*

Honorable John H. Moore, II, Senior U.S. District Judge for

the Middle District of Florida, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-3546.

UNITED STATES of America, Plaintiff-Appellee,

v.

Francis John MANELLA, Defendant-Appellant.

June 25, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 91-175-CR-ORL-19), Patricia C. Fawsett,

Judge.

Before COX and BARKETT, Circuit Judges, and MOORE*

, Senior District

Judge.

PER CURIAM:

Francis John Manella appeals the district court's order

granting the Government's Rule 35(b) motion to reduce Manella's

sentence. This case involves the question of what factors a

district court may consider in determining the extent of a Rule

35(b) sentence reduction. The factors considered by the district

court in this case were appropriate under the rule. We affirm.

I. Facts and Procedural History

Manella and two others were named in an indictment that

included four counts charging narcotics offenses and two forfeiture

counts. Manella agreed to enter a guilty plea to Count One, which

charged conspiracy to import 6,000 pounds of hashish into the

United States in violation of 21 U.S.C. § 963 (1994). Pursuant to

the plea agreement, Manella promised to cooperate with the

Government in connection with the matters made the subject of the
 1

United States Sentencing Commission, Guidelines Manual §

5K1.1 (Nov.1987). Substantial assistance that is provided by the

defendant prior to sentencing may serve as the basis for a

downward departure under U.S.S.G. § 5K1.1 at sentencing. 

Substantial assistance provided after sentencing may serve as the

basis for a sentence reduction under Rule 35(b). United States

v. Howard, 902 F.2d 894, 896-97 (11th Cir.1990). 

remaining charges in the indictment and other investigations. In

return, the Government agreed to consider filing motions pursuant

to United States Sentencing Guideline § 5K1.1 and Rule 35(b) of the

Federal Rules of Criminal Procedure.1

Manella was sentenced in April 1992. The sentencing court

adopted the presentence investigation report ("PSI"), which

concluded that Manella's base offense level was 36, and that he was

entitled to a two-level downward departure for acceptance of

responsibility. On the Government's motion, the sentencing court

also granted a three-level downward departure under U.S.S.G. §

5K1.1 for substantial assistance that Manella had provided prior to

sentencing. The court concluded that Manella's guideline range was

108 to 135 months, and sentenced him to 120 months imprisonment.

After sentencing, Manella continued to help the Government

with several investigations of drug trafficking and other illegal

activities. The Government filed a Rule 35(b) motion in January

1993 to make the motion timely, advising the court that Manella

continued to assist the Government, and requesting that an

evidentiary hearing not be held until the completion of his

assistance. The court denied the motion, stating that it was

familiar with Manella's assistance, and that no further reduction

would be granted. Manella appealed. We held that the denial of

the motion was a breach of Manella's plea agreement, and remanded
 2

The court explained that it lowered Manella's offense level

by one to yield the seven-month reduction. The Government's

recommendation would have required a six-level reduction in

Manella's offense level. See U.S.S.G. § 5A (sentencing table). 

 3The second judge noted that the first judge considered

Manella's sentence to be lenient. The second judge pointed to

the first judge's statement that Manella was "one of the most

culpable people involved in this case, and because you did come

forward, I want you to realize that you're getting a real break,

that under normal circumstances you'd be spending probably the

rest of your life in jail for your culpability in this case. But

the court ... will sentence you to a hundred and twenty

months...." (R.2 at 15) (transcript of April 1992 sentencing

hearing). 

for a hearing before a different district judge. United States v.

Manella, 37 F.3d 635 (11th Cir.1994) (citing United States v. Yesil

("Yesil I"), 991 F.2d 1527 (11th Cir.1992)).

At the Rule 35(b) hearing, a second judge heard evidence of

Manella's post-sentencing cooperation, and found that Manella's

cooperation was "significant, useful, truthful, reliable, timely,

extensive, at risk of danger or injury to himself and his family,

and of substantial benefit to the Government." (R. 1-205 at 4.)

The Government recommended that Manella's sentence be reduced by

sixty months. The court granted a reduction of seven months.2

 In

determining the extent of the reduction granted, the court

considered factors listed in 18 U.S.C. § 3553(a)(1) and (2) (1994),

including "the nature and circumstances of the offense of

conviction and the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to

provide just punishment." (R. 1-205 at 5.) The court also

considered the leniency of the original sentence imposed.3

On appeal, Manella challenges the order granting a reduction

in his sentence, arguing that the court misapplied Rule 35(b) when
 4

18 U.S.C. § 3742 provides for limited appellate review of

"otherwise final sentence[s]." Only the portion of the statute

governing appeal by defendants is relevant here:

(a) Appeal by a defendant.—A defendant may file a

notice of appeal in the district court for review of an

otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect

application of the sentencing guidelines; or

(3) is greater than the sentence specified in the

applicable guideline range to the extent that the

sentence includes a greater fine or term of

imprisonment, probation, or supervised release

than the maximum established in the guideline

range, or includes a more limiting condition of

probation or supervised release under section

it considered factors other than his substantial assistance. In

its brief, the Government concedes, based on an unpublished opinion

of this court, that the district court misapplied Rule 35(b). At

oral argument, the Government invited the court to reject the

opinion as unpersuasive. See 11th Cir.R. 36-2 (unpublished

opinions are not binding authority, but are persuasive).

