In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-3637 & 07-3639

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARRYL W. CHAPMAN and JOHN FRANK,

also known as JACK FRANK,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Western District of Wisconsin.

Nos. 06 CR 9 and 06 CR 65—John C. Shabaz, Judge.

____________

ARGUED MAY 28, 2008—DECIDED July 10, 2008

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD,

Circuit Judges.

RIPPLE, Circuit Judge. Darryl Chapman and John Frank

each were convicted and sentenced for unrelated drug

crimes. While serving their sentences, both men independently provided substantial assistance to the Government. Accordingly, the Government filed motions to

reduce their otherwise final sentences under Federal

Rule of Criminal Procedure 35(b). The district court

granted the Government’s motions, reducing Mr. Chapman’s sentence from 120 to 102 months and Mr. Frank’s
2 Nos. 07-3637 & 07-3639

sentence from 84 to 72 months. On appeal, the defendants

contend that the district court failed to consider properly

their arguments for greater sentence reductions. For the

reasons set forth in this opinion, we affirm the judgment

of the district court.

I

BACKGROUND

Darryl Chapman and John Frank each pleaded guilty to

unrelated charges of knowingly and intentionally distributing cocaine in violation of 21 U.S.C. § 841(a)(1). On

April 19, 2006, the district court sentenced Mr. Chapman to

120 months’ imprisonment. On September 13, 2006, the

district court sentenced Mr. Frank to 84 months’ imprisonment. Both of these sentences were within the applicable

sentencing guidelines range, but both were at the higher

end of their respective ranges.

After they were sentenced, both defendants independently gave substantial assistance to the Government. At

great risk to the safety of his family and himself, Mr.

Chapman gave law enforcement officers the name of his

former cocaine source. His cooperation resulted in the

apprehension and conviction of a major source of marijuana and cocaine distribution in the area. Mr. Frank also

named his drug source, and that information assisted in

the conviction of three other individuals. In return for

this assistance, the Government filed a motion to request

a reduction in their sentences under Rule 35(b).

At Mr. Chapman’s hearing before the district court, both

the Government and Mr. Chapman’s counsel noted the

timeliness, truthfulness, completeness and reliability of
Nos. 07-3637 & 07-3639 3

his assistance, as well as the fact that Mr. Chapman had

been threatened in prison because of his cooperation. In

light of these circumstances, the Government requested

that the court reduce Mr. Chapman’s offense level by two

levels and then impose a sentence at the bottom of the

resulting guidelines range—specifically, 84 months. Mr.

Chapman agreed with this recommendation.

The district court granted the Government’s motion and

reduced Mr. Chapman’s offense level by two levels;

however, it imposed a sentence of 102 months, a sentence at the high end of the guidelines range. The court

remarked that Mr. Chapman’s significant criminal history

counseled against imposing a lower sentence, and it

stated that a sentence of 102 months “will still hold this

defendant accountable for his criminal conduct while

factoring in his substantial assistance.” Chapman Tr. at 7-8.

Similarly, at Mr. Frank’s hearing, the Government and

the defense counsel requested that the court reduce Mr.

Frank’s sentence based upon his significant assistance. The

Government did not propose a particular reduction, but

Mr. Frank suggested a five-level reduction. The court

granted the Government’s motion and decided to reduce

Mr. Frank’s offense level by one level. It sentenced Mr.

Chapman to 72 months’ imprisonment, a sentence at the

high end of the new guidelines range. Much like it did in

Mr. Chapman’s case, the court emphasized Mr. Frank’s

significant prior criminal history as well as the substantial

quantity of drugs that had been involved in his crime. The

court stated that 72 months’ imprisonment will “hold

this defendant accountable for his criminal conduct

while factoring in his substantial assistance.” Frank Tr. at 8.
4 Nos. 07-3637 & 07-3639

1 See also United States v. McDowell, 117 F.3d 974, 978 (7th Cir.

1997) (“We thus lack jurisdiction to hear McDowell’s claim

that the district court abused its discretion by granting a

reduction too paltry to reflect the value of his post-sentencing

assistance to the government.”); 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. Sykes, 356 F.3d

863, 865 (8th Cir. 2004).

II

DISCUSSION

A.

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. McGee,

508 F.3d 442, 444 (7th Cir. 2007); see also 18 U.S.C. § 3742(a).

Section 3742 does not grant appellate courts jurisdiction

to review a district court’s exercise of its discretion

under Rule 35(b). See McGee, 508 F.3d at 444-45 (“[O]ur

jurisdictional mandate is limited and does not extend to

a district court’s discretionary decisions regarding sentencing.”).1

 Accordingly, our review of a sentence reduction here is more limited than our review of an original

sentence. We ask only whether the reduction was imposed

in violation of the law, not whether the new sentence

imposed was reasonable. See id. at 445.

