*

The Honorable Jon P. McCalla, Chief United States District Judge for the Western District of

Tennessee, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0243p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

ANTHONY BOWERS,

 Defendant-Appellant.

X

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No. 08-5595

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 00-00075-001—Todd J. Campbell, Chief District Judge.

Argued: January 15, 2010

Decided and Filed: August 12, 2010 

Before: BOGGS and GILMAN, Circuit Judges; and McCALLA, Chief District

Judge.*

_________________

COUNSEL

ARGUED: Jack E. Seaman, Nashville, Tennessee, for Appellant. Blanche B. Cook,

ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

ON BRIEF: Jack E. Seaman, Nashville, Tennessee, for Appellant. Blanche B. Cook,

ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

BOGGS, Circuit Judge. Although it has been over five years since the Supreme

Court’s thoroughgoing reform of federal sentencing law in United States v. Booker, 543

U.S. 220 (2005), a number of open questions remain regarding that decision’s

ramifications. In particular, this case requires us to decide Booker’s impact – if any –

1
No. 08-5595 United States v. Bowers Page 2

1

Whether to reduce a sentence pursuant to a Rule 35(b) motion is within the discretion of the

district court. See United States v. McDowell, 117 F.3d 974, 976 (7th Cir. 1997) (stating that a Rule 35(b)

reduction is “discretionary”); see also United States v. Poland, 562 F.3d 35, 37-40 (1st Cir. 2009)

(discussing in detail the history and evolution of Rule 35(b)).

on our jurisdiction to hear the appeal from a district court’s decision to reduce (or

decline to reduce) a final sentence under 18 U.S.C. § 3582(c)(2) (“§ 3582(c)(2)”) and/or

Federal Rule of Criminal Procedure 35(b) (“Rule 35(b)”). Because the Supreme Court

has recently clarified that Booker does not apply to such sentence-reduction proceedings,

see Dillon v. United States, 130 S. Ct. 2683 (2010), we conclude that we lack jurisdiction

to hear a defendant’s appeal of the grant or denial of a sentence reduction pursuant to

those sections on Booker “reasonableness” grounds. Accordingly, we dismiss this

appeal for want of jurisdiction.

I

In March 2000, a federal grand jury indicted Anthony Bowers on one count of

conspiracy to possess, with intent to distribute, five kilograms or more of powder

cocaine and fifty grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 846. Based on his criminal history category of VI, Bowers was subject to a sentence

of 360 months to life under the (then-mandatory) United States Sentencing Guidelines

(“Guidelines”). Bowers pleaded guilty pursuant to an agreement under which he was

to receive a sentence of only 120 months. Before sentencing, however, Bowers breached

his plea agreement by leaving the country without permission, thereby subjecting

himself once again to a Guidelines-range sentence. As a result of a motion under

§ 5K1.1 of the Guidelines, the district court in November 2000 imposed a belowGuidelines-range sentence of 262 months of imprisonment and ten years of supervised

release. Bowers did not appeal or collaterally attack this sentence.

In January 2008, the government filed a motion pursuant to Rule 35(b) relating

to Bowers’s sentence.1

 Meanwhile, in November 2007, the United States Sentencing

Commission amended the Guidelines to reduce the sentencing disparity between crackcocaine and powder-cocaine offenses. See U.S.S.G. Supp. App. C, Amdt. 706 (effective

Nov. 1, 2007); see also Kimbrough v. United States, 552 U.S. 85 (2007) (explaining
No. 08-5595 United States v. Bowers Page 3

2

Section 3582(c)(2) provides:

[I]n the case of a defendant who has been sentenced to a term of imprisonment based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director

of the Bureau of Prisons, or on its own motion, the court may reduce the term of

imprisonment, after considering the factors set forth in [18 U.S.C. §] 3553(a) to the

extent that they are applicable, if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission. 

A district court “has the discretion to deny a section 3582(c)(2) motion, even if the retroactive amendment

has lowered the guideline range.” United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997).

background of this amendment). In early 2008, the Sentencing Commission declared

this amendment to be retroactive. See U.S.S.G. Supp. App. C, Amdt. 713 (effective

Mar. 3, 2008). Bowers, relying on these amendments, filed a separate motion pursuant

to § 3582(c)(2) seeking a sentence reduction.2

On May 5 and 6, 2008, the district court conducted a combined hearing on the

two motions. During this hearing, the court heard testimony from one of Bowers’s

fellow inmates that, several months earlier, Bowers and two other inmates had violently

attacked him and searched his anus for contraband. Three corrections officers gave

corroborating testimony. Bowers, by contrast, testified that he had nothing to do with

the assault and that he had reformed himself in prison, found religion, and “learned his

lesson.” Bowers also proffered several friends, family members, and fellow prisoners

as character witnesses.