II. Discussion

A. Appealability

 We must first determine whether we have jurisdiction over

Manella's appeal, which is taken from an order granting him Rule

35(b) relief. Because we view a district court's ruling on a Rule

35(b) motion as falling within the common sense meaning of an

"otherwise final sentence," this court has held that appeals from

such rulings are governed by 18 U.S.C. § 3742 (1994). United

States v. Chavarria-Herrara, 15 F.3d 1033, 1034-36 (11th Cir.1994);

Yesil I, 991 F.2d at 1531 n. 4.4

 This statute provides for limited
3563(b)(6) or (b)(11) than the maximum established

in the guideline range; or

(4) was imposed for an offense for which there is

no sentencing guideline and is plainly

unreasonable....

On the issue of what statute governs the appealability

of rulings on Rule 35(b) motions, the circuits are split. 

Compare United States v. Arishi, 54 F.3d 596, 599 (9th

Cir.1995) (holding that appeals from Rule 35(b) rulings are

governed by 18 U.S.C. § 3742) and United States v. Pridgen,

64 F.3d 147, 149 (4th Cir.1995) (same) with United States v.

McAndrews, 12 F.3d 273, 277 (1st Cir.1993) (holding that

appeals from Rule 35(b) rulings are governed by 28 U.S.C. §

1291). See also United States v. Lee, 46 F.3d 674, 677 (7th

Cir.1995) (citing McAndrews for the proposition that the

court had jurisdiction over an appeal from an order refusing

to grant Rule 35(b) relief). 

review of federal sentences; review is only available for certain

claims by the defendant, and certain claims by the Government. A

district court's decision to grant or deny a Rule 35(b) motion is

a discretionary one from which an appeal generally will not lie

under § 3742. Yesil I, 991 F.2d at 1531. But Manella does not

challenge the merits of the district court's Rule 35(b)

determination. Instead, Manella claims that the court misapplied

Rule 35(b) by considering factors other than his substantial

assistance. Thus, Manella's claim is that his sentence was imposed

in violation of law. The sentence is appealable under §

3742(a)(1). See Chavarria-Herrara, 15 F.3d at 1034-35, 1037 (11th

Cir.1994) (holding that the Government could appeal a Rule 35(b)

determination under § 3742(b) where the Government's claim was that

the district court misapplied Rule 35(b)).

B. Rule 35(b)

 Because our exercise of jurisdiction is proper, we may

address the issue presented by this appeal: whether the district
 5

Rule 35 has the force and effect of a statute. United

States v. Cowan, 524 F.2d 504, 505 (5th Cir.1975), cert. denied

sub nom. Woodruff v. United States, 425 U.S. 971, 96 S.Ct. 2168,

48 L.Ed.2d 795 (1976) (citations omitted). Decisions of the

Fifth Circuit rendered prior to the close of business on

September 30, 1981 are binding precedent in this circuit. Bonner

v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981). 

court properly considered factors that militated against granting

a Rule 35(b) reduction in weighing the defendant's substantial

assistance. The application of law to sentencing issues is subject

to de novo review. United States v. Robinson, 935 F.2d 201, 205

(11th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116

L.Ed.2d 789 (1992).5

Rule 35(b) is the mechanism by which a district court may, on

the Government's motion, reduce a sentence to reflect substantial

assistance provided by the defendant to the Government after

sentencing. Our interpretation of Rule 35(b) begins with the

relevant portion of its text:

Reduction of Sentence for Changed Circumstances. The court,

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, in accordance with the guidelines and

policy statements issued by the Sentencing Commission pursuant

to section 994 of title 28, United States Code....

See Boca Ciega Hotel Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237

(11th Cir.1995) (stating that the interpretation of a statute

begins with its text).

In Chavarria-Herrara, we held that the district court

misapplied Rule 35(b) when it granted a reduction that was based in

part on factors other than the defendant's substantial assistance,

including the defendant's first-time offender status, relative
culpability, and good prison behavior. 15 F.3d at 1037; see

United States v. Aponte, 36 F.3d 1050, 1051 (11th Cir.1994)

(applying the rule from Chavarria-Herrara in the context of a

downward departure pursuant to 18 U.S.C. § 3553(e)). Our decision

in Chavarria-Herrara was grounded in the language of the rule:

"The plain language of Rule 35(b) indicates that the reduction

shall reflect the assistance of the defendant; it does not mention

any other factor that may be considered." 15 F.3d at 1037.

