### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 10933 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. SAVILLE MCKNIGHT , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:13

- CR

- 105

- 2

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Saville McKnight pl ed guilty to one count of conspiracy to possess with i ntent to distribute 500 grams or more of cocaine. Due to the amount of cocaine and McKn ight ’s criminal history, his advisory guideline range would have been 360 months to life, but the statutory maximum sentence was 48 0 months. See 21 U.S.C. § 841(b)(1)(B). At the initial sentencing, the court denied the G overnment ’s mo tion for a downward departure based on McKnight’s

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 13, 2015 Lyle W. Cayce Clerk Case: 14-10933 Document: 00513113010 Page: 1 Date Filed: 07/13/2015No. 14

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2 assistance in prosecuting codefendant George Bagley. The district court sentenced McKnight to 480 mo nths . The court noted McKnight’s extensive criminal histo r y . It also reasoned that McKnight had already been a dequately rewarded for his cooperation against Bagley because the G overnment did not charge him with the true am o unt of cocaine involved in the crime, which would have resulted in a maximum sentence of life in prison. See § 841(b)(1)(A)

. The G overnment agreed that McKnight’s cooperation was a factor in the decision to charge him under Section 841(b)(1)(B) rather than Section 841(b)(1)(A)

. McKnight ’s direct appeal was voluntarily dismissed

. United States v. McKnight , No. 13

- 10 274 (5th Cir. Dec. 27, 2013). Within a year, t he Government moved for a sentence reduction under Federal Rule of Criminal Procedure 35(b) based on McKnight’s assistan ce in the Illinois prosecution of Tremaine Allen. McKnight also offered information that he had assisted in the arrest or prosecution of Leland Deviner in Illinois , and Juan Carlos Martinez and Dialitza Ortiz in Texas. T he district court declined to cond uct a hearing , and it reduced McKnight’s 40

- year sentence by two years. McKnight has appealed. In his first contention, McKnight argues that the district court deprived him of due process of law by refusing to hold an evidentiary hearing on the Rule 35 m otion. McKnight was not entitled to a hearing, so we review the denial of a hearing only for abuse of discretion. See United States v. Nerren , 613 F.2d 572, 573 (5th Cir. 1980); United States v. Sanders , 438 F.2d 344, 345 (5th Cir. 1971). The district c ourt considered more than 1000 pages of documents before conclud ing that McKnight deserved no more than a 24

- month reduction in light of previous rewards for cooperation. McKnight offers only general assertions that a hearing was required so that he could correct the court’s oversights and errors. He does not show that any additional oral Case: 14-10933 Document: 00513113010 Page: 2 Date Filed: 07/13/2015No. 14

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3 argument or specific presentation would have made any difference. McKnight fails to show that refusing to conduct a hearing was an abuse of discretion. See Nerren , 613 F.2d at 573; Sanders , 438 F.2d at 345. Concerning the substance of the district court’s ruling, McKnight contends that the court erred by finding that he did not provide substantial assistance in the prosecutions of Deviner, Martinez, or Ortiz

. We have yet to decide in a published decision the limits on our jurisdiction to review a district court’s discretionary ruling on a Rule 35(b) motion in light of 18 U.S.C. § 3742(a). We need not do so now because the district court’s factual fin ding

wa s n ot clearly erroneous in light of the extensive documentary record concerning the Allen case, and the lack of similar documentation concerning the cases of Diviner, Martinez, and Ortiz. S ee United States v. Nava , 624 F.3d 226, 229 (5th Cir. 2010); United S tates v. Alexander , 602 F.3d 639, 641 (5th Cir. 2010). Neither does the district court’s decision amount to “ illegality or a gross abuse of discretion.” Nerren , 613 F.2d at 573

. In his third claim, McKnight argues that the district court miscalculated t he advisory guideline range as being 360 months to life when it was 360 to 480 months. This issue concerns the initia l guideline calculation . It was not raised on direct appeal , and the time for appealing that issue is past. See F ED

. R. A PP . P. 4(b)(1)( A)(i); see also F ED

. R. C RIM . P. 35(a) (providi n g that “other clear error” is correctable under Rule 35 within 14 days). In any event, this contention is meritless because the district court recognized that the correct range was 360 to 480 months, regardl ess of whether it thought McKnight sh ould have been charged with a more serious crime. In his final claim, McKnight argues that, by treating the “true” statutory maximum sentence as life, the district court deprived him of his right to a jury ’s fact finding and effectively usurped the G overnment’s prosecutorial authority Case: 14-10933 Document: 00513113010 Page: 3 Date Filed: 07/13/2015No. 14

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4 to charge him under Section 841(b)(1)(B). This claim about the initial sentencing calculation is arguably not cognizable in this appeal. Regard less,
t he district court merely noted that the G overnment could have charged a more serious offens e but instead rewarded McKnight by charging a crime with a lower maximum sentence. Although the court may well have thought the maximum sentence should have been life, the court recognized that i t was in fact 480 months

. The judgment is AFFIRMED

. Case: 14-10933 Document: 00513113010 Page: 4 Date Filed: 07/13/2015