The government, taking the position that Bowers’s alleged participation in the

assault demonstrated his “dangerousness to the public,” suggested at most a “de

minimis” sentence reduction of one year (i.e., a total sentence of 250 months). Bowers

argued that his sentence should be reduced to time served (at that point, approximately

90 months), or, at most, to the 120 months he was originally to serve under the breached

plea agreement.

From the bench, the district court found the government’s witnesses credible and

Bowers not credible. The court then opined that, based on the totality of the

circumstances, a “reduced sentence wouldn’t be sufficient based on the negative

[personal] characteristics of Mr. Bowers and the actions he took toward [the victim] . . . ,
No. 08-5595 United States v. Bowers Page 4

the need to deter criminal conduct in prison, and the need to protect the public from

further crimes.” Consequently, the district court refused to award any additional

sentence reduction pursuant to either Rule 35(b) or § 3582(c)(2). Bowers timely

appealed.

II

We begin – and also end – by examining whether we have jurisdiction to

consider Bowers’s appeal at all. The government argues that, under this circuit’s

precedents, we lack jurisdiction to hear Bowers’s appeal of the district court’s Rule 35(b)

determination – a conclusion that Bowers disputes. And although the government does

not challenge our jurisdiction to hear Bowers’s appeal of the district court’s § 3582(c)(2)

determination, “[s]ubject-matter limitations on federal jurisdiction . . . must be policed

by the courts on [our] own initiative . . . .” Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 583 (1999). After a searching examination of the law, we are convinced that we

lack jurisdiction over either branch of Bowers’s appeal.

A. Which Statute Controls the Jurisdictional Analysis?

1. Potential Sources of Jurisdiction

Criminal defendants enjoy no constitutional right to appeal their convictions;

accordingly, “in order to . . . appeal one must come within the terms of [some] applicable

statute . . . .” United States v. Abney, 431 U.S. 651, 656 (1977). There are two possible

statutory sources of appellate jurisdiction here. The first is 28 U.S.C. § 1291 (“§ 1291”),

the general appellate-jurisdiction statute, which authorizes us to hear “appeals from all

final decisions of the district courts . . . .” The second is 18 U.S.C. § 3742 (“§ 3742”),

enacted as part of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II, 98

Stat. 1987. That provision authorizes us to hear a defendant’s appeal of an “otherwise

final sentence” in only four specified situations – namely, where the defendant argues

that the sentence:

(1) was imposed in violation of law; [or]
No. 08-5595 United States v. Bowers Page 5

3

Subsection (b) of § 3742, meanwhile, specifies when we may hear the government’s appeal of

a sentence. This case does not present the question of when the government may appeal a district court’s

determination of a sentence reduction motion.

(2) was imposed as a result of an incorrect application of the sentencing

guidelines; or

(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.

18 U.S.C. § 3742(a).3

Because Congress enacted the Sentencing Reform Act with the intent to establish

“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, the federal courts are in agreement that § 3742 is now “the

exclusive avenue through which a party can appeal a sentence” imposed as the result of

a run-of-the-mill plenary sentencing proceeding following a conviction, United States

v. McAndrews, 12 F.3d 273, 277 (1st Cir. 1993). In other words, “a criminal defendant

may not invoke [the broad grant of appellate jurisdiction found in] § 1291 to circumvent

the conditions imposed by 18 U.S.C. § 3742 for appealing . . . sentences.” United States

v. Hartwell, 448 F.3d 707, 712 (4th Cir. 2006).

