1997); U.S. v. Brown, 148 F.3d
1003, 1012 (8th Cir. 1998) (defendant made a knowing and voluntary waiver of right to appeal sentence
by agreeing to plea during colloquy with judge); U.S. v. Blitz, 151. F.3d 1002, 1005-06 (9th Cir. 1998)
(defendant made a knowing and voluntary waiver of right to appeal sentence by agreeing to plea in
writing); U.S. v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998) (defendant's knowing and voluntary
waiver enforceable even though defendant claims plea was not supported by adequate consideration);
U.S. v. Benitez-Zapata, 131 F.3d 1444, 1446 (lIth Cir. 1997) (defendant made a knowing and voluntary
waiver of right to appeal sentence even though judge erroneously informed defendant at the end of
sentencing, not plea, hearing that he had the right to appeal sentence within ten days). For a complete
discussion of waiver in plea agreements, see Consequences of a Plea in GUILTY PLEAS in Part II.
2690. 18 U.S.C. § 3742(b), (c)(2) (1994).
2691. [d. § 3742(a), (c)(1).
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imposed in violation of law,2692 (2) that is a product of an incorrect application of the
Sentencing Guidelines ("Guidelines"),2693 or (3) that is plainly unreasonable for an
offense for which no sentencing guideline has been issued. 2694 In addition, the
defendant may appeal a sentence that includes a greater fine or term of imprisonment,
probation, or supervised release than the maximum specified in the applicable
2692. Id. § 3742(a)(I), (b)(l); U.S. v. Conway, 81 F.3d 15, 16 (1st Cir. 1996) (grounds for appeal when
court, in violation of Fifth Amendment, used immunity proffer in denying government's downward
departure motion); U.S. v. Campo, 140 F.3d 415, 418 (2d Cir. 1998) (court's refusal to consider
government's downward departure motion on the merits was violation of law that required reversal); U.S.
v. Graham, 72 F.3d 352, 359 n.8 (3d Cir. 1995) (appellate court could review defendant's sentence
because he alleged denial of constitutional right to notice of allegations raised at sentencing hearing);
U.S. v. Ivester, 75 F.3d 182, 184 (4th Cir. 1996) (sentence appealable when defendant alleged that court
misapplied and misinterpreted statute allowing departure if defendant provides all information about
offense); U.S. v. Lively, 20 F.3d 193, 197 (6th Cir. 1994) (sentence appealable because defendant alleged
that "court failed to consider certain directives contained in the [S]entencing [R]eform [A]ct of 1984");
U.S. v. Carter, 122 F.3d 469, 471 n.1 (7th Cir. 1997) (circuit court has jurisdiction to hear sentencing
appeal when defendant alleges that the district court "misconstrued the legal standards governing its
authority to depart" from the Guidelines); U.S. v. Albers, 961 F.2d 710, 712 (8th Cir. 1992) (allegation of
due process violation in sentencing permits appellate review); U.S. v. Parks, 89 F.3d 570, 572 n.2 (9th
Cir. 1996) (same); U.S. v. Townsend, 33 F.3d 1230 (10th Cir. 1994) (court had jurisdiction to hear appeal
based on claim that district court violated FED. R. CRIM. P. 35(c) by correcting defendant's sentence for
clerical or technical error outside the proscribed seven day period); U.S. Manella, 86 F.3d 201, 203 (11th
Cir. 1996) (allegation of misapplication of FED. R. CRIM. P. 35(b) enabled appellate review); see U.S. v.
Sammoury, 74 F.3d 1341, 1343 (D.C. Cir. 1996) ("the term 'law' in 'imposed in violation of law' must
refer to more than just the Guidelines" or the provisions allowing for review of misapplication of the
Guidelines would be superfluous. See 18 U.S.C. § 3742(a)(2), (e)(2) (1994).).
2693. Id. § 3742(a)(2), (b)(2); U.S. v. Matiz, 14 F.3d 79, 80 n.1 (1st Cir. 1994) (district court decision
reviewable when defendant alleged court imposed enhancement for obstruction of justice pursuant to
Guidelines); U.S. v. Acosta, 963 F.2d 551, 557 (2d Cir. 1992) (district court decision reviewable when
defendant alleged miscalculation of offense level when it included weight of creme liqueur in addition to
cocaine); U.S. v. Sain, 141 F.3d 463, 476 (3d Cir.) (district court decision reviewable when defendant
alleged court imposed sentence enhancement for use of special skill (engineering) in the commission of a
crime), cert. denied. 119 S. Ct. 248 (1998); U.S. v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996) (district court
decision reviewable when defendant alleged court disregarded one of defendant's prior convictions and
sentencing as non-career offender); U.S. v. Hill, 42 F.3d 914, 916 (5th Cir. 1995) (district court decision
reviewable when defendant alleged court imposed improper consecutive sentence and used incorrect
amount of loss by victims); U.S. v. Snyder, 913 F.2d 300, 302-03 (6th Cir. 1990) (district court decision
reviewable when defendant alleged court miscomputed base offense level, enhancement, and deductions
relating to gun and drug possession); U.S. v. Wallace, 114 F.3d 652, 656 (7th Cir. 1997) (district court
decision reviewable when defendant alleged failure to consider reduction for assistance independent from
acceptance of responsibility because based on erroneous application of Guidelines); U.S. v. McCarthy, 97
F.3d 1562, 1573-74 (8th Cir. 1996) (district court decision reviewable when defendant alleged miscalculation of weight of narcotics attributable to him in determining whether to depart downward), cert. denied.
117 S. Ct. lOll (1997); U.S. v. George, 56 F.3d 1078, 1086 (9th Cir. 1995) (district court decision
reviewable when defendant alleged court did not have authority to depart upward in determining
defendant's criminal history category), cert. denied, 118 S. Ct. 1100 (1998); U.S. v. Hargus, 128 F.3d
1358, 1364 (10th Cir. 1997) (district court decision reviewable when defendant alleged court miscalculated base level and amount of loss under the Guidelines), cert. denied, 118 S. Ct. 1526 (1998); U.S. v.
Cruz, 106 F.3d 1553, 1556 (11th Cir. 1997) (district court decision reviewable when defendant alleged
court misapplied "safety valve" provision of Guidelines); U.S. v. Olibrices, 979 F.2d 1557, 1559 (D.C.
Cir. 1992) (district court decision reviewable when defendant alleged court incorrectly applied minimall
minor participant reduction guideline). For a discussion of the application of the Guidelines, see
SENTENCING GUIDELINES in Part IV.
2694. 18 U.S.C. § 3742(a)(4), (b)(4) (1994). Compare U.S. v. Sweeney, 90 F.3d 55, 58 (2d Cir. 1996)
(sentence of 18 months for violation of supervised release, for which no Guidelines applicable, plainly
unreasonable because excessive reliance on non-binding Sentencing Commission policy statements) with
U.S. v. Mathena, 23 F.3d 87, 89 (5th Cir. 1994) (sentence of 36 months upon revocation of supervised
release, for which no Guidelines applicable, not plainly unreasonable) and U.S. v. Hale, 107 F.3d 526,
529 (7th Cir. 1997) (sentence of 30 months for revocation of supervised release, for which no Guidelines
applicable, not plainly unreasonable).
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guideline. 2695 The government, with the personal approval of the Attorney General,
2695. 18 U.S.C. § 3742(a)(3) (1994). A defendant may also appeal a condition of probation or
supervised release limiting employment or requiring intermittent confinement that is more stringent than
the maximum established in the Guidelines range. [d. If there is a plea agreement, the defendant may
appeal a sentence only if the sentence imposed exceeds the sentence specified in the agreement. [d. §
3742(c)(l); see U.S. v. Velez Carrero, 77 F.3d 11, 12 (1st Cir. 1996) (government's failure to recommend
no upward sentence adjustment in accordance with plea agreement grounds for appeal); U.S. v. Gottesman, 122 F.3d 150, 152 (2d Cir. 1997) (court-ordered restitution, in alleged violation of plea agreement
which only required payment of back taxes, grounds for appeal); U.S. v. Moscahlaidis, 868 F.2d 1357,
1361 (3d Cir. 1989) (government's violation of plea agreement not to take position on whether custodial
sentence should be imposed grounds for appeal); U.S. v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996)
(government's failure to debrief defendant regarding offense as promised in plea agreement grounds for
appeal); U.S. v. Goldfaden, 959 F.2d 1324, 1327 (5th Cir. 1992) (government's advocating of use of
various guideline sanctions to court in violation of plea agreement to make no recommendation as to
sentence grounds for appeal); U.S. v. Mitchell, 136 F.3d 1192, 1194 (8th Cir. 1998) (alleged violation of
spirit of plea agreement by prosecutor's introduction of victim impact statements when agreement
required prosecutor to make motion for downward departure grounds for appeal); U.S. v. Myers, 32 F.3d
411,413 (9th Cir. 1994) (government's failure to affirmatively recommend sentence at low end of range
as promised in plea agreement grounds for appeal); U.S. v. Brye, 146 F.3d 1207, 1212 (10th Cir. 1998)
(government's breach of plea agreement "not to oppose" defendant's motion for downward departure by
making legal argument using facts of case grounds for appeal); U.S. v. Johnson, 132·F.3d 628,630 (11th Cir.)