The Government characterizes the defendants’ claims

as mere complaints that the district court did not exercise

its discretion to reduce their sentences to the extent they

had hoped. In the Government’s view, the defendants’

arguments do not amount to an allegation that they

were sentenced “in violation of law”; therefore, in its
Nos. 07-3637 & 07-3639 5

view, we do not have jurisdiction to consider their

claims under section 3742.

If the defendants’ arguments could be reduced to the

simple claim that the district court, after considering the

appropriate factors, should have granted a greater reduction, then appellate review indeed would be impermissible here. We cannot accept, however, the Government’s characterization of the defendants’ arguments. As

we understand their arguments, Mr. Chapman and

Mr. Frank do not simply contend that the district court

should have reduced further their sentences. Instead,

they submit that the district court, in determining the

proper sentence, considered factors that it should not

have considered (i.e., factors already considered at the

original sentencing), and failed to consider factors that it

should have considered (i.e., the disparity between the

defendants’ reduction and reductions granted to other

defendants who had given similar levels of assistance to

the Government, and, in Mr. Chapman’s case, the fact

that both the Government and the defendant agreed on a

suggested sentence of 84 months). We suggested in

McDowell that an assertion of this type of methodological

error “alleges an error of law subject to our jurisdiction

under section 3742(a).” 117 F.3d at 978; see also United

States v. Doe, 351 F.3d 929, 932 (9th Cir. 2003) (holding

that the appellate court did have jurisdiction under section

3742 to review whether the district court’s consideration

of factors other than substantial assistance in denying

the Government’s Rule 35(b) motion was improper); United

States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996) (same).

Consequently, we have jurisdiction to consider the defendants’ legal claims.
6 Nos. 07-3637 & 07-3639

B.

The defendants submit that the district court imposed

their sentences “in violation of law,” 18 U.S.C. § 3742(a),

for three reasons. First, they contend that the district

court focused improperly upon their criminal histories

and the nature of their crimes, factors already considered

at their original sentencing. Second, they contend that

the district court improperly failed to consider their

arguments regarding the potential for unwarranted

sentencing disparities. Third, Mr. Chapman suggests that

the district court’s dismissal of the Government’s request

for a sentence of 84 months, without explanation, was

unwarranted. We shall consider each of these arguments

in turn.

1.

To the extent that the defendants contend that the district court’s consideration of their criminal histories and

the nature of their crimes was improper because those

factors already had been considered at the initial sentencing hearing, we have jurisdiction to consider their

claim. The substantive argument made here was made in

the Ninth Circuit case of Doe, 351 F.3d at 932, and in an

Eleventh Circuit case relied upon by the defendants,

Manella, 86 F.3d at 203-05, although it ultimately

was rejected by both courts. The Ninth Circuit in Doe

held that a court may look to the section 3553 factors in

imposing a new sentence under Rule 35(b), even though

those factors already had been considered at the original sentencing hearing. Doe, 351 F.3d at 932. Similarly,

the Eleventh Circuit held that Rule 35(b) does not prohibit consideration of the section 3553 factors, including
Nos. 07-3637 & 07-3639 7

the seriousness of a defendant’s offense, in deciding the

extent to which a defendant’s sentence should be reduced for substantial assistance. Manella, 86 F.3d at 204-05.

The reasoning of these decisions is persuasive. Nothing

in the text of Rule 35(b) limits the factors that may

militate against granting a sentence reduction or for

granting a smaller reduction than requested. The defendants do not provide any persuasive reasons for restricting the court’s consideration to factors not considered at the original sentencing hearing. On the other

hand, a faithful and pragmatic adherence to the mandate

of 18 U.S.C. § 3553(a) counsels that the nature and extent

of any reduction be determined in light of all the sentencing factors set forth in the statute. Post-arrest cooperation cannot be assessed in a vacuum. Whether such cooperation represents an opportunistic attempt to obtain a

sentence reduction or a genuine alteration in the defendant’s life perspective can best be determined by assessing

that cooperation in light of earlier criminal history and

the nature of the crime for which the defendant is presently being sentenced. Accordingly, we conclude that

the district court did not act in violation of the law when

it considered the defendants’ prior criminal histories and

the seriousness of their offenses in determining the

extent of the reductions granted under Rule 35(b).