Here, however, Bowers does not appeal the result of an initial, plenary

sentencing proceeding. Rather, he appeals the district court’s refusal to reduce a

previously imposed sentence. Which jurisdictional provision controls, then, depends on

whether Bowers’s appeal is properly viewed as an appeal of the district court’s

determination of the sentence-reduction motions or as an appeal of the sentence that

resulted from those motions. Because our jurisdiction to hear appeals of “sentences”

under § 3742 is tightly circumscribed, the answer to this question is of great

consequence.
No. 08-5595 United States v. Bowers Page 6

4

One might question whether this reasoning applies to a district court’s decision to deny a Rule

35(b) motion outright, which arguably does not “effectively impose[] a new sentence.” 325 F.3d at 793

(emphasis added). However, the Moran panel held broadly that “[a] district court’s ruling on a Rule 35(b)

motion” must be appealed under § 3742 and did not limit its holding to district courts’ grants of such

motions. Ibid. (emphasis added). Presumably, the Moran panel reasoned that the outright denial of a Rule

35(b) motion effectively reimposes the defendant’s originalsentence; nothing in § 3742, after all, requires

that a sentence be “new” to fall within that section’s ambit. Furthermore, the Moran panel also set forth

two alternative rationales for its decision that Rule 35(b) appeals are governed by § 3742, which we

address immediately below; neither of these alternative rationales supports a distinction between

defendants’ appeals of Rule 35(b) grants and Rule 35(b) denials.

Our subsequent Rule 35(b) cases, too, have used broad language suggesting that both grants and

denials are subject to the same jurisdictional analysis. See United States v. Parker, 543 F.3d 790, 792 (6th

Cir. 2008) (“[A] district court’s ruling on a Rule 35(b) motion falls within the plain meaning of an

‘otherwise final sentence.’” (emphasis added)); United States v. Grant, 567 F.3d 776, 780 n.1 (6th Cir.),

vacated upon grant of reh’g en banc (6th Cir. 2009) (“Under our traditional interpretation of § 3742(a),

we lack jurisdiction to consider an appeal that goes only to a refusal to depart downward [under Rule

35(b)] . . . .” (emphasis added)).

Lastly, we note that our sister circuits have stated quite explicitly that Rule 35(b) denials are to

be treated the same way as grants for appellate purposes. See, e.g., United States v. Manella, 86 F.3d 201,

203 (11th Cir. 1996) (“A district court’s decision to grant or deny a Rule 35(b) motion is . . . one from

which an appeal generally will not lie under § 3742.” (emphasis added) (quoted in and followed by

Moran)); United States v. Pridgen, 64 F.3d 147, 149 (4th Cir. 1995) (“[T]he decision of a district court to

deny the Government’s Rule 35(b) motion, and therefore to leave the previously imposed sentence

undisturbed, is an appeal from an otherwise final sentence [governed by § 3742].” (emphases added));

United States v. Chavarria-Herrara, 15 F.3d 1033, 1035-36 (11th Cir. 1994) (“In ruling upon a Rule 35(b)

motion, the district court will either reduce the sentence that was previously imposed or leave it

undisturbed. Once that ruling is made, the remaining sanction upon the defendant falls within the common

sense meaning of ‘an otherwise final sentence.’” (emphasis added) (cited with approval in Moran)).

2. Rule 35(b) Appeals

Although both interpretations of the nature of Bowers’s appeal are possible in

theory, the question is settled in this circuit with respect to the Rule 35(b) issue. In

United States v. Moran, 325 F.3d 790 (6th Cir. 2003), we reasoned that a district court’s

decision on a Rule 35(b) motion “effectively impose[s] a new sentence”:

[Defendant’s] original sentence was 233 months. After the district court’s

order granting a departure, his sentence was 221 months. By any

definition, the court’s order imposed a new sentence, and [defendant’s]

appeal of that order is an appeal from an “otherwise final sentence” . . . .

Id. at 793 (quoting United States v. McDowell, 117 F.3d 974, 977-78 (7th Cir. 1997)).

Accordingly, we held that appeals of “[a] district court’s ruling on a Rule 35(b) motion

. . . [are] properly governed by 18 U.S.C. § 3742.” Ibid.4

While we found this “common sense meaning” argument sufficient to decide the

question, we went on to note two additional arguments supporting our holding. First,

we observed that Rule 35(b) motions are the post-sentencing analogues of government
No. 08-5595 United States v. Bowers Page 7

motions for downward departures pursuant to U.S.S.G. § 5K1.1 upon initial sentencing.

Ibid. The latter, we noted, are clearly governed by § 3742, because such departures are

part and parcel of a defendant’s plenary sentence proceeding; we then reasoned that,

“[g]iven the similarity between § 5K1.1 and Rule 35(b), it would be anomalous to treat

appeals of judgments resolving the two motions differently.” Ibid. We also noted that

legislative history suggested that Congress intended Rule 35(b) determinations to be

appealed under § 3742. See ibid. (quoting S. Rep. No. 225, 98th Cong., 2d Sess. 158

(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3341 (stating that Rule 35 was amended

“in order to accord with the provisions of proposed section 3742 of Title 18 concerning

appellate review of sentence”)).