(government advocating attribution of larger amount of marijuana than agreed in plea bargain grounds for
appeal), cert. denied, 119 S. Ct. 264 (1998); U.S. v. Wolff, 127 F.3d 84, 86 (D.C. Cir. 1997) (government's
failure to argue for sentence reduction for acceptance of responsibility in accordance with plea agreement
grounds for appeal), cert. denied 118 S. Ct. 2325 (1998).
An appellate court does not have jurisdiction to review the sentencing court's refusal to depart from the
applicable Guidelines range unless the sentencing court erred in concluding that it did not have the
discretionary authority to depart. See U.S. v. Graham, 146 F.3d 6, 12 (1st Cir. 1998) (no jurisdiction to
review refusal to depart where sentencing court understood discretionary authority to depart); U.S. v.
Felipe, 148 F.3d 101, 113 (2d Cir.) (same), cert. denied, 119 S. Ct. 246 (1998); U.S. v. Marin-Castaneda,
134 F.3d 551, 554 (3d Cir.) (same), cert. denied, 118 S. Ct. 1855 (1998); U.S. v. Wilkinson, 137 F.3d
214,230 (4th Cir.) (same), cert. denied, 119 S. Ct. 172 (1998); U.S. v. Brace, 145 F.3d 247, 263 (5th Cir.)
(same), cert. denied, 119 S. Ct. 246 (1998); U.S. v. Clements, 144 F.3d 981, 984 (6th Cir. 1998) (same);
U.S. v. Newman, 148 F.3d 871, 878 (7th Cir. 1998) (same); U.S. v. Puckett, 147 F.3d 765, 772 (8th Cir.
1998) (same); U.S. v. Whitecotton, 142 F.3d 1194, 1200 (9th Cir. 1998) (same); U.S. v. Brye, 146 F.3d
1207, 1213 (10th Cir. 1998) (same); U.S. v. Sanchez-Valencia, 148 F.3d 1273, 1273 (lIth Cir. 1998)
(same); U.S. v. Soto, 132 F.3d 56, 60 (D.C. Cir. 1997) (same).
If it cannot be determined whether the sentencing court exercised its discretion or wrongly believed it
could not depart, the case will be remanded. U.S. v. Hernandez, 995 F.2d 307, 313-14 (1st Cir. 1993)
(remand required if appellate court cannot determine whether the district court exercised discretion or
misunderstood its authority); U.S. v. Ritchey, 949 F.2d 61, 63 (2d Cir. 1991) (same); U.S. v. Mummert, 34 F.3d
201, 205 (3d Cir. 1994) (same); U.S. v. Deigert, 916 F.2d 916, 919 (4th Cir. 1990) (same); U.S. v. Scott, 74
F.3d 107, 112 (6th Cir. 1996) (same); U.S. v. Ramos-Oseguera, 120 F.3d 1028, 1040-41 (9th Cir. 1997) (same),
cert. denied. 118 S. Ct. 1094 (1998); U.S. v. Kummer, 89 F.3d 1536, 1547 (11th Cir. 1996) (same); U.S. v.
Lopez, 938 F.2d 1293, 1298 (D.C. Cir. 1991) (same). Nonetheless, the Tenth Circuit held that it would
"no longer [be] willing to assume that a judge's ambiguous language means that the judge
erroneously concluded that he or she lacked authority to downward depart.... Accordingly,
unless the judge's language unambiguously states that the judge does not believe he has
authority to downward depart, we will not review his decision. Absent such a misunderstanding
on the sentencing judge's part, illegality, or an incorrect application of the Guidelines, we will
not review the denial of a downward departure."
U.S. v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994); accord U.S. v. Cureton, 89 F.3d 469, 474 (7th
Cir. 1996) (where no indication in record that sentencing court believed it had no authority, appellate
court has no jurisdiction to review discretionary refusal to depart).
Circuit courts have also held that the extent of a downward departure may not be appealed by the defendant.
See U.S. v. Webster, 54 F.3d 1,4 (1st Cir. 1995); U.S. v. Tocco, 135 F.3d 116, 131 (2d Cir.), cert. denied, 118
S. Ct. 1581 (1998); U.S. v. Khalil, 132 F.3d 897, 898 (3d Cir. 1998); U.S. v. Hill, 70 F.3d 321,324 (4th Cir.
1995); U.S. v. Alvarez, 51 F.3d 36, 39 (5th Cir. 1995); U.S. v. Gregory, 932 F.2d 1167, 1168 (6th Cir. 1991);
U.S. v. Senn, 102 F.3d 327, 331 (7th Cir. 1996); U.S. v. Puckett, 147 F.3d 765, 772 (8th Cir. 1998); U.S. v.
Eureka Laboratories, Inc., 103 F.3d 908, 911 (9th Cir. 1996); U.S. v. Bromberg, 933 F.2d 895, 896 (10th Cir.
1991); U.S. v. Wright, 895 F.2d 718, 721-22 (11th Cir. 1990); U.S. v. Hazel, 928 F.2d 420, 424 (D.C. Cir. 1991).
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the Solicitor General, or a Deputy Solicitor General,2696 may appeal a sentence that is
more lenient than what the Guidelines prescribe. 2697
In Koon v. United States,2698 the Supreme Court ruled that departures from the
Guidelines are to be reviewed for abuse of the sentencing court's discretion. 2699
2696. 18 U.S.C. § 3742(b) (1994). Personal approval of the Attorney General, Solicitor General, or a
Deputy Solicitor General is required to ensure that the government does not routinely file appeals for
every sentence below the appropriate Guidelines range. See S. REp. No. 225, supra note 1, at 154,
reprinted in 1984 U.S.C.C.A.N. at 3337; see also U.S. v. Gonzalez, 970 F.2d 1095, llOI-02 (2d Cir.
1992) (§ 3742(b) is not jurisdictional; "Congress enacted the personal approval requirement to assure that
Government appeals are not routinely brought whenever a sentence is imposed below the indicated
guideline range"); U.S. v. Gurgiolo, 894 F.2d 56, 57 n.l (3d Cir. 1990) (failure to document personal
approval is akin to miscaptioning pleadings and does not deprive court of jurisdiction); U.S. v. Smith, 910
F.2d 326, 327 (6th Cir. 1990) (per curiam) (§ 3742(b) is not jurisdictional); U.S. v. Hendrickson, 22 F.3d
170,171 n.l (7th Cir. 1994) (§ 3742(b) is not jurisdictional); cf Smith, 910 F.2d at 328 (proof of approval
by Attorney General or Solicitor General must be dated no later than day notice of appeal filed and
provided no later than filing of appellate brief).
2697. 18 U.S.C. § 3742(b)(3) (1994); see U.S. v. Wogan, 938 F.2d 1446, 1448 (1st Cir. 1991)
(government appeal proper when trial court erroneously departed downward to equalize sentence with
co-defendant); U.S. v. Sh~upe, 929 F.2d 116, ll9-20 (3d Cir. 1991) (government appeal proper when trial
court erroneously departed downward on basis of defendant's youth and immaturity at time of offense);
U.S. v. Goossens, 84 F.3d 697, 700-01 (4th Cir. 1996) (government appeal proper when trial court
erroneously departed downward in consideration of unestablished diminished mental incapacity); U.S. v.
