[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-14626

Non-Argument Calendar

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D.C. Docket No. 1:10-cr-505-SCJ-ECS-1

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

TERRY TYRONE HARDMAN,

a.k.a. Terry Hardman,

Defendant–Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(March 6, 2015)

Before MARCUS, WILLIAM PRYOR, and DUBINA, Circuit Judges.

PER CURIAM:

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Appellant Terry Hardman pleaded guilty to conspiring to possess five 

kilograms of cocaine with the intent to distribute and was initially sentenced to 235 

months’ imprisonment. After sentencing, he provided substantial assistance to the 

government, so the government twice requested modifications of his sentence 

under Federal Rule of Criminal Procedure 35(b). The district court granted both 

requests, ultimately reducing Hardman’s sentence to 188 months. In ruling on the

second Rule 35(b) motion, the court denied Hardman’s request for an additional 

20-month reduction. Hardman now appeals, contending that the court’s sentence 

modification was procedurally unreasonable. After reviewing the record and 

considering the parties’ briefs, we affirm.

I.

Hardman pleaded guilty to conspiring to possess five kilograms of cocaine 

with the intent to distribute. At sentencing, the district court determined that his

Sentencing Guidelines range was 262 to 327 months with a statutory minimum of 

240 months. But after granting the government’s U.S.S.G. § 5K1.1 and 18 U.S.C. 

§ 3553(e) motion for a downward departure based on substantial assistance, the 

court sentenced Hardman to 235 months’ imprisonment, the bottom of his adjusted 

Guidelines range. Hardman did not file a direct appeal, but he did continue to 

assist the government.

Seventeen months later, the government moved for a 12-month reduction in 

Hardman’s sentence under Rule 35(b), which allows the government to file a

postsentencing motion requesting that the sentence of a defendant who has 

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provided substantial assistance be reduced.

1

 The district court granted this motion, 

reducing Hardman’s sentence from 235 months to 223 months.

A few months later, the government requested an additional 35-month 

reduction in Hardman’s sentence, which would bring it down to 188 months. In 

response, Hardman urged the district court to not only grant the government’s 

second Rule 35(b) motion but also to go further and reduce his sentence to 168 

months. In his view, an additional 20-month reduction was warranted for three 

reasons: (1) the government’s motion did not count all of his cooperation; (2) his 

cooperation had placed himself and his family in danger; and (3) this reduction 

would place his sentence in line with that of a coconspirator who had been 

convicted as a result of his postconviction assistance. 

At the hearing on the second Rule 35(b) motion, the government argued that 

the cumulative 74-month reduction that it sought accurately reflected the degree of 

Hardman’s assistance.2

 The government also explained why Hardman and his 

coconspirator were not similarly situated. Although their offense conduct and 

criminal history category were the same, Hardman had received a two-level 

enhancement for possession of a firearm and had five qualifying prior convictions 

under 21 U.S.C. § 851 compared to one by his coconspirator. The government 

thus concluded that a further reduction was unwarranted. 

 1 Although such motions must generally be made “within one year of sentencing,” the 

government may move for a reduction beyond this period under certain circumstances. See Fed. 

R. Crim. P. 35(b)(1)–(2).

2 This figure represents the difference between a sentence of 262 months (the bottom of 

Hardman’s initial Guidelines range) and 188 months (the term requested by the government in its 

second Rule 35(b) motion). 

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 Hardman supported his further-reduction request by emphasizing that he 

had always provided the government with truthful information even if all of it did 

not constitute “substantial assistance.” Additionally, both he and his mother told 

the district court about the danger that his family was in because of his 

cooperation, pointing to specific incidents that they believed were acts of 

retaliation. Lastly, he noted that four of his prior convictions involved relatively 

small quantities of drugs (i.e., a few grams) and one was for robbery, but his 

coconspirator’s prior conviction was for involuntary manslaughter. Hardman thus 

concluded that when viewed holistically, their histories were similar enough to 

justify reducing his sentence to 168 months, the sentence his coconspirator 

received.

After having the benefit of oral argument and considering the sentencing 

factors in 18 U.S.C. § 3553(a) and the factors in Guideline § 5K1.1, the district 

court granted the government’s second Rule 35(b) motion and declined Hardman’s 

request for an additional reduction. Hardman’s sentence was reduced to 188 

months. This appeal timely followed.