At oral argument, defense counsel appeared to concede

that the district court was permitted to consider the

defendants’ prior criminal histories and the nature of

their offenses; instead, he objected only to the excessive

weight that was given to these factors. To the extent that

the defendants object to the manner in which the district

court chose to exercise its discretion, however, we do not

have jurisdiction to review their claims. See McGee, 508

F.3d at 444-45; McDowell, 117 F.3d at 978.
8 Nos. 07-3637 & 07-3639

2.

The defendants next object to the district court’s alleged

refusal to consider their non-frivolous arguments in

favor of greater sentence reductions. At their hearings

before the district court, both Mr. Chapman and Mr. Frank

emphasized that the amount of assistance that they had

provided to the Government was greater than the typical

case of assistance, which often results in a one- or two-level

reduction. The defendants also referenced other cases

in which courts had reduced a defendant’s sentence by

more than thirty percent for providing substantial assistance, and they suggested that a greater reduction

would prevent unwarranted sentencing disparity among

like defendants—a factor to be considered under 18

U.S.C. § 3553.

In its explanation of the sentences it imposed, the district court did not address explicitly the defendants’

contention that their assistance to the Government had

been exceptional; nor did it mention the concern of potential sentencing disparities. The court simply noted that a

specific reduction in the defendants’ offense level (two

levels for Mr. Chapman, one level for Mr. Frank) was

appropriate because they had provided the Government with substantial assistance; however, it emphasized that this assistance did not wash away the

defendants’ criminal histories and conduct. Chapman Tr.

at 6-7; Frank Tr. at 8. The court concluded that a sentence at the higher end of the resulting guidelines range

was necessary to account properly for these important

factors. Chapman Tr. at 6-7; Frank Tr. at 8. In both cases,

it stated that the sentence it imposed was “reasonable,

responsible, relevant, and necessary to accomplish these

purposes as set forth in 18 United States Code Section
Nos. 07-3637 & 07-3639 9

2 See also United States v. Miranda, 505 F.3d 785, 792 (7th Cir.

2007); United States v. Acosta, 474 F.3d 999, 1003-04 (7th Cir.

2007).

3553(a). Such a sentence will still hold this defendant

accountable for his criminal conduct while factoring in

his substantial assistance.” Chapman Tr. at 7-8; Frank Tr. at

8 (identical statements).

a.

We first address the defendants’ contention that the

district court committed legal error by failing to consider

the potential for sentencing disparities among similarly situated defendants. Relying on Rita v. United

States, 127 S. Ct. 2456, 2468 (2007), and United States v.

Cunningham, 429 F.3d 673, 676 (7th Cir. 2005),2

 they submit that the sentencing court, if asked by either party,

must consider the various sentencing factors set forth in

18 U.S.C. § 3553(a). These factors include the need to

avoid unwarranted sentencing disparities in like cases. See

18 U.S.C. § 3553(a)(6).

We certainly have jurisdiction to consider whether a

district court is required to reevaluate the section 3553

sentencing factors and, more particularly, to consider the

potential for sentencing disparities when granting a

sentence reduction under Rule 35(b). However, we

need not decide the issue at this time. Whether or not the

district court was required to consider the section 3553

factors when granting a sentence reduction under

Rule 35(b), the records reveal that the court in fact did

so here. Although the court did not mention the phrase

“sentencing disparity” in either of its opinions, it did
10 Nos. 07-3637 & 07-3639

3 Cf. United States v. Cunningham, 429 F.3d 673, 676 (7th Cir.

2005) (“[A]re we left in serious doubt whether the judge connected the facts relating to the statutory factors to the sentence he imposed?”).

emphasize other relevant section 3553(a) factors—namely,

the nature of the defendants’ criminal conduct and their

prior criminal histories. It further noted that the imposed

sentences were “reasonable, responsible, relevant and

necessary to accomplish these purposes as set forth in 18

United States Code Section 3553(a).” Chapman Tr. at 7;

Frank Tr. at 8. In other words, the court chose to exercise

its discretion in a manner that emphasized the defendants’ prior criminal acts and other section 3553 factors. As

we noted earlier, the weight that the district court

assigns to permissible factors when exercising its discretion under Rule 35(b) generally is not subject to our review.

Here, the court did not evidence a misapprehension

about its authority to consider the section 3553 factors on a

Rule 35(b) motion; nor did it suggest that it refused to

consider those factors. Indeed, the court stated that it

did consider the relevant section 3553(a) factors, and it

believed that the sentences that it imposed were necessary to account for the defendants’ criminal history and

conduct. We have little reason to doubt that the district

court considered the factors that it said it did.3

 Accordingly, we need not determine whether the court otherwise

would have been required to consider the section 3553(a)

factors in ruling on a Rule 35(b) motion.

b.