With one exception, every other circuit to address the question is in accord with

our holding in Moran. See United States v. McKnight, 448 F.3d 237, 238 (3d Cir. 2006);

United States v. Coppedge, 135 F.3d 598, 599 (8th Cir. 1998); McDowell, 117 F.3d at

977-78; United States v. McMillan, 106 F.3d 322, 324 n.4 (10th Cir. 1997); United

States v. Doe, 93 F.3d 67, 67-68 (2d Cir. 1996); United States v. Arishi, 54 F.3d 596,

597-99 (9th Cir. 1995); United States v. Pridgen, 64 F.3d 147, 148-50 (4th Cir. 1995);

United States v. Chavarria-Herrara, 15 F.3d 1033, 1034-36 (11th Cir. 1994); but cf.

McAndrews, 12 F.3d at 277 (holding that appealability of Rule 35(b) determinations is

governed by § 1291).

3. Section 3582(c)(2) Appeals

In contrast with this wealth of cases analyzing appellate jurisdiction over Rule

35(b) determinations, surprisingly little has been said by the federal courts regarding the

source of appellate jurisdiction over § 3582(c)(2) determinations. Some out-of-circuit

decisions have stated without discussion that such determinations are appealable under

§ 1291. See, e.g., United States v. McGee, 553 F.3d 225, 226 (2d Cir. 2009); United

States v. Mateo, 560 F.3d 152, 154 n.1 (3d Cir. 2009); United States v. Colson, 573 F.3d

915, 916 (9th Cir. 2009); United States v. Dews, 551 F.3d 204, 208 (4th Cir. 2008);

United States v. Rhodes, 549 F.3d 833, 834 (10th Cir. 2008); United States v. White, 163

F. App’x 834, 835 n.1 (11th Cir. 2006). Other decisions – some from the very same
No. 08-5595 United States v. Bowers Page 8

circuits – have stated with little analysis that such appeals arise under § 3742. See, e.g.,

United States v. Legree, 205 F.3d 724, 727 (4th Cir. 2000); United States v. Lowe, 136

F.3d 1231, 1232 (9th Cir. 1998); United States v. Walsh, 26 F.3d 75, 77 (8th Cir. 1994).

Still other decisions – again, from the same circuits – have identified both § 1291 and

§ 3742 as authorizing jurisdiction over such appeals, also with little or no discussion.

See, e.g., United States v. Williamson, 315 F. App’x 690, 691 (10th Cir. 2009); United

States v. Liquori, 115 F. App’x 348, 349 (9th Cir. 2004); United States v. Perez, 40 F.

App’x 711, 711 (3d Cir. 2002).

In our own circuit, although we hear such appeals on a regular basis, it has

generally not been our practice to specify the statutory provision under which we take

jurisdiction; ordinarily, we simply state that district-court determinations in § 3582(c)(2)

proceedings are “reviewed for abuse of discretion” and proceed to the merits of the

appeal. See, e.g., United States v. Bridgewater, 606 F.3d 258, 260 (6th Cir. 2010);

United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010); United States v. Archer, 362

F. App’x 491, 494 (6th Cir. 2010).

Examples to the contrary are few and far between. In a single published opinion,

we stated in passing: “This is an appeal from the judgment of the District Court after

denial of a motion filed pursuant to 18 U.S.C. § 3582(c)(2). Jurisdiction is invoked under

28 U.S.C. § 1291.” United States v. Carter, 500 F.3d 486, 488 (6th Cir. 2007) (emphasis

added). Although we went on to affirm the district court on the merits, we never

affirmatively stated that we did in fact have jurisdiction under § 1291, and the

proposition does not seem to have been disputed in that case. Years earlier, in an

unpublished decision, we did actually state – though without any discussion or analysis

– that we “have jurisdiction over [the defendants’] appeals from the final orders of the

district court” with respect to their § 3582(c)(2) motions, citing § 1291. United States

v. Cerna, Nos. 94-1433 & 94-1437, 1994 WL 542757, at *1 (6th Cir. Oct. 4, 1994)

(emphasis added). Again, the court’s jurisdiction seems not to have been in dispute.

