1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3606

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Edward Earl Williams, *

*

Appellant. *

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Submitted: November 16, 2009

 Filed: December 30, 2009

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Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Edward Earl Williams appeals from the district court’s1

 order granting the

government’s motion for a 12-month sentence reduction. We dismiss for lack of

jurisdiction.
2

When a defendant provides “substantial assistance” to the government, a court

may reduce the defendant’s sentence upon request by the government. See Fed. R.

Crim. P. 35(b).

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I.

In 2003, Williams pled guilty to one count of conspiracy to distribute marijuana

in violation of 21 U.S.C. §§ 841 and 846, and was sentenced to 262 months

imprisonment. In 2004, Williams provided assistance to the government in an

unrelated case. Based on this assistance, Williams’s sentence was reduced to 130

months under Federal Rule of Criminal Procedure 35(b).2

 In 2007, Williams again

cooperated with the government by testifying in an unrelated murder trial. On April

9, 2008, William D. Massey, counsel for Williams, sent an email to Pat Harris, the

attorney for the government. Massey requested a sentence reduction for Williams that

adequately reflected the “magnitude of the assistance” Williams had provided the

government in the 2007 murder case. Massey advised Harris, “we trust your judgment

and will respect and appreciate your decision.” On October 2, 2008, Harris responded

and indicated that if Massey did not pursue a higher reduction, the government would

move for a 12-month sentence reduction. Harris noted that Williams “got a very

generous reduction” for his assistance in 2004. 

On October 10, 2008, the government moved for the 12-month sentence

reduction pursuant to Federal Rule of Criminal Procedure 35(b). Attached to this

motion was a certificate of service indicating that on October 10, 2008, the motion had

been mailed to Massey. On October 14, 2008, Massey sent Williams a letter advising

him of the government’s decision to request the 12-month reduction, stating, “As the

decision about whether to file the Rule 35 in the first place is solely the

[government’s], it appears we don’t have a lot of choice. I want your thoughts though.

Please either call or write.” The record does not reflect any response from Williams.

On October 20, 2008, the district court granted the government’s motion—without a
3

Notably, the record belies Williams’s claim that he did not have an opportunity

to be heard. The record is replete with evidence that both Williams and Massey were

fully informed that the government would, and did, request a 12-month reduction.

The evidence includes: (1) the April 9, 2008, and October 2, 2008, email exchanges

between Harris and Massey that referenced the sentence reduction, (2) the October 14,

2008, letter from Massey informing Williams of the government’s decision to seek a

12-month reduction, and (3) the certificate of service for the government’s Rule 35(b)

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hearing—and reduced Williams’s sentence by 12 months. Massey’s office informed

Williams of the district court’s order in a letter dated October 22, 2008. Williams

brings this appeal. 

II.

On appeal, Williams contends that the district court imposed the 12-month

sentence reduction in violation of law because (1) he was denied an opportunity to be

heard in response to the government’s Rule 35(b) motion, and (2) the district court’s

sentence reduction did not adequately reflect the substantial assistance he provided to

the government. This court is without jurisdiction to review Rule 35(b) sentences

unless one of four criteria are met under 18 U.S.C. § 3742(a). United States v.

Haskins, 479 F.3d 955, 957 (8th Cir. 2007) (per curiam) (holding that jurisdiction over

an appeal of a Rule 35(b) sentence is governed by 18 U.S.C. § 3742(a), not the general

grant of jurisdiction under 28 U.S.C. § 1291). These four criteria are: (1) the sentence

was imposed in violation of law, (2) the sentence was imposed using an incorrect

application of the sentencing guidelines, (3) the sentence is greater than the applicable

guidelines range, or (4) the sentence is imposed for an offense without a sentencing

guideline and is plainly unreasonable. 18 U.S.C. § 3742(a)(1)-(4). 

Williams only argues one of these four criteria—that the sentence was imposed

in violation of law. However, Williams’s claims that the reduction was imposed in

violation of law are without merit. This court has never held that a Rule 35(b)

defendant has the right to an opportunity to be heard.3

 Additionally, “[a]bsent an
motion indicating that Massey had, in fact, been served with the motion on October

10, 2008—10 days prior to the issuance of the district court’s order. Despite all of this

notice, the record does not reflect that either Williams or Massey sought to file a

response or requested an evidentiary hearing on the matter. 

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unconstitutional motive, the extent to which a district court exercises its discretionary

authority to depart downward is not subject to review.” United States v. Sykes, 356

F.3d 863, 865 (8th Cir. 2004) (holding that a defendant’s claim that the district court

should have further reduced his sentence based on the government’s rule 35(b) motion

was unreviewable). Because Williams’s claims do not satisfy any of the criteria listed

in 18 U.S.C. § 3742(a), we conclude that they are unreviewable by this court. See

United States v. Coppedge, 135 F.3d 598, 599 (8th Cir. 1998) (per curiam)

(determining that a challenge to the extent of a sentence reduction upon the

government’s Rule 35(b) motion was unreviewable because the appeal was not based

on any criteria listed in § 3742(a)).

III.

Accordingly, we dismiss this appeal for lack of jurisdiction.

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