We next consider the defendants’ contention that the

district court committed legal error when it failed to
Nos. 07-3637 & 07-3639 11

consider their argument that they had provided greater

assistance to the Government than the usual case of

substantial assistance. We have noted repeatedly our

reluctance to require sentencing judges to address explicitly every argument that a defendant makes at a

sentencing hearing. Cunningham, 429 F.3d at 679. The

Supreme Court recently expressed a similar reluctance,

although it cautioned that a district court should explain

its decision in a way that assures reviewing courts that

it considered the parties’ arguments. See Rita, 127 S. Ct. at

2468-69 (“Sometimes a judicial opinion responds to every

argument; sometimes it does not . . . . The sentencing

judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has

a reasoned basis for exercising his own legal decisionmaking authority.”). We noted in United States v. Miranda,

505 F.3d 785 (7th Cir. 2007), that “[a] judge need not

comment on every argument the defendant raises,”

particularly if the argument is so weak that it does not

merit discussion. Id. at 792.

In this case, we have no reason to doubt that the district court considered the defendants’ arguments. The

court here concluded that the defendants had provided

substantial assistance; however, it also concluded that

the defendants’ significant criminal histories and criminal conduct required a sentence of 102 or 72 months,

respectively. This is not a refusal to consider the extent of

the assistance provided by the defendants: It is a determination that the extent of the assistance provided did

not outweigh other relevant considerations. In the district

court’s view, the sentences that it imposed were necessary to account for the defendants’ substantial criminal

histories and conduct. As explained above, we do not have
12 Nos. 07-3637 & 07-3639

4 The Government calculated the proposed sentence of 84

months by applying a two-level reduction in his offense level. It

reduced his offense level from 27 to 25, and it applied his

criminal history category of IV. This yielded a guidelines

range of 84-105 months. The Government suggested that the

court should impose the lowest sentence within this range, or

84 months, even though it had originally imposed a sentence

at the high end of the original guidelines range.

Mr. Chapman arrived at the 84 months sentence using a

different method of calculation. He suggested that the court

apply a four-level reduction and choose a sentence at the

high end of the resulting guidelines range. Pairing an offense

level of 23 and a criminal history category of IV yields a sentence range of 70-87 months. A sentence of 84 months is near

the high end of that range.

The district court did not address specifically either of these

methods of calculation.

jurisdiction to review this discretionary sentencing determination. See McGee, 508 F.3d at 444-45; McDowell, 117

F.3d at 977-78.

3.

Finally, we turn to Mr. Chapman’s objection that the

district court’s method of calculating his sentence reduction

was legal error. At Mr. Chapman’s hearing, the Government suggested that the court impose a sentence of 84

months, and Mr. Chapman agreed to that proposed

sentence.4

 Nevertheless, in its decision to sentence Mr.

Chapman to 102 months’ imprisonment, the district court

did not reference explicitly the Government’s 84-month

proposal. Instead, it applied a two-level reduction to

Mr. Chapman’s previous offense level and selected a
Nos. 07-3637 & 07-3639 13

sentence at the higher end of the resulting guidelines range.

Relying on United States v. Thomas, 930 F.2d 526, 531 (7th

Cir. 1991), Mr. Chapman submits that “[t]he government’s

recommendation should be the starting point for the

district court’s analysis.” In his view, the district court

failed to begin its analysis with the Government’s proposed

sentence of 84 months, as required by law, and therefore it

committed legal error.

At Mr. Chapman’s hearing, the district court did not

mention explicitly that the Government had proposed a

sentence of 84 months’ imprisonment. It did, however,

begin its analysis by granting a two-level reduction in

Mr. Chapman’s offense level, which was the mechanism

by which the Government had arrived at its 84-month

proposed sentence. The court noted that the reduced

offense level, when paired with the defendant’s criminal

history category, resulted in an advisory guidelines range

of 84-105 months. It then explained that a sentence in the

upper half of the reduced range was necessary and appropriate for Mr. Chapman, considering his significant

criminal history and serious criminal conduct. Although

the opinion did not explicitly invoke the Government’s

proposed 84-month sentence, the record indicates that

the judge was aware of the Government’s proposed

sentence and that he proceeded from that starting point.

Accordingly, the district court’s method of calculation

was not error. Its conclusion that a 102-month sentence

was necessary to account for other important sentencing

considerations is not reviewable on appeal.
14 Nos. 07-3637 & 07-3639

Conclusion

For the reasons set forth above, we affirm the judgment of the district court.

AFFIRMED

USCA-02-C-0072—7-10-08