Besler, 86 F.3d 745, 748 (7th Cir. 1996) (government appeal proper when trial court erroneously departed
downward for defendant's voluntary disclosure absent necessary finding of likelihood of discovery absent
disclosure); U.S. v. Prestemon, 929 F.2d 1275, 1277 (8th Cir. 1991) (government appeal proper when trial
court erroneously departed downward on basis of defendant's race and family situation). The Senate
Judiciary Committee explained that government appeals of unreasonably lenient sentences are necessary
to reduce unwarranted sentencing disparity. S. REp. No. 225, supra note 1, at 151, reprinted in 1984
U.S.C.C.A.N. at 3334. The Committee asserted that such appeals would not violate the Double Jeopardy
Clause, relying on a Supreme Court decision that upheld the imposition of increased sentences upon
appeal as provided in the Organized Crime Control Act of 1970, 18 U.S.C. § 3576 (1982). S. REP. No.
225, supra note 1, at 151-52, reprinted in 1984 U.S.C.C.A.N. at 3334-35 (citing U.S. v. DiFrancesco, 449
U.S. ll7, 136-37 (1980». The government's ability to appeal is discussed generally in APPEALS in this
Part and in DOUBLE JEOPARDY in Part II.
2698. 518 U.S. 81 (1996).
2699. [d. at 98 ("a district court's decision to depart from the Guidelines ... will in most cases be due
substantial deference, for it embodies the traditional exercise of discretion by a sentencing court"). The
abuse of discretion standard adopted by the Court, however, does not require deference to a sentencing
court in questions of law, as a mistake of law is per se an abuse of discretion. [d. at 100; cf Cooter & Gell
v. Harmarx Corp., 496 U.S. 384 (1990) (abuse of discretion standard requires deference to trial court's
analysis of facts and no deference to trial court's mistake of law). Thus, the unitary "abuse of discretion"
standard incorporates both the due deference to the trial court in questions of fact and no deference in
questions of law. See U.S. v. Twitty, 104 F.3d 1, 2-3 (1st Cir. 1997) (court did not abuse discretion in
upward departure based on large number of guns used and endangerment of public safety because not
adequately considered in guideline); U.S. v. Malpeso, ll5 F.3d 155, 170 (2d Cir. 1997) (court did not
abuse discretion in upward departure based on defendant's injuring innocent bystander because not
adequately considered in guideline), cert. denied ll8 S. Ct. 2366 (1998); U.S. v. Baird, 109 F.3d 856,871
(3d Cir.) (court did not abuse discretion in upward departure based on defendant's disruption of
government functions to an exceptional degree because not adequately considered in guideline), cert.
denied, ll8 S. Ct. 243 (1997); U.S. v. Barber, ll9 F.3d 276, 283 (4th Cir.) (court did not abuse discretion
in upward departure based on defendant's robbery of victim in course of second-degree murder because
not adequately considered in guideline), cert. denied, ll8 S. Ct. 457 (1997); U.S. v. Route, 104 F.3d 59,
64 (5th Cir.) (court did not abuse discretion in upward departure based on defendant's criminal history
because guideline did not adequately reflect seriousness of past conduct nor likelihood for recidivism),
cert. denied ll7 S. Ct. 2491 (1997); U.S. v. Wright, ll9 F.3d 390, 393 (6th Cir. 1997) (court did not abuse
discretion in four-level upward departure based on defendant's torturing victim because not adequately
considered in guideline); U.S. v. Porter, 145 F.3d 897, 905 (7th Cir. 1998) (court did not abuse discretion
in upward departure based on defendant's involvement of minor in commission of mail fraud because not
adequately considered in guideline); U.S. v. Johnson, 144 F.3d ll49, ll50 (8th Cir. 1998) (court did not
abuse discretion in upward departure based on cruel and unusual way in which defendant sexually
assaulted victim because not adequately considered in guideline); U.S. v. Cuddy, 147 F.3d 1111, 1116 (9th
Cir. 1998) (court did not abuse discretion in upward departure based on defendant's threats to family
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Appellate courts must give deference to a sentencing court's discretionary departure,
the Court reasoned, because the sentencing court has greater experience in criminal
sentencing and is closer in proximity to the facts on which the departure is based. 27°O
An appellate court must remand 2701 the case with any instructions it deems
member of extortion victim because not adequately considered in guideline); U.S. v. Smith, 133 F.3d 737,
751 (10th Cir.) (court did not abuse discretion in upward departure based on defendant's unusually
predatory fraudulent actions against vulnerable victims because not adequately considered in guideline),
cert. denied, 118 S. Ct. 2306 (1998); U.S. v. Garrison, 133 F.3d 831, 850 (lIth Cir. 1998) (court did not
abuse discretion in upward departure based on defendant's substantial personal profits in Medicare fraud
scheme because not adequately considered in guideline).
The sentencing court's consideration of a factor adequately considered in the Guidelines or precluded
from consideration by the Sentencing Commission, however, is a per se abuse of discretion and is
afforded no deference. Koon, 518 U.S. at 100; see U.S. v. Jackson, 30 F.3d 199,202-04 (1st Cir. 1994)
(court abused discretion in downward departure based on defendant's age in relation to length of sentence
contrary to Guidelines); U.S. v. Tejeda, 146 F.3d 84, 98 (2d Cir. 1998) (court abused discretion in
downward departure based on small quantity of controlled substance because adequately considered by
Guidelines); U.S. v. Woods, 24 F.3d 514, 517-18 (3d Cir. 1994) (court abused discretion in upward
departure based on defendant's lies to investigators because adequately considered in Guidelines); U.S. v.
Perkins, 108 F.3d 512,515-16 (4th Cir. 1997) (court abused discretion in downward departure based on
racial disparity in sentencing among co-defendants contrary to Guidelines); U.S. v. Arce, 118 F.3d 335,
344 (5th Cir. 1997) (court abused discretion in basing part of upward departure on manufacturing of
weapons because adequately considered in Guidelines), cert. denied, 118 S. Ct. 705 (1998); U.S. v.
Crouse, 145 F.3d 786, 790 (6th Cir. 1998) (court abused discretion in downward departure based on
defendant's loss of business reputation because adequately considered in Guidelines); U.S v. Mayotte, 76
F.3d 887, 889 (8th Cir. 1996) (court abused discretion in downward departure based on defendant's
diminished capacity in violent crime of bank robbery because guideline only applies to non-violent
offenses); U.S. v. Rios-Favela, 118 F.3d 653, 656 (9th Cir. 1997) (court abused discretion in downward
departure based on alien defendant's previous narcotics offense because adequately considered by
Guidelines), cert. denied, 118 S. Ct. 730 (1998); U.S. v. Meacham, 115 F.3d 1488, 1497 (10th Cir. 1997)
(court abused discretion in downward departure based on lack of physical injury in abusive sexual contact
case because adequately considered in Guidelines); U.S. v. Bristow, 110 F.3d 754, 758 (lIth Cir. 1997)
(court abused discretion in downward departure based on defendant's economic hardships contrary to
Guidelines), cert. denied, 118 S. Ct. 731 (1998); U.S. v. Washington, 106 F.3d 983, 1017-18 (D.C. Cir.)
(court abused discretion in downward departure based on fact that defendant's participation in drug
activity was no more than four hours because contrary to Guidelines), cert. denied, 118 S. Ct. 446 (1997).
2700. Koon, 518 U.S. at 98. The sentencing court's assessment of facts as sufficiently unusual, in
comparison with other Guidelines cases, so as to warrant departure must be given due deference by the
appellate court. [d.
2701. 18 U.S.C. § 3742(f) (1994). But see U.S. v. Achiekwelu, 112 F.3d 747, 758 (4th Cir.) (remand
not required because sentence was independently supported on either of two possible grounds, one of
which was invalid), cert. denied, 118 S. Ct. 250 (1997); U.S. v. Lewis, 92 F.3d 1371, 1379-80 (5th Cir.
1996) (remand not required where sentences recieved by defendants under similar state law did not
exceed maximum that could have been imposed under federal law), vacated on other grounds, 118 S. Ct.
1135 (1998).; U.S. v. McKinney, 98 F.3d 974, 981-82 (7th Cir.) (remand not required when sentencing
court did not make "explicit" findings as to reason for upward departure), cert. denied, 117 S. Ct. 1119
(1997); U.S. v. Yates, 22 F.3d 981, 988 (10th Cir. 1994) (remand not automatically required to rectify
incorrect Guidelines application when court relied on invalid factor); U.S. v. Brazel, 102 F.3d 1120, 1161
(lIth Cir.) (remand not required to correct sentencing court's improper acceptance of speculative drug
quantity when reliable evidence still established quantity of drugs necessary for imposed sentence), cert.
denied, 118 S. Ct. 79 (1997).