Once Hardman filed his opening brief, the government moved to dismiss 

based on the appeal waiver in his plea agreement. We denied the motion, holding 

that this provision did not waive his right to appeal a Rule 35(b) sentence 

modification. With briefing now complete, this appeal is ripe for review.

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II.

Before reaching the merits of Hardman’s appeal, we must first address our 

jurisdiction. See United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). 

“Section 3742 establishes ‘a limited practice of appellate review of sentences in the 

Federal criminal justice system.’ S. Rep. No. 225, 98th Cong., 2d Sess. 149 

(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3332.” United States v. ChavarriaHerrara, 15 F.3d 1033, 1035 (11th Cir. 1994). This statute permits appellate 

review of “an otherwise final sentence,” 18 U.S.C. § 3742, and we have held that 

because rulings on Rule 35(b) motions fall within the commonsense meaning of 

this phrase, they are appealable in accordance with § 3742, Chavarria-Herrara, 15 

F.3d at 1034–35. Even so, we have noted that “[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” because this statute does not permit challenges to the 

merits of the decision or the extent of the reduction. United States v. Manella, 86 

F.3d 201, 203 (11th Cir. 1996). At the same time, we have recognized that 

appellate jurisdiction exists where the appellant challenges the district court’s 

application of Rule 35(b) because doing so calls into question whether the 

modification was imposed in violation of law. Id.

Here, Hardman claims that his sentence was modified in violation of law,

specifically that the district court’s ruling on the second Rule 35(b) motion was 

procedurally unreasonable; he thus concludes that jurisdiction lies under 

§ 3742(a)(1). The government responds that we lack jurisdiction. The gist of its 

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argument is that binding circuit precedent forecloses Hardman’s allegations of 

error and thus jurisdiction does not lie over his appeal. We disagree.

The government’s argument conflates a lack of merit with a lack of 

jurisdiction. At bottom, whether we have subject-matter jurisdiction is a question 

of our constitutional or statutory power to hear Hardman’s appeal rather than the 

merit of his appeal. See e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 

89, 118 S. Ct. 1003, 1010 (1998). Of course, this rule is not ironclad. For 

example, federal courts may dismiss for lack of subject-matter jurisdiction “when 

the claim is so insubstantial, implausible, foreclosed by prior decisions of [the 

Supreme] Court, or otherwise completely devoid of merit as not to involve a 

federal controversy.” Id. (quoting Oneida Indian Nation of N.Y. v. County of 

Oneida, 414 U.S. 661, 666, 94 S. Ct. 772, 777 (1974)) (internal quotation marks 

omitted). But even if our precedent forecloses Hardman’s allegations that the

district court modified his sentence in violation of the law—a conclusion about the 

merits of his appeal—his allegations come nowhere close to falling within this

narrow exception. Put simply, to decide whether Hardman’s “sentence was 

‘imposed in violation of law,’ we must address the merits.” United States v. 

Lightfoot, 724 F.3d 593, 595 (5th Cir. 2013). Our conclusion that jurisdiction 

exists is consistent with not only our precedent, see Manella, 86 F.3d at 203; 

Chavarria-Herrara, 15 F.3d at 1034–35, 1037, but also that of our sister circuits, 

see Lightfoot, 724 F.3d at 595 & n.6 (finding jurisdiction under similar 

circumstances and collecting cases from our circuit as well as the First, Fourth, 

Seventh and Ninth Circuits).

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III.

Turning to the merits, we review whether the district court imposed a 

sentence in violation of law de novo. Manella, 86 F.3d at 202–03.3

 Hardman 

contends that the district court’s ruling on the second Rule 35(b) motion was 

procedurally unreasonable, and thus imposed in violation of law, in three ways.4

 

We consider each contention in turn.

A.

Hardman contends that the district court erred by failing to consider the 

sentencing factors in § 3553(a), specifically subsection (a)(6)’s requirement that 

courts avoid unwarranted “sentence disparities among defendants with similar 

records who have been found guilty of similar conduct.” In his view, the district 

court violated this requirement by rejecting his request to have his sentence 

reduced to 168 months, the sentence imposed on his coconspirator. This 

contention is unavailing.