On the other hand, in one unpublished decision involving a § 3582(c)(2) appeal,

we stated that “it is well-settled that a defendant may appeal a sentence imposed as a
No. 08-5595 United States v. Bowers Page 9

result of an incorrect application of the guidelines” and cited § 3742, implying that we

were taking jurisdiction under that provision. United States v. Williams, No. 96-4387,

1999 WL 397945, at *4 (6th Cir. June 3, 1999) (internal quotation marks omitted)

(emphasis added). Similarly, in another unpublished decision involving a § 3582(c)(2)

appeal, we cited § 3742 and stated that “this court has jurisdiction to consider whether

[defendant’s] modified sentence was derived from an incorrect application of the

sentencing guidelines.” United States v. Coffee, No. 96-5831, 1997 WL 468335, at *2

(6th Cir. Aug. 13, 1997) (emphasis added).

None of our prior cases dictates the result here. Cerna, Williams, and Coffee are

unpublished and therefore not binding. And Carter, although published, merely noted

that the appellant had “invoked” § 1291 and proceeded immediately to the merits. In

none of these cases does it appear that the jurisdictional issue was in question. As the

Supreme Court has stated, “when questions of jurisdiction have been passed on in prior

decisions sub silentio, [we are not] bound when a subsequent case finally brings the

jurisdictional issue before us.” Hagans v. Lavine, 415 U.S. 528, 533 n.5 (1974); see also

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (“[D]rive-by

jurisdictional rulings . . . have no precedential effect.”); United States v. Lucido, --- F.3d

----, 2010 WL 2925100, at *5 (6th Cir. July 28, 2010) (holding that a panel of this court

is not bound by a prior panel’s “unexamined” statement that jurisdiction exists, where

the jurisdictional issue “merely lurk[ed] in the record” in the prior case and was not

“brought to the attention of the court” (quoting Rinard v. Luoma, 440 F.3d 361, 363 (6th

Cir. 2006)).

Taking a fresh look at the question, we believe that our jurisdiction to consider

the appeal of a § 3582(c)(2) determination, like our jurisdiction to consider the appeal

of a Rule 35(b) determination, must come from § 3742. Section 3582(c)(2)

determinations are not distinguishable from Rule 35(b) determinations in any relevant

respect. Both provisions allow the discretionary reduction (but not the augmentation)

of an already imposed sentence based on the satisfaction of some condition precedent.

See Dillon, 130 S. Ct. at 2692 (“Like § 3582(c)(2), Rule 35 delineates a limited set of
No. 08-5595 United States v. Bowers Page 10

circumstances in which a sentence may be corrected or reduced.”). Defendants

appealing § 3582(c)(2) determinations are “appealing [their] sentence[s]” every bit as

much as defendants appealing the outcome of proceedings under Rule 35(b). Moran,

325 F.3d at 793. We see no countervailing considerations that would justify treating

these two discretionary sentence-reduction provisions differently for jurisdictional

purposes. Accordingly, we hold that both branches of Bowers’s appeal must be

subjected to the same jurisdictional analysis under § 3742.

4. Does Dillon Affect This Analysis?

Before we move on, we briefly address the Supreme Court’s recent statement in

Dillon v. United States that, “[f]ollowing [the] two-step approach [required by

§ 3582(c)(2)], a district court proceeding under § 3582(c)(2) does not impose a new

sentence in the usual sense.” 130 S. Ct. at 2691. Viewed in isolation, this quotation

might be seen as undermining our holding that a defendant appealing the result of a

sentence-reduction proceeding is appealing his “sentence” within the meaning of § 3742.

In our opinion, however, the key parts of this quotation are its beginning –

“[f]ollowing this two-step approach” – and its end – “in the usual sense.” As we will

discuss further below, the central theme of Dillon is that a § 3582(c)(2) proceeding is

procedurally unlike a plenary resentencing. See ibid. (noting the “narrow scope” of

§ 3582(c)(2) proceedings); id. at 2692 (referring to a § 3582(c)(2) proceeding as a

“circumscribed inquiry”). The Court observed that in such a proceeding, unlike in a

plenary sentencing proceeding, a district court may not weigh the general sentencing

considerations set forth in 18 U.S.C. § 3553(a) unless it first ascertains that a reduction

would be “consistent with [the specific requirements of U.S.S.G.] § 1B1.10.” 130 S. Ct.

at 2691-92.