In determining whether remand is necessary, the appellate court is directed to give due regard to the
opportunity of the district court to judge the credibility of witnesses and to accept factual findings of the
district court unless they are clearly erroneous. 18 U.S.C. § 3742(e) (1994); see U.S. v. Nunez, 146 F.3d
36,40 (1st Cir; 1998) (district court's factual decisions reviewed under clearly erroneous standard); U.S.
v. Ventura, 146 F.3d 91, 96 (2d Cir.) (same), cert. denied, 119 S. Ct. 172 (1998); U.S. v. Dent, 149 F.3d
180, 183 (3d Cir. 1998) (same); U.S. v. Sampson, 140 F.3d 585, 591 (4th Cir. 1998) (same); U.S. v.
Milton, 147 F.3d 414,417 (5th Cir. 1998) (same); U.S. v. Kincaide, 145 F.3d 771, 784 (6th Cir. 1998)
(same); U.S. v. Griffin, 148 F.3d 850, 855 (7th Cir. 1998) (same); U.S. v. Patterson, 148 F.3d 1013, 1016
(8th Cir. 1998) (same); U.S. v. Lopez-Sandoval, 146 F.3d 712, 714 (9th Cir. 1998) (same); U.S. v.
Johnston, 146 F.3d 785, 795 (10th Cir. 1998) (same); U.S. v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998)
(same); U.S. v. Leandre; 132 F.3d 796,800 (D.C. Cir.) (same), cert. denied, 118 S. Ct. 1823 (1998).
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appropriate if the court finds that a sentence was imposed in violation of the
applicable statute,2702 was imposed as a result of an incorrect application of the
Guidelines,2703 is outside the applicable Guidelines range and unreasonable,2704 or is
plainly unreasonable in a case of offense for which no sentencing guideline has been
issued. 2705
If the defendant or the government fails to raise an alleged sentencing error at
sentencing, usually through an objection, the claim will only be reviewed on appeal
for plain error. 2706 Even if the alleged sentencing error is plain error,2707 an appellate
2702. 18 U.S.C. § 3742(e)(I) (1994).
2703. [d. § 3742(e)(2).
2704. [d. § 3742(e)(3); see U.S. v. Weaver, 920 F.2d 1570, 1573 (lith Cir. 1991) ("[D]irection and
degree of departure must, on appeal, be measured by a standard of reasonableness" (quoting U.S. v.
Diaz-Villafane, 874 F.2d 43, 49 (1st Cir. 1989». Compare U.S. v. Mora, 22 F.3d 409, 414 (2d Cir. 1994)
(life term of supervised release, as opposed to five-year maximum term, unreasonable for drug offender if
based solely on defendant's recidivism); U.S. v. MacLeod, 80 F.3d 860, 869 (3d Cir. 1996) (235-month
sentence, as opposed to 151-month sentence, for five additional offenses of child pornography, unreasonable as under Guidelines additional punishment should decline as number of offenses increases); U.S. v.
Crouse, 145 F.3d 786, 792 (6th Cir. 1998) (sentence of horne confinement, a nine-level reduction,
unreasonable for defendant convicted of selling adulterated orange juice); U.S. v. Horton, 98 F.3d 313,
318 (7th Cir. 1996) (upward departure of eight levels unreasonable because defendant's conduct did not
evince intent to carry out threat to bomb government building and fact that similar crime had been
committed day before could not influence reasonableness of sentence); U.S. v. Nagra, 147 F.3d 875, 886
(9th Cir. 1998) (upward departure of six levels unreasonable for immigration-related fraud because
conspiracy involved 180 aliens, which did not meet burden of being "substantially more" than 100
aliens, as provided by guideline); U.S. v. Arutunoff, I F.3d 1112, 1I20-21 (10th Cir. 1993) (sentencing at
offense level 10, as opposed to level 20, under Guidelines, unreasonable for securities fraud conspiracy in
light of district court's grounds for departure) and U.S. v. Costales, 5 F.3d 480, 486 (11th Cir. 1993)
(downward departure unreasonable for defendant convicted of receiving child pornography in mail
because it undermined jury's verdict) with U.S. v. Twitty, 104 F.3d I, 2-3 (1st Cir. 1997) (97-month
sentence not unreasonable for using large number of guns and endangering public safety); U.S. v. Ashley,
141 F.3d 63, 70 (2d Cir. 1998) (upward departure of four levels for defendant's high likelihood of
recidivism not unreasonable), cert. denied, 1I9 S. Ct. 203 (1998); U.S. v. Baird, 109 F.3d 856, 872 (3d
Cir.) (upward departure of four levels not unreasonable for conduct resulting in harm to government that
was infinitely worse than analogous guideline), cert. denied, 1I8 S. Ct. 243 (1997); U.S. v. Walker, 29
F.3d 908, 913-14 (4th Cir. 1994) (upward departure of eight levels for defendant's undervaluing of
personal property not unreasonable because relevant conduct); U.S. v. Kay, 83 F.3d 98, 103 (5th Cir.
1996) (upward departure of seven levels not unreasonable in light of intricacy of defendant's scheme and
repetitive abuse of trusts); U.S. v. Pittman, 55 F.3d 1I36, 1I40 (6th Cir. 1995) (upward departure for
solicitation to commit murder not unreasonable in light of fact that offense involved two victims); U.S. v.
Paredes, 87 F.3d 921, 927 (7th Cir. 1996) (upward departure of two levels for impersonating an FBI
official not unreasonable in light of significant risk of recidivism); U.S. v. McCarthy, 97 F.3d 1562, 1581
(8th Cir. 1996) (upward departure of nine months not unreasonable for investing in drug activity and
laundering money through charitable donations), cert. denied, 1I7 S. Ct. 1284 (1997); U.S. v. Sablan, 1I4
F.3d 913, 919 (9th Cir. 1997) (upward departure not unreasonable for maliciously destroying post office
property), cert. denied, 1I8 S. Ct. 851 (1998); U.S. v. Smith, 133 F.3d 737, 752 (10th Cir. 1997) (upward
departure not unreasonable for criminal history and large chance of recidivism) and U.S. v. Lewis, 1I5
F.3d 1531, 1539 (lith Cir. 1997) (upward departure of three levels not unreasonable because enhanced
sentence would protect vulnerable members of society and deter future "predators" of fraud), cert.
denied, 1I8 S. Ct. 733 (1998).
2705. 18 U.S.C. § 3742(e)(4) (1994). Furthermore, if the court of appeals concludes that a sentence is
outside the applicable Guidelines range and is unreasonable, or was imposed for an offense for which
there is no sentencing guideline and is plainly unreasonable, it must state specific reasons for its
conclusion. [d. § 3742(f)(2).
2706. FED. R. CRIM. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court. "); see Plain Error in APPEALS in this Part.
2707. FED. R. CRIM. P. 52(b); see U.S. v. Mangone, 105 F.3d 29, 36 (1st Cir.) (plain error when district
court failed to provide defendant with notice of planned two-year upward departure), cert. denied, 117 S.
Ct. 2424 (1997); U.S. v. Martinez-Rios, 143 F.3d 662, 676 (2d Cir. 1997) (plain error when district court
made arithmetical mistake when computing tax loss); U.S. v. Knobloch, 131 F.3d 366, 371 (3d Cir. 1997)
(plain error when district court imposed offense characteristic enhancement contrary (0 Guidelines
application note); U.S. v. Perkins, 108 F.3d 512, 517-18 (4th Cir. 1997) (plain error wh~ n district court
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court may still affirm the sentence on the ground that the error was harmless.2708
gave 52-month downward departure based on its own "sense of symmetry and justice"); U.S. v. Wilson,
116 F.3d 1066, 1085 (5th Cir. 1997) (plain error where district court based sentencing on a verdict
subsequently found infirm), cert. denied, 118 S. Ct. 704 (1998); U.S. v. Barajas-Nunez, 91 F.3d 826, 831
(6th Cir. 1996) (plain error when downward departure for diminished mental capacity based on defendant's lack of education); U.S. v. Otis, 107 F.3d 487, 489 (7th Cir. 1997) (plain error when district court
failed to give defendant notice of sua sponte intent to depart upward); U.S. v. Farnsworth, 92 F.3d 1001,
1009 (10th Cir. 1996) (plain error when upward departure based on ancient felony conviction contrary to
Guidelines); U.S. v. Zapata, 139 F.3d 1355, 1359 (lith Cir. 1998) (plain error when district court
improperly "rounded up" weight of narcotics); U.S. v. Mitchell, 49 F.3d 769, 785 (D.C. Cir. 1995) (plain
error when district court failed to consider defendant's eligibility for downward adjustment as minor
participant in drug conspiracy in light of explicit finding that defendant less culpable than coconspirators). For further discussion of the plain error doctrine, see Plain Error in APPEALS in this Part.