 3 Hardman contends that we review the district court’s Rule 35(b) ruling for 

reasonableness in the wake of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). See 

Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007) (“Our explanation of 

‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse-ofdiscretion standard of review now applies to appellate review of sentencing decisions.”). This 

contention is incorrect. Neither Booker nor any post-Booker binding precedent has changed the 

standard of review that applies to sentence modifications under Rule 35(b). Thus, we remain 

bound by Manella under the prior-panel-precedent rule. See United States v. Patron, 749 F.3d 

1329, 1331 (11th Cir. 2014) (discussing narrowness of our circuit’s prior-panel-precedent rule).

4 The parties dispute whether Hardman properly preserved his objection, and each 

contends that we should apply a different standard of review. We need not resolve this dispute, 

however, because we conclude that Hardman’s arguments are meritless under even de novo 

review.

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To be sure, “Rule 35(b) does not prohibit the consideration of [the § 

3553(a)] factors in deciding to what extent a defendant’s sentence should be 

reduced for substantial assistance.” Manella, 86 F.3d at 205. So in ruling on a 

Rule 35(b) motion, a district court does not err by considering these factors to 

decide the extent of the warranted reduction. Id. But our caselaw is clear: “the 

only factor that may militate in favor of a Rule 35(b) reduction is the defendant’s 

substantial assistance.” Id. at 204. Thus, the district court was not required to 

consider the need to avoid unwarranted sentencing disparities.

Even more importantly, Manella teaches that the district court would have 

committed reversible error—imposed a sentence modification in violation of law—

had it reduced Hardman’s sentence an additional 20 months based on any factor 

other than his substantial assistance. This is true regardless of whether Hardman is 

correct that he and his coconspirator are so similarly situated that the 20-month 

difference in their sentences constitutes an unwarranted disparity under 

§ 3553(a)(6). Accordingly, we conclude that the district court did not err by 

refusing to grant an additional 20-month reduction for the sole purpose of 

remedying the putative unwarranted sentence disparity between him and his 

coconspirator.

B.

Hardman contends that the district court committed procedural error by not 

considering his nonfrivolous “mitigating arguments” or “mitigating factors”: his 

additional, truthful assistance and the risk of danger to himself and family resulting 

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from his cooperation. In short, he claims that the district court must consider the 

factors in Guideline 5K1.1 when deciding the extent of a Rule 35(b) reduction 

because the distinction between substantial-assistance reductions under § 5K1.1

(and 18 U.S.C. § 3553(a))5 and those under Rule 35(b) is one of timing rather than 

substance. See United States v. Orozco, 160 F.3d 1309, 1313 (11th Cir. 1998) 

(“[W]e have clarified the ‘temporal framework’ involved with the government’s 

acknowledging a convicted defendant’s substantial assistance prior to sentencing 

in a section 5K1.1 motion at sentencing and the government’s rewarding a 

convicted defendant’s substantial assistance to the government after sentencing 

with a Rule 35(b) motion.”).

Hardman’s contention is belied by the record. During the hearing on the 

second Rule 35(b) motion, the district court specifically noted that the danger 

inherent in the assistance Hardman provided was an important consideration and 

that the extent of his reduction accounted for that danger and his assistance. We 

thus conclude that the district court did not commit a procedural error in granting 

the government’s request for a sentence modification under Rule 35(b).

C.

Finally, Hardman contends that the district court failed to adequately explain 

its reasons for the reduction he received, specifically why it rejected his 

nonfrivolous mitigating arguments. Essentially, he asserts that the court failed to 

 5 Section 5K1.1 permits the district court to grant a substantial-assistance departure from 

only the Sentencing Guidelines; thus, the government must also file a motion under 18 U.S.C. 

§ 3553(e) to request a departure from a statutory-minimum sentence, as it did in this case.

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comply with § 3553(c) and the Supreme Court’s guidance on the need for reasoned 

explanations in sentencing decisions. See Rita v. United States, 551 U.S. 338, 

356–57, 127 S. Ct. 2456, 2468 (2007). We conclude from the record, however, 

that this contention is without merit. Thus, assuming arguendo that § 3553(c) 

applies to Rule 35(b) rulings, we hold that the district court did not commit 

procedural error in modifying Hardman’s sentence.

IV.

Having carefully considered the record and the parties’ briefs, we conclude 

that Hardman’s allegations of procedural error lack merit. Accordingly, we affirm 

the district court’s sentencing modification, reducing Hardman’s sentence to 188 

months, and Hardman’s sentence.

AFFIRMED.

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