In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1226

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHAVIS WEBSTER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 09-CR-112—Barbara B. Crabb, Judge.

ARGUED SEPTEMBER 9, 2011—DECIDED JANUARY 19, 2012

Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge. 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
2 No. 11-1226

 This was a downward departure from his advisory guide- 1

lines range of 235-240, which was calculated according to his

offense level, 33, and his qualification as a career offender.

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 1

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
No. 11-1226 3

States v. McGee, 508 F.3d 442, 444 (7th Cir. 2007)); see also

18 U.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 mandate . . . 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 . . . .”).

I.

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 government 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.
4 No. 11-1226

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.
No. 11-1226 5

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.

II.

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
6 No. 11-1226

This is an argument we approach with some trepidation 2

here, as shown above, it is far from clear that the defendant

in fact made such a request.

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

create a “triple anomaly.” Id. at 745 (“It would create

arbitrary distinctions between similarly situated defendants; it would create the equivalent of a judge-administered parole system . . .; and it would impair the objective of Rule 35(b), which . . . is to assist law enforcement.”).

The direction of Shelby is clear and controls this case.

It is also the rule in other circuits. United States v. Ross,

280 Fed. Appx. 896, 897-98 (11th Cir. 2008); United States

v. Doe, 351 F.3d 929, 933 (9th Cir. 2003). Contrary to the

defendant’s assertion, the district court was not required

to consider the § 3553(a) factors. Instead, in conformance

with the purpose of the rule, the district court based

its decision on its evaluation of the defendant’s

assistance and granted a reduction consistent with that

determination. See Hr’g Tr. 4.

The defendant relies on our decision in United States

v. Chapman, 532 F.3d 625 (7th Cir. 2008), to argue that

once a district court grants a Rule 35(b) motion, but

deviates upward from the requested reduction, it must

base its eventual sentence on § 3553(a) factors. The 2

defendant misreads Chapman. In that case we expressly
No. 11-1226 7

reserved the question of “whether . . . a district court

[is] required to consider the section 3553 factors[.]” Chapman, 532 F.3d at 630 (emphasis in original). Further,

Chapman cannot provide much help to the defendant

because Chapman involved different facts. In that case,

the government offered a recommendation of a twolevel offense reduction with a sentence at the bottom end

of the resulting guideline range, 84 months. Id. at 632.

Defense counsel agreed with this request. Id. The district

court applied the two-level reduction but sentenced

defendant to 102 months at the higher end of the

resulting guideline range in light of defendant’s significant criminal history. Id. The district court first

accepted the purported value of the defendant’s

assistance and then considered the § 3553(a) factors to

determine if the resulting sentence was unjust. Here, the

government made no sentencing recommendation.

Because the parties did not agree on a recommended

reduction, the district’s court appears to have arrived at

the 168-month sentence by examining the value of the

Webster’s assistance.

So to clarify: Shelby stands for the notion that a district

court hearing a Rule 35(b) motion may not use the § 3553(a)

factors to further reduce the defendant’s sentence once

the value of his assistance has been assessed. To allow

otherwise would disturb the underlying original sentence, rather than merely subtract the value of the assistance provided. Chapman gives district courts the option

of using the § 3553(a) factors to determine if granting the

full sentence reduction agreed upon by the two parties

would result in an unjust sentence. In the present case,
8 No. 11-1226

the government did not agree to a specific reduction,

and indeed, the defendant did not propose a specific

reduction. If we adopted Webster’s position, a request

for as large a reduction as possible would always trigger

a review of the § 3553(a) factors. We see no reason to

endorse such an approach.

In short, by arguing that the district was required to

take the § 3553(a) factors into account when deciding

by how much to reduce his sentence, the defendant

seeks a full re-examination of his sentence. This is contrary to the language and purpose of Rule 35(b), as interpreted in Shelby and we therefore must reject the

argument.

The defendant failed to request a reduced sentence at

the hearing and therefore is unable to argue that the

court erred by deviating from a requested reduction. In

any event, because Rule 35(b) hearings are not an opportunity for a full resentencing, the district court cannot

consider factors other than the defendant’s substantial

assistance in deciding by how much to reduce the defendant’s sentence if the reduction is less than the request. It was therefore not erroneous for the district

court to fail to consider the § 3553(a) factors in reducing

the defendant’s sentence. For these reasons, the judgment of the district court is AFFIRMED.

1-19-12