2708. 28 U.S.C. § 2111 (1994); FED. R. CRIM. P. 52(a). Compare U.S. v. Brewster, 127 F.3d 22, 30 (1st
Cir. 1997) (error of court's reliance on defendant's failure to seek treatment for alcoholism and physical
abuse harmless when other grounds for departure relied on and adequate to support departure), cert.
denied, 118 S. Ct. 1543 (1998); U.S. V. Corace, 146 F.3d 51,55 (2d Cir. 1998) (error in court conducting
ex parte communication with court-appointed plan trustee harmless when defendant did not challenge any
facts or inferences drawn from the communication, only his deprival of notice); U.S. v. Spiers, 82 F.3d
1274, 1278 n.2 (3d Cir. 1996) (error in discretionary imposition of consecutive sentences under 1994
Guidelines rather than 1990 version harmless when earlier version provided greater discretion to
sentencing court); U.S. v. Sampson, 140 F.3d 585, 593 (4th Cir. 1998) (error in calculating amount of
proceeds from counterfeit drug sale harmless when defendant's base offense level not affected by
quantity); U.S. v. Brito, 136 F.3d 397, 416 (5th Cir.) (any error in calculating amount of marijuana
transported harmless when defendant's offense level would have been the same even under most
conservative estimate of quantity), cert. denied, 118 S. Ct. 1817 (1998); U.S. v. Parrott, 148 F.3d 629,634
(6th Cir. 1998) (error in failing to make specific factual findings to support upward adjustment harmless
when defendant's own statements at plea hearing establish that he committed crime); U.S. V. Newman,
148 F.3d 871, 877 n.4 (7th Cir. 1998) (error when court erroneously assessed criminal history points
based on state court convictions harmless when defendant would have been in same criminal history
category even without state convictions); U.S. v. Whatley, 133 F.3d 601, 607 (8th Cir.) (error in
calculating amount of money laundered harmless when court would have imposed same sentence absent
error), cert. denied, 118 S. Ct. 2347 (1998); U.S. V. Ripinsky, 109 F.3d 1436, 1445 (9th Cir. 1997) (error
in calculating precise amount involved in fraud harmless when same sentence would apply to any amount
possible in particular case), cert. denied, 118 S. Ct. 870 (1998); U.S. v. Anaya, 117 F.3d 447, 448-49
(10th Cir. 1997) (error in admitting alien's prior conviction for sentencing enhancement harmless when
evidence against alien was overwhelming); U.S. v. Jones, 143 F.3d 1417, 1420 (lith Cir. 1998) (error in
failing to inform defendant of mandatory minimum sentence harmless when signed, written plea
agreement described minimum sentence) and U.S. v. Gaviria, 116 F.3d 1498, 1525 (D.C. Cir. 1997) (error
in failing to inform defendant that failing to challenge prior convictions constituted waiver harmless
when defendant raised challenges that had no factual basis), cert. denied sub nom., Naranjo v. U.S., 118
S. Ct. 865 (1998) with Maynard v. Cartwright, 486 U.S. 356, 364-65 (1988) (error in applying
unconstitutionally vague aggravating circumstance when considering death penalty not harmless when
statute required sentencer to balance aggravating and mitigating circumstances); U.S. V. Jimenez Martinez, 83 F.3d 488, 494 (1st Cir. 1996) (error in district court's unquestioning reliance on co-defendant's
affidavit to establish drug quantity as basis for sentence not harmless when defendants shared no common
language); U.S. v. Ming He, 94 F.3d 782, 794 (2d Cir. 1996) (error in sentencing defendant who was
denied presence of counsel at debriefing interview not harmless when court relied on defendant's lack of
candor in sentencing); U.S. v. Demes, 941 F.2d 220, 223 (3d Cir. 1991) (error in district court's failure to
consider defendant's ability to pay not harmless when statute required finding as to defendant's ability to
pay); U.S. v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998) (error in counting prior convictions separately in
determining defendant's criminal history score not harmless when no evidence court would have imposed
same sentence absent error); U.S. v. Stewart, 917 F.2d 970, 973 (6th Cir. 1990) (error in district court's
determination that it lacked discretion to impose concurrent sentence for crime committed while serving
unexpired sentence for unrelated offense not harmless when discretion existed under Guidelines); U.S. v.
Wallace, 114 F.3d 652, 656 (7th Cir. 1997) (error in deducting credit for substantial assistance because
defendant had already been rewarded deduction by other guideline not harmless when two guidelines
should have been considered separately); Anderson v. Hopkins, 113 F.3d 825, 830 (8th Cir. 1997) (error
in reliance on invalid factor in imposing death sentence not harmless when not clear that sentence would
have been same without reliance on factor); U.S. v. Alerta, 96 F.3d 1230, 1235-36 (9th Cir. 1996) (error in
jury instructin!l related to type of firearm involved not harmless when it could not be determined that jury
found specific type of firearm which affected sentencing); U.S. v. Ruiz-Castro, 92 F.3d 1519, 1536 (10th
Cir. 1996) (error in failing to advise defendant that failure to challenge prior convictions constituted
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Correction and Reduction of Sentence Under Rule 35. Following a successful
appeal of the sentence, the district court is required to correct the sentence either in
accordance with the appellate court's findings or, if the appellate court simply
remands for further proceedings, in accordance with the district court's own determination of whether the original sentence was incorrect. 2709
Notwithstanding an appeal of a sentence, a district court is permitted under Rule
35 to reduce a sentence to reflect the defendant's subsequent, substantial assistance in
the investigation or prosecution of another criminal. 27lO Such a reduction may be
granted only on motion by the government. 2711 Prison terms may also be reduced for
waiver not harmless when defendant may not have understood ability to challenge conviction) and U.S. v.
Siegel, 102 F.3d 477, 481 (lIth Cir. 1996) (error in failing to inform defendant of mandatory minimum
sentence not harmless). For a discussion of the harmless error doctrine, see Harmless Error in APPEALS in
this Part.
2709. FED. R. CRIM. P. 35(a). Because such a correction is the imposition of a new sentence, the
defendant is entitled to be present and to allocute at resentencing. U.S. v. Moree, 928 F.2d 654, 655-56
(5th Cir. 1991) (sentencing vacated and remanded because defendant not present during resentencing and
not given 0ppOJ:tunity to allocute); U.S. v. Taylor, 11 F.3d 149, 152 (11th Cir. 1994) (same); see also FED.
R. CRlM. P. 43(a) (defendant entitled to be present during sentencing). The cases in which these rights
attach are narrowly circumscribed. See U.S. v. De Los Santos-Himitola, 924 F.2d 380, 382-83 (1st Cir.
1991) (defendant not entitled to be present for sua sponte correction by district court to remove
possibility of parole, so as to make sentence conform to Anti-Drug Abuse Act); U.S. v. Agard, 77 F.3d 22,
25 (2d Cir. 1996) (defendant not entitled to be present for modification to make sentence less onerous
given prior opportunities to object); U.S. v. Pineda, 988 F.2d 22,23 (5th Cir. 1993) ("[W]here the entire
sentencing package has not been set aside, a correction of an illegal sentence does not constitute a
resentencing requiring the presence of the defendant, so long as modification does not make the sentence
more onerous." (quoting U.S. v. Jackson, 923 F.2d 1494, 1497 (11th Cir. 1991))). The rights to be present
and to allocute may be waived by the defendant. U.S. v. Doe, 964 F.2d 157, 158-59 (2d Cir. 1992).