We read the Dillon Court’s comment that a district court “[f]ollowing this twostep approach . . . does not impose a new sentence in the usual sense” merely as

highlighting this procedural dissimilarity, rather than as suggesting that the end result
No. 08-5595 United States v. Bowers Page 11

5

In fact, elsewhere in its opinion, the Dillon Court used language suggesting that the end result

of a § 3582(c)(2) proceeding is the imposition of a sentence, notwithstanding the specific path a district

court must take to get there. In its recitation of the facts, the Court described the district judge’s

determination of the petitioner’s § 3582(c)(2) motion as “impos[ing] a sentence . . . .” 130 S. Ct. at 2690

(emphasis added). In its analysis, the Court stated that “[o]nly if the sentencing court originally imposed

a term of imprisonment below the Guidelines range does § 1B1.10 authorize a court proceeding under

§ 3582(c)(2) to impose a term ‘comparably’ below the amended range.” Id. at 2691-92 (emphasis added).

The Court then held that judicial fact-finding at a § 3582(c)(2) proceeding does not implicate the Sixth

Amendment because judges “have long exercised discretion of this nature in imposing sentence within

[established] limits . . . .” Id. at 2692 (emphasis added) (original emphasis omitted).

6

For example, Bowers argues that the district court failed to consider the disparity between

Bowers’s sentence and those of his co-conspirators and the unjustifiable harshness with which the

Guidelines continue to treat crack-cocaine offenses, even after the 2007 amendment.

of a sentence-reduction proceeding is not a “sentence” within the meaning of § 3742.5

Indeed, because Dillon emphasized that sentence-reduction proceedings are narrow

“exception[s] to the general rule of [a sentence’s] finality,” 130 S. Ct. at 2690, it is

difficult to believe that the Court intended, with a single passing comment, to drastically

expand the circumstances in which such proceedings are appealable, thereby rendering

them substantially less “final[]” (and undoing the case law of at least nine circuits). We

therefore conclude that Dillon does not impact this portion of our analysis.

B. Is Bowers’s Appeal Within the Scope of § 3742?

Having determined that jurisdiction to hear Bowers’s appeal must arise under

§ 3742 if it exists at all, we now consider whether the arguments that he asserts fall

within the scope of that section. In his appeal, Bowers raises two principal objections

to the district court’s decision. First, he argues that the district court erred in its factual

finding that he was involved in the alleged assault. Second, he argues that, for various

policy-oriented reasons, the denial of a sentence reduction was “unreasonable” and the

re-imposed sentence “is substantially longer than a sentence that would be sufficient, but

not greater than necessary, to comply with” the 18 U.S.C. § 3553(a) factors.6

As we have already noted, § 3742(a) authorizes us to review the outcome of a

sentence-reduction proceeding only where the resulting 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 guideline and is plainly
No. 08-5595 United States v. Bowers Page 12

7

In fact, Bowers’s sentence is already below the applicable Guidelines range.

8

We note that, technically speaking, these cases involved denials of downward departures upon

initial sentencing, rather than denials of sentence reductions at a later date. However, both types of

sentence adjustments are discretionary, and we find the timing difference irrelevant to the proper allegation

of a “violation of law.” See Moran, 325 F.3d at 793 (stating that, because “[t]he only practical difference

between [post-sentence reductions under] Rule 35(b) and [downward departures under] U.S.S.G. 5K1.1

is a matter of timing,” there is “no reason why Rule 35(b) motions should be governed by a different

standard.” (quoting Doe, 93 F.3d at 68); see also United States v. Poland, 562 F.3d 35, 40 (1st Cir. 2009)

(“Traditionally, the reductions for substantial assistance . . . – whether at initial sentencing or on sentence

reduction – have been governed by the same standards, as Congress doubtless intended.” (internal citation

omitted)).

unreasonable.” Moran, 325 F.3d at 792. Bowers does not allege that a particular

Guideline was applied incorrectly, that he received an above-Guidelines sentence, or that

he was sentenced for an offense for which there is no applicable Guideline.7

Accordingly, jurisdiction over this appeal, if it exists at all, must arise under

§ 3742(a)(1), which allows us to hear arguments that a sentence was imposed “in

violation of law.”