 Manella argues that, under Chavarria-Herrara, the defendant's

substantial assistance is the sole factor that the district court

may consider on a Rule 35(b) motion. He contends that the court

erred when it considered other factors that militated against a

reduction in his case. But the facts in Chavarria-Herrara are

distinguishable from this case. In Chavarria-Herrara, the district

court's reduction of a sentence was based on factors other than

cooperation. In Manella's case, the district court's refusal to

reduce a sentence by the requested amount was based on factors

other than cooperation. While relevant to our reading of Rule

35(b), Chavarria-Herrara does not control the issue presently

before us.

Manella also cites an unpublished opinion of this court in

support of his reading of Rule 35(b). This court is not bound by

its unpublished opinions, but they are persuasive authority. 11th

Cir.R. 36-2. In United States v. Yesil ("Yesil II"), as in

Manella's case, the case was remanded to a second district judge

for a Rule 35(b) evidentiary hearing. No. 93-2499, slip op. at 2-

3, 48 F.3d 534 (11th Cir. Feb. 8, 1995). At the Rule 35(b)
 6

Rule 35(b) was amended by the Comprehensive Crime Control

Act of 1986, Pub.L. No. 98-473 § 215(b), 98 Stat. 1837, 2015. 

Under former Rule 35(b), the district court enjoyed great

discretion in deciding whether to reduce a sentence. United

States v. Campbell, 711 F.2d 159, 160 (11th Cir.1983). In some

respects, the district court has less discretion under the

revised rule. For example, the former rule allowed the district

court to reduce a sentence within 120 days of its imposition,

even in the absence of motion from either party. Under the

hearing, the second judge concluded that the defendants' sentences

were "exceedingly lenient," and took this factor into account in

determining the extent of the substantial assistance reduction

granted. On appeal, we reversed and remanded with instructions for

the district court to consider only the defendants' substantial

assistance in making the Rule 35(b) determination. Id. at 4

(citing Chavarria-Herrara, 15 F.3d at 1037).

Manella is correct that he prevails if we adopt the holding in

Yesil II, but we decline to do so. A careful reading of Rule 35(b)

reveals that the text does not prohibit the consideration of any

factor other than the defendant's substantial assistance. The rule

states that "[t]he court ... may reduce a sentence to reflect a

defendant's subsequent, substantial assistance...." Under this

language, the only factor that may militate in favor of a Rule

35(b) reduction is the defendant's substantial assistance. Nothing

in the text of the rule purports to limit what factors may militate

against granting a Rule 35(b) reduction. Similarly, the rule does

not limit the factors that may militate in favor of granting a

smaller reduction.

The reading of Rule 35(b) urged by Manella is inconsistent

with the principle that the district court's decision to grant or

deny a Rule 35(b) motion is discretionary.6 It is true that under
revised rule, the district court may only reduce a sentence on

the Government's motion. Howard, 902 F.2d at 897. Still, even

after the 1986 amendment, the district court retains a great

degree of discretion in deciding whether to grant or deny the

Government's Rule 35(b) motion. Compare Aponte, 36 F.3d at 1052

(11th Cir.1994) (according the same interpretation to Rule 35(b)

and the statute authorizing substantial assistance departures at

sentencing) with United States v. Castellanos, 904 F.2d 1490,

1497 (11th Cir.1990) (concluding that the district court's

decision to grant or deny a substantial assistance departure at

sentencing is discretionary). 

 7

18 U.S.C. § 3553 reads in part:

(a) Factors to be considered in imposing a

sentence.—The court shall impose a sentence sufficient,

but not greater than necessary, to comply with the

purposes set forth in paragraph (2) of this subsection. 

The court, in determining the particular sentence to be

imposed, shall consider—

(1) the nature and circumstances of the offense

and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

the current rule, the exercise of that discretion is limited by the

requirement that the defendant be rewarded, if at all, only for

substantial assistance. Chavarria-Herrara, 15 F.3d at 1037. But

a reading of the rule that requires the district court to consider

substantial assistance in isolation from any other factor leaves

too little discretion for the court to exercise.

In this case, the district court weighed several factors

against Manella's substantial assistance, including the seriousness

of the offense and the need for the sentence imposed to promote

respect for the law and provide just punishment. The district

court's consideration of these factors was based on 18 U.S.C. §

3553, which lists factors that the court is required to consider

when imposing a sentence.7

 Rule 35(b) does not prohibit the
(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just

punishment for the offense;

(B) to afford adequate deterrence to criminal

conduct;

(C) to protect the public from further crimes of

the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical care,

or other correctional treatment in the most

effective manner; ... 

consideration of these factors in deciding to what extent a

defendant's sentence should be reduced for substantial assistance.

AFFIRMED.