2710. FED. R. CRIM. P. 35(b); see U.S. v. Drown, 942 F.2d 55, 59 (lst Cir. 1991) (dictum) (Rule 35(b)
designed to reward substantial assistance rendered by defendant after sentence imposed); U.S. v. Speed,
53 F.3d 643, 645 (4th Cir. 1995) (downward departure granted pursuant to Rule 35(b) can apply only to
substantial assistance that takes place after sentencing); U.S. v. Hayes, 5 F.3d 292, 294 (7th Cir. 1993)
(downward departure granted pursuant to Rule 35(b) for substantial assistance valid where grounds for
departure reasonable); U.S. v. Jenkins, 105 F.3d 411, 412 (8th Cir. 1997) (plea agreement promise to file
Rule 35 motion in exchange for substantial assistance is enforceable); cf U.S. v. Luiz, 102 F.3d 466, 469
(lith Cir. 1996) (sentence reduction may be based only on factors related to defendant's substantial
assistance). But cf U.S. v. Manella, 86 F.3d 201, 204 (lith Cir. 1996) (seriousness of offense and the
need for just punishment may militate against granting Rule 35(b) reduction even with substantial
assistance). The extent of the downward departure is not reviewable, as it does not fall within one of the
three categories of appeal authorized by 18 U.S.C. § 3742(a). See U.S. v. Doe, 93 F.3d 67, 67-68 (2d Cir.
1996) (dismissing defendant's complaint for lack of jurisdiction to review extent of district court's Rule
35(b) reduction), cert. denied, 117 S. Ct. 944 (l997); U.S. v. Pridgen, 64 F.3d 147, 148-50 (4th Cir. 1995)
(same); U.S. v. McDowell, 117 F.3d 974,977-78 (7th Cir. 1997) (same); U.S. v. Coppedge, 135 F.3d 598,
599 (8th Cir. 1998) (same); U.S. v. Arishi, 54 F.3d 596, 597-99 (9th Cir. 1995) (same); U.S. v. McMillan,
106 F.3d 322, 324 n.2 (lOth Cir. 1997) (same); U.S. v. Manella, 86 F.3d 201, 202-03 (lith Cir. 1996)
(same); but see U.S. v. McAndrews, 12 F.3d 273, 277-78 (lst Cir. 1993) (court has jurisdiction to hear
appeal because Rule 35(b) motion is not a sentence and is therefore governed by 28 U.S.C. § 1291, not 18
U.S.C. § 3742(a».
An amendment to Rule 35(b), which reads as follows, became effective on December I, 1998: "(b)
Reduction of Sentence for Substantial Assistance. If the Government so moves within one year after the
sentence is imposed, the court may reduce the sentence to reflect a defendant's subsequent substantial
assistance in investigating or prosecuting another person, in accordance with the guidelines and policy
statements issued by the Sentencing Commission under 28 U.S.C. § 994. The court may consider a
government motion to reduce a sentence made one year or more after the sentence is imposed if the
defendant's substantial assistance involves information or evidence not known by the defendant until one
year or more after sentence is imposed. In evaluating whether substantial assistance has been rendered,
the court may consider the defendant's pre-sentence assistance. In applying this subdivision, the court
may reduce the sentence to a level below that established by statute as a minimum sentence."
2711. FED. R. CRIM. P. 35(b); see U.S. v. Fraley, 988 F.2d 4,6-7 (4th Cir. 1993) (district court may not
"simply ... change its mind about the appropriateness of sentence"; absent error in original sentence,
Rule 35(b) permits reduction of sentence only upon government motion for substantial assistance); U.S.
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extraordinary or compelling reasons, but only on motion by the Bureau of Prisons. 2712 A defendant may move for reduction of sentence under the Sentencing
Reform Act only when the sentencing range under which the sentence was imposed is
subsequently lowered. 2713
Constitutional Challenges. The imposition of a sentence may violate the Eighth
Amendment, which prohibits the infliction of cruel and unusual punishment2714 upon
persons convicted of a crime.271 5 The Cruel and Unusual Punishment Clause limits
criminal punishment in three ways: (1) it "imposes substantive limits on what can be
made criminal and punished as such";2716 (2) it prohibits certain kinds of punishment;2717
v. Hayes, 983 F.2d 78, 81 (7th Cir. 1992) (sentence reduction under Rule 35 must be upon motion by
government and only for substantial assistance).
The district court must consider the Guidelines and policy statements issued by the Sentencing
Commission in any reduction of sentence. See Williams v. U.S., 503 U.S. 193, 201 (1992) (Guidelines
binding and policy statements "authoritative guide" to their meaning). The district court has authority to
reduce a sentence pursuant to Rule 35(b) below the statutory minimum on government motion. FED. R.
CRIM. P. 35(b).
The Rule 35(b) motion to reduce a sentence for substantial assistance subsequent" to the defendant's
initial sentencing is distinct from a government motion to depart downward under § 5Kl.I of the
Guidelines or 18 U.S.C. § 3553(e) for substantial assistance given before sentencing. See U.S. v. Drown,
942 F.2d 55,59 (1st Cir. 1991) (§ 5KU rewards assistance prior to sentencing while Rule 35(b) awards
subsequent cooperation); U.S. v. Bureau, 52 F.3d 584, 594 (6th Cir. 1995) (Rule 35(b) resentencing
provision temporally distinguishable from § 5KU); U.S. v. Alvarez, 115 F.3d 839... 842 (lIth Cir. 1997)
(Rule 35 reduction cannot be used to reflect substantial assistance rendered prior to sentencing). For a
discussion of § 5Kl.I and 18 U.S.C. § 3553, see Departures in SENTENCING GUIDELINES in Part IV.
2712. 18 U.S.C. § 3582(c)(1)(A) (1994). Reduction of sentence under this provision is wholly separate
from Rule 35; the Senate Judiciary Committee explained that this provision applies to the unusual case in
which the defendant's circumstances are so changed, such as by terminal illness, that continued
confinement would be inequitable. S. REp. No. 225, supra note I, at 121, reprinted in 1984 U.S.C.C.A.N.
at 3304. The provision may be applied regardless of the length of the sentence. [d.
2713. 18 U.S.C. § 3582(c)(2) (1994). Motion for such reduction may also be made by the Bureau of
Prisons or by the court. [d. But cf U.S. v. Allison, 63 F.3d 350, 351-53 (5th Cir. 1995) (defendapt not
entitled to adjustment based on retroactive amendment when sentence based in part on factors not
relevant to amended Guideline provision); U.S. v. Brown, 104 F.3d 1254, 1255 (11th Cir. 1997) (same).
2714. The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted." U.S. CONST. amend. VIII. The prohibition against
cruel and unusual punishment is applicable to the states through the Fourteenth Amendment. Robinson v.
California, 370 U.S. 660, 666-67 (1962).
Review of criminal fines is governed by the Excessive Fines Clause of the Eighth Amendment. See
Alexander v. U.S., 509 U.S 544, 558-59 (1993) (Excessive Fines Clause of the Eighth Amendment
applies to in personam criminal forfeiture for purposes of determining "excessive" penalty; proportionality review under Solem, not appropriate with respect to imposition of criminal forfeiture); see also Austin
v. U.S., 509 U.S. 602, 622 (1993) (declining to establish a multifactor test to determine whether forfeiture
is constitutionally excessive).
2715. Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1977) (Eighth Amendment concerned with
punishment imposed after state has secured formal adjudication of guilt).
2716. [d. at 667. The Supreme Court has held unconstitutional the imposition of criminal punishment
for status offenses involving punishment for personal characteristics rather than illegal acts. In Robinson,
the Court held that the imposition of a criminal penalty for being addicted to narcotics was cruel and
unusual punishment. 370 U.S. at 666-67. In Powell v. Texas, 392 U.S. 514 (1968) (plurality opinion), the
Court held that the Robinson holding did not apply to the imposition of criminal punishment on a chronic
alcoholic for public intoxication. The Court reasoned that the defendant was convicted not for the mere
status of being a chronic alcoholic, but for the act of public drunkenness. [d. at 532. The Powell Court
unanimously agreed that punishing a chronic alcoholic criminally for the status of being an alcoholic
would be cruel and unusual punishment. Id. (dictum); id. at 549 (White, J., concurring); id. at 569-70
(Fortas, J., dissenting); see U.S. v. Black, 116 F.3d 198, 201 (1st Cir.) (sentencing of defendant for
distributing child pornography did not punish defendant's status of being pedophile which would violate
Eighth Amendment), cert. denied, 118 S. Ct. 341 (1997); U.S. v. Jester, 139 F.3d 1168, 1170 (7th Cir.
