*

The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida,

sitting by designation. 

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0358p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

CLARENCE PARKER,

 Defendant-Appellant.

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No. 06-4506

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 04-00140—Thomas M. Rose, District Judge.

Submitted: September 18, 2008

Decided and Filed: October 3, 2008 

Before: CLAY and GRIFFIN, Circuit Judges; STAFFORD, District Judge.*

_________________

COUNSEL

ON BRIEF: Salvatore C. Adamo, LAW OFFICE OF SALVATORE C. ADAMO, Phillipsburg,

New Jersey, for Appellant. Anne H. Fehrman, ASSISTANT UNITED STATES ATTORNEY,

Dayton, Ohio, for Appellee. 

_________________

OPINION _________________

STAFFORD, District Judge. The defendant-appellant, Clarence Parker, appeals from the

reduced sentence imposed by the district court on the government’s Rule 35(b) motion to reduce

sentence based on Parker’s substantial assistance. Parker maintains that the district court failed to

take into consideration certain factors that would purportedly warrant an additional downward

departure. We DISMISS the appeal for lack of appellate jurisdiction under 18 U.S.C. § 3742(a).

BACKGROUND

The facts are not in dispute. Briefly, Parker was a member of large-scale powder and crack

cocaine distribution and money laundering organization based in Dayton, Ohio. In 2004, he was

charged with (1) conspiracy to distribute and to possess with the intent to distribute in excess of 150

1
No. 06-4506 United States v. Parker Page 2

kilograms of cocaine, and (2) conspiracy to launder money. Parker pleaded guilty to the two

charges, knowing that the statutory maximum sentence was life imprisonment, the statutory

mandatory minimum sentence was 10 years, and the applicable advisory guidelines range was 135

to 168 months. The district court sentenced Parker to the mandatory minimum sentence of 120

months.

A year after Parker was sentenced, the government filed a motion to reduce Parker’s sentence

pursuant to Rule 35(b). Based on that motion, Parker was re-sentenced to 60 months in prison on

both counts to run concurrently. Parker thereafter filed this timely appeal.

DISCUSSION

Citing 18 U.S.C. § 3742(a), the government contends that Parker’s appeal should be

dismissed for lack of jurisdiction. Section 3742(a) provides that a defendant may appeal 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; (3) is greater than the sentence

specified in the applicable guideline range; or (4) was imposed for an offense for which there is no

sentencing guideline and is plainly unreasonable.

In United States v. Moran, 325 F.3d 790 (6th Cir. 2003), this court held that, because a

district court’s ruling on a Rule 35(b) motion falls within the plain meaning of an “otherwise final

sentence,” appeal of such ruling is governed by section 3742(a). Id. at 792. At least eight other

circuit courts have likewise concluded that section 3742(a) governs appellate review of a district

court's reduction of sentence pursuant to Rule 35(b). United States v. McGee, 508 F.3d 442, 445

(7th Cir. 2007); United States v. Haskins, 479 F.3d 955, 957 (8th Cir. 2007); United States v.

McKnight, 448 F.3d 237, 238 (3d Cir. 2006); United States v. McMillan, 106 F.3d 322, 324 n.4 (10th

Cir. 1997); United States v. Doe, 93 F.3d 67, 69 (2d Cir. 1996); United States v. Pridgen, 64 F.3d

147, 149-50 (4th Cir. 1995); United States v. Arishi, 54 F.3d 596, 597-98 (9th Cir. 1995); United

States v. Chavarria-Herrara, 15 F.3d 1033, 1035-36 (11th Cir. 1994). Four of those circuits—the

Third, Seventh, Eighth and Eleventh—have considered the issue since the Supreme Court decided

United States v. Booker, 543 U.S. 220 (2005), concluding (with little discussion) that Booker did not

expand the situations in which a defendant may appeal a sentence under 18 U.S.C. § 3742(a).

McGee, 508 F.3d at 445; Haskins, 479 F.3d at 957; McKnight, 448 F.3d at 238; United States v.

Ross, 280 F. App’x 896, 897 (11th Cir. 2008).

In Booker, having rendered the Sentencing Guidelines advisory only, the Supreme Court

replaced the prior standard of appellate review—articulated in 18 U.S.C. § 3742(e)—with review

for unreasonableness. The Court explained that, while its decision required the excision of section

3742(e) from the Sentencing Reform Act (“Act”), other sections of the Act—namely, sections

3742(a) and (b), providing for sentencing appeals by the defendant and by the government

respectively—“continue[] to provide for appeals from sentencing decisions . . . .” Booker, 543 U.S.

at 260. Because Booker left intact sections 3742(a) and (b), appellate courts have the same

jurisdiction to review sentences post-Booker as they had before Booker was decided.

In this case, Parker contends that the district court’s decision to reduce his sentence to 60

months was unreasonable, the court having purportedly failed to take into consideration Parker’s

peripheral role in the conspiracies, his age, and/or his employment history. Because 18 U.S.C.

§ 3742(a) governs this appeal, and because Parker has not raised any colorable claim that his appeal

falls within the narrow jurisdictional parameters set out in section 3742(a), this court lacks

jurisdiction to review the district court’s judgment reducing Parker’s sentence under Rule 35(b).

Accordingly, we DISMISS Parker’s appeal of his reduced sentence.