1998) (Robinson defense rejected because defendant not punished solely for being convicted felon but for
being convicted felon in possession of firearm that has traveled in interstate commerce); U.S. v. Hall, 952
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and (3) it prohibits punishment "grossly disproportionate" to the severity of the
offense. 2718 In Solem v. Helm,2719 the Supr~me Court posited three criteria for
analyzing the proportionality of sentences: 2720 (1) a comparison of the gravity of the
F.2d 1170, 1171 (9th Cir. 1991) (per curiam) (Robinson defense rejected because denial of downward
departure for acceptance of responsibility not punishment of mentally impaired status of defendant, but
based upon reason that defendant's acts of acceptance not credible); U.S. v. Blackner, 901 F.2d 853,
854-55 (10th Cir. 1990) (Robinson defense rejected because possession of narcotics with intent to
distribute, unlike status or state of addiction, culpable act); U.S.v. Benefield, 889 F.2d 1061, 1064 (11th
Cir. 1989) (Robinson defense "not applicable when the government seeks to punish a person's actions").
2717. Ingraham, 430 U.S. at 667; see In re Kemmler, 136 U.S. 436, 447 (1890) (torture and lingering
death not permissible); Wilkerson v. Utah, 99 U.S. 130, 136 (1878) (torture and all punishments involving
unnecessary cruelty not permissible). For discussion of whether certain forms of capital punishment are
unconstitutional, see note 2371 in CAPITAL PUNISHMENT in Part IV.
2718. Ingraham, 430 U.S. at 667. Compare Solem, 463 U.S. at 303 (life sentence without possibility of
parole for seventh nonviolent felony, passing $100 no-account check, cruel and unusual punishment) and
Weems v. U.S., 217 U.S. 349, 381-82 (1910) (15-year sentence to hard labor and forfeiture of citizenship
for falsifying entries in public record cruel and unusual punishment) with Harmelin v. Michigan, 501 U.S.
957, 990-96 (1991) (plurality opinion) (life imprisonment without parole for possessing 672 grams of
cocaine not cruel and unusual punishment); Rummel v. Estelle, 445 U.S. 263, 284-85 (1980) (life
imprisonment for property crime under state recidivist statute not so disproportionate as to constitute
cruel and unusual punishment); U.S. v. Graciani, 61 F.3d 70, 76 (1st Cir. 1995) (280-month sentence for
distributing 85.3 grams of cocaine not cruel and unusual punishment); U.S. v. Santos, 64 F.3d 41,47 (2d
Cir. 1995) (30-year sentence for use of gun with silencer during commission of drug offense not cruel and
unusual punishment), vacated on other grounds, 116 S. Ct. 1038 (1996); U.S. v. Whyte, 892 F.2d 1170,
1175-76 (3d Cir. 1989) (35-year sentence for third offense involving $4,000 of crack cocaine and pulling
loaded weapon on officer not excessive when compared to longer sentences for lesser offenses); U.S. v.
Kratsas, 45 F.3d 63, 68 (4th Cir. 1995) (mandatory life sentence without possibility of parole for
possession with intent to distribute five kilograms of cocaine when defendant repeat drug offender not
cruel and unusual punishment); U.S. v. Gonzales, 121 F.3d 928, 943-44 (5th Cir. 1997) (sentence
enhancement of 30 years for using machine gun during drug offense not cruel and unusual punishment),
cert. denied, 118 S. Ct. 1084 (1998); U.S. v. Organek, 65 F.3d 60, 62-63 (6th Cir. 1995) (2l-month
sentence imposed for possession of short-barrelled shotgun not cruel and unusual punishment); U.S. v.
Magana, 118 F.3d 1173, 1209 (7th Cir. 1997) (mandatory minimum sentence of 240 months for repeat
drug offender not cruel and unusual punishment), cert. denied, 118 S. Ct. 1104 (1998); U.S. v. Prior, 107
F.3d 654, 659-60 (8th Cir.) (life sentence without parole where defendant had three prior drug felony
convictions and intended to distribute 1,147.6 grams of methamphetamine not cruel and unusual
punishment), cert. denied, 118 S. Ct. 84 (1997); Belgarde v. Montana, i23 F.3d 1210, 1215 (9th Cir.
1997) (six-month sentence with seven days suspended for second-time D.U.I. conviction not cruel and
unusual punishment); U.S. v. Robertson, 45 F.3d 1423, 1447 (10th Cir. 1995) (life sentence for defendanl
convicted of leading conspiracy involving 871 grams of cocaine not cruel and unusual punishment); U.S.
v. Quinn, 123 F.3d 1415, 1425 (11th Cir. 1997) (235-month sentence for crack-cocaine offense not cruel
and unusual punishment), cert. denied, 118 S. Ct. 1203 (1998) and U.S. v. Spencer, 25 F.3d 1105, 1110-11
(D.C. Cir. 1994) (30-year sentence as career offender for possession of less than eight grams of narcotics
with intent to distribute not cruel and unusual punishment).
A punishment once considered constitutional may be considered excessive in violation of the Eighth
Amendment if it contravenes "the evolving standards of decency that mark the progress of a maturing
society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). Because this principle has seen its
greatest application in death penalty challenges, it is discussed in Proportionality in CAPITAL PUNISHMENT
in Part IV.
2719. 463 U.S. 277 (1983).
2720. Id. at 292. The Court in Solem held that the imposition of a life sentence without the possibility
of parole for a seventh nonviolent felony conviction violated the Eighth Amendment. Id. at 303. This
decision appears to contradict the Court's prior decision in Rummel v. Estelle, 445 U.S. 263 (1980),
which upheld a mandatory life sentence imposed after a third felony conviction under Texas's recidivist
statute. Id. at 285. Rummel intimated that, except in the most extraordinary cases, the length of felony
sentences is "purely a matter of legislative prerogative." Id. at 274 (footnote omitted). Solem narrows
this view of near absolute legislative discretion by proffering a "substantial deference" standard. 463
U.S. at 288-89 n.16. The Court distinguished Rummel by noting that the defendant in Rummel would
eventually be considered for parole whereas the defendant in Solem would not. Id. at 297.
The circuits disagree whether the possibility of parole forecloses proportionality analysis of a sentence.
The Fourth, Sixth, and Eighth Circuits do not require proportionality review for any sentence less than
life imprisonment without parole. See U.S. v. Lockhart, 58 F.3d 86, 89 (4th Cir. 1995) (proportionality
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offense with the harshness of the penalty; (2) a comparison of the sentence with those
imposed for various offenses in the same jurisdiction; and (3) a comparison of the
sentence with those imposed for the same or similar offenses in other jurisdictions. 272l In Harmelin v. Michigan,2722 the Court was unable to agree on the effect of
Solem. Two Justices denied that the Eighth Amendment contained any guarantee of
proportionality.2723 The three-Justice concurrence held that the only proper occasion
for a comparative analysis of sentences bringing into play the second and third
factors of Solem was "to validate an initial judgment that a sentence is grossly
disproportionate to a crime."2724 The dissent would continue to apply the three-prong
review not appropriate for any sentence less than life imprisonment without possibility of parole); U.S. v.
Organek, 65 F.3d 60,63 (6th Cir. 1995) (proportionality review not required "except in cases where the
penalty imposed is death or life in prison without possibility of parole" (quoting U.S. v. Thomas, 49 F.3d
253,261 (6th Cir. 1995))); U.S. v. Meirovitz, 918 F.2d 1376, 1381 (8th Cir. 1990) (proportionality review
appropriate for life sentence without possibility of parole). The Third Circuit does not engage in extended
proportionality review if parole is available. See U.S. v. Whyte, 892 F.2d 1170, 1176 n.16 (3d Cir. 1989)
(abbreviated proportionality review satisfies Eighth Amendment requirements when defendant received
less than life sentence without possibility of parole). The Fifth Circuit has indicated that the possibility of
parole, although a factor in determining the proportionality of a sentence, does not foreclose review when
a defendant is sentenced for a serious offense. See U.S. v. Lemons, 941 F.2d 309, 320 (5th Cir. 1991)
(availability of parole for defendant convicted under career offender provisions of Guidelines for
manufacturing marijuana not sufficiently disproportionate to trigger application of Solem analysis). The
Tenth Circuit has held that the availability of parole is relevant to determining whether the length of the
sentence violates the Eighth Amendment. Gutierrez v. Moriarty, 922 F.2d 1464, 1473 (10th Cir. 1991)
(life sentence not grossly disproportionate to repeat drug offenses given that defendant paroled after only
seven years imprisonment).
Three circuits have rejected arguments that a defendant's advanced age can make a prison term of years
tantamount to life imprisonment or a death sentence. See U.S. v. LaRouche, 896 F.2d 815, 831-32 (4th
Cir. 1990) (defendant's age irrelevant to proportionality analysis where sentence is not for life); U.S. v.
Murphy, 899 F.2d 714, 719 (8th Cir. 1990) (defendant's age "irrelevant to the validity of his sentences
under the Eighth Amendment"); U.S. v. Thornbrugh, 7 F.3d 1471, 1473 (10th Cir. 1993) (age itself
ordinarily irrelevant in determining whether sentence should be outside applicable Guidelines range when
total sentence in excess of defendant's life expectancy).
2721. Solem, 463 U.S. at 292. These tests do not limit sentencing discretion by requiring rigid equality.
A sentence is not disproportionate under the Eighth Amendment just because it exceeds a co-defendant's
sentence. See U.S. v. Pavlico, 961 F.2d 440, 447-48 (4th Cir. 1992) (40-year sentence for mail fraud not
disproportionate to co-defendant's 20-year sentence where defendant more to blame and both defendants
eligible for parole after 10 years); Russell v. Collins, 998 F.2d 1287, 1294 (5th Cir. 1993) (death sentence
for murder not disproportionate to co-defendant's 60-year sentence pursuant to plea bargain where
defendant chose jury trial and no evidence of prosecutorial vindictiveness); U.S. v. Coonce, 961 F.2d
1268, 1281-83 (7th Cir. 1992) (three consecutive five-year sentences not disproportionate to codefendants' lesser sentences because defendant's organizing role in offense); U.S. v. Prior, 107 F.3d 654,
660 (8th Cir.) (comparison of defendant's conduct with other defendants receiving similar sentences only
appropriate after gross disproportionality established), cert. denied, 118 S. Ct. 84 (1997); U.S. v.
Whitecotton, 142 F.3d 1194, 1200 (9th Cir. 1998) (lO-year sentence for any offense not disproportionate
when defendant pleaded guilty and cooperated with prosecutors); cf U.S. v. Jones, 145 F.3d 959, 963 (8th
Cir. 1998) (sentence not subject to proportionality review comparing defendant's sentence of 30 years
with more culpable co-defendant's lesser sentence of seven years); Hatch v. Oklahoma, 58 F.3d 1447,
1466-67 (lOth Cir. 1995) (death sentence for first-degree murder not subject to proportionality review
comparing defendant's sentence with co-defendant's lesser sentence).
2722. 501 U.S. 957 (l991).
2723. [d. at 965 (Scalia, J. & Rehnquist, C.J., concurring).
2724. [d. at 1004-05 (Kennedy, O'Connor & Souter, JJ., concurring). The concurrence stated that,
given the pernicious nature of the defendant's crime, the sentence was within constitutional boundaries
and the additional Solem factors need not be considered. [d. at 1004. The concurrence concluded that
Solem "is best understood as holding that comparative analysis within and between jurisdictions is not
always relevant to proportionality review." [d. at 1004-05.
Justice Scalia, in an opinion joined only by Chief Justice Rehnquist, stated that, except in death penalty
cases, the Eighth Amendment does not contain a proportionality requirement. [d. at 994-95 (Scalia, J. &
Rehnquist, C.J., concurring). Accordingly, the two Justices would overrule Solem as "simply wrong; the
Eighth Amendment contains no proportionality guarantee." [d. at 965.
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Solem test, with "no one factor ... be[ing] dispositive. "2725
The Solem Court envisioned that invalidation of sentences based upon disproportionality would occur infrequently.2726 Appellate courts generally do not disturb
sentences imposed for noncapital felony convictions that fall within statutorily
prescribed limits2727 unless the sentencing judge commits an abuse of discretion in
imposing a sentence. 2728
Larry Cunningham
Thus, five Justices in Harmelin held that the imposition of life in prison without the possibility of
parole for possession of 672 grams of cocaine did not violate the Eighth Amendment. [d. at 994-95
(Scalia, J. & Rehnquist, C.J., concurring); id. at 1002-04 (Kennedy, O'Connor & Souter, n., concurring);
see U.S. v. D'Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994) (applied Harmelin proportionality test; life
imprisonment without parole for drug conspiracy, possession, and distribution offenses not cruel and
unusual); Smallwood v. Johnson, 73 F.3d 1343, 1346-47 (5th Cir. 1996) (applied Harmelin's "threshhold .
comparison" test; 50-year sentence for misdemeanor theft, made felony by recidivist statute, not grossly
disproportionate); U.S. v. Hill, 30 F.3d 48,50-51 (6th Cir. 1994) (applied Harmelin's "narrow proportionality" test; mandatory life imprisonment without parole upon third felony drug conviction not grossly
disproportionate); Simmons v. Iowa, 28 F.3d 1478, 1482-83 (8th Cir. 1994) (applied Harmelin's less
exacting review; mandatory life imprisonment without parole fOf aiding and abetting restraint and torture
of child not grossly disproportionate).
2725. Harmelin, 501 U.S. at 1019, 1021-23 (White, Blackmun & Stevens, n., dissenting); id. at 1027
(Marshall, J., dissenting).
2726. Solem, 463 U.S. at 290 n.16. Until Harmelin, the Supreme Court had not considered any
noncapital claims of disproportionality. In contrast, the Court has decided many cases alleging disproportionate punishment for capital crimes. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (death
penalty not disproportionate for moderately mentally retarded); Stanford v. Kentucky, 492 U.S. 361, 380
(1989) (plurality opinion) (death penalty not disproportionate for 16- and 17-year-old defendants);
Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (plurality opinion) (death penalty disproportionate for
15-year-old offender); Tison v. Arizona, 481 U.S. 137, 158 (1987) (death penalty not disproportionate for
defendant who does not kill, but who participated with reckless indifference in felony that resulted in
murder); Ford v. Wainwright, 477 U.S. 399,409-10 (1986) (plurality opinion) (death penalty disproportionate for insane prisoner).
Because it is qualitatively different from all other forms of criminal punishment, the death penalty has
generated its own body of law. See Seritt v. Alabama, 731 F.2d 728, 732 (11th Cir. 1984) (Supreme Court
decisions in capital cases of limited assistance in deciding constitutionality of punishment in noncapital
cases). The proportionality of capital sentencing is discussed in CAPITAL PUNISHMENT in Part IV.
2727. See Harmelin, 501 U.S. at 998-99; Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (per curiam)
(sentence for term of years not violation of Eighth Amendment because within statutory limit); U.S. v.
Richard, 943 F.2d 115, 120 (1st Cir. 1991) (10-year sentence for possession with intent to distribute 1,000
kilograms of marijuana not excessive because within statutory limits); U.S. v. Whiteley, 54 F.3d 85, 92
(2d Cir. 1995) (84-month sentence imposed on defendant for bank robbery affirmed, even though district
court did not comply with relevant Guidelines, because sentence within statutory limits); U.S. v. Mobley,
956 F.2d 450, 455-59 (3d Cir. 1992) (27-month prison sentence with three years supervised release not
violation of due process because within Guidelines); U.S. v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992)
(40-year prison sentence not illegal for purposes of appeal under Rule 35(a) because within statutory
limits); U.S. v. Prudhome, 13 F.3d 147, 150 (5th Cir. 1992) (288-month sentence for firearm possession
by felon not violation of Eighth Amendment because within Guidelines range); U.S. v. Williams, 15 F.3d
1356, 1364 (6th Cir. 1994) (IO-year sentence for forgery not violation of Eighth Amendment because
within statutory limits); U.S. v. Coonce, 961 F.2d 1268, 1283 (7th Cir. 1992) (three consecutive five-year
sentences for four counts of mail fraud not excessive because within statutory limits and not based upon
improper considerations); U.S. v. Farmer, 73 F.3d 836, 839-840 (8th Cir. 1996) (life sentence for felony
robbery not violation of Eighth Amendment because in accord with recidivist statute); Belgarde v.
Montana, 123 F.3d 1210, 1214 (9th Cir. 1997) (six-month sentence with seven days suspended for
second-time D.U.I. conviction not violation of Eighth Amendment because within statutory limits); U.S.
v. Nicholson, 17 F.3d 1294, 1299 (10th Cir. 1994) (240-month sentence for possession with intent to
distribute 95.05 kilograms of cocaine not cruel and unusual punishment because within Guidelines); U.S.
v. Costa, 947 F.2d 919, 921, 928 (1Ith Cir. 1991) (sentence for drug trafficking offenses not excessive
because within statutory limits).
The deference to statutory limits also applies to fines and "punitive forfeitures." See U.S. v. Emerson,
107 F.3d 77, 81 (1st Cir.) (penalty of $185,000 for federal aviation violation not excessive because
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