1. Pre-Booker Case Law

It is beyond dispute that, pre-Booker, the objections that Bowers raises would not

have qualified as cognizable “violation[s] of law.” In the pre-Booker era, an allegation

that the district court had denied a discretionary sentence adjustment “based on clearly

erroneous findings of fact” did not assert a “violation of law” within the meaning of

§ 3742(a). United States v. Clark, 385 F.3d 609, 623 (6th Cir. 2004); see also United

States v. Minutoli, 374 F.3d 236, 240 (3d Cir. 2004); United States v. Dewire, 271 F.3d

333, 337-39 (1st Cir. 2001); United States v. Watkins, 179 F.3d 489, 501 (6th Cir. 1999);

but cf. United States v. Sammoury, 74 F.3d 1341, 1345 (D.C. Cir. 1996).8

 Further, it was

also well-settled that mere “disagree[ment] with the extent of the sentence reduction” on

fairness grounds was not a proper assertion of a “violation of law.” Moran, 325 F.3d at

792, 794 (holding that sentencing disparity among co-conspirators did not qualify as a

“violation of law”); see also United States v. McGee, 508 F.3d 442, 444 (7th Cir. 2007)

(“§ 3742(a) does not authorize an appeal from a Rule 35(b) decision if the only
No. 08-5595 United States v. Bowers Page 13

9

By contrast, we held in Moran that a defendant properly alleges that his sentence was imposed

“in violation of law” where he argues that the district court erroneously believed “that it lacked discretion,

as a matter of law, to depart downward.” 325 F.3d at 794 (citing United States v. Dellinger, 986 F.2d 1042,

1044 (6th Cir. 1993)). Notably, we did not state that this was the only scenario in which a Rule 35(b)

disposition would be “in violation of law.” For example, several of our sister circuits held pre-Booker that

a defendant properly alleges a “violation of law” where he asserts that the district court “[c]onsider[ed]

. . . wholly improper factors” in its analysis. McDowell, 117 F.3d at 978 n.4; see also United States v. Doe, 351 F.3d 929, 932 (9th Cir. 2003); United States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996); accord

United States v. Grant, 567 F.3d 776, 780 n.1 (6th Cir.), vacated upon grant of reh’g en banc (6th Cir.

2009) (exercising jurisdiction over Rule 35(b) appeal where defendant “argue[d] that the District Court

misapprehended the factors that it was permitted to consider”).

10The Sentencing Reform Act’s standard-of-review provision, § 3742(e), was in pari materia

with § 3742(a), the jurisdictional provision we have already discussed. It stated:

Consideration.– Upon review of the record, the court of appeals shall determine whether

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 outside the applicable guideline range, and [the departure was

improper for specified reasons]; or

(4) was imposed for an offense for which there is no applicable sentencing

guideline and is plainly unreasonable. 

contention is that the district court did not exercise its discretion more favorably to the

defendant.”).9

2. Booker, Gall, and the Advent of Unreasonableness Review

When the Supreme Court decided Booker in 2005, it effected a far-reaching

change in federal sentencing law. In Justice Stevens’s lead opinion, the Court held that

mandatory application of the Guidelines violated the Sixth Amendment by subjecting

defendants to increased sentences based on facts not found by a jury. 543 U.S. at 245.

In Justice Breyer’s “remedial” opinion, the Court addressed this flaw by “sever[ing] and

excis[ing] two specific . . . provisions” of the Sentencing Reform Act: the provision

making the Guidelines mandatory (18 U.S.C. § 3553(b)(1)) and the provision that “sets

forth standards of review on appeal” (18 U.S.C. § 3742(e)). Id. at 259.10 In lieu of the

standard of review previously set forth in the statute, the Court substituted a new,

judicially created standard: review for “unreasonableness.” Id. at 261 (alteration

omitted). With the statute thus modified, the Booker Court stated, “the remainder of the

[Sentencing Reform] Act satisfies the [Sixth Amendment].” Id. at 259.
No. 08-5595 United States v. Bowers Page 14

Subsequently, in United States v. Gall, 552 U.S. 38 (2007), the Court elaborated

on this new standard of review, stating that courts of appeals are to review sentences for

both “procedural” and “substantive” unreasonableness. Id. at 51. Procedural

unreasonableness includes, inter alia, “selecting a sentence based on clearly erroneous

facts . . . .” Ibid. Substantive unreasonableness exists where, “tak[ing] into account the

totality of the circumstances, . . . the § 3553(a) factors, on a whole, [do not] justify” the

sentence imposed. Ibid. These factors include “the need for the sentence imposed . . .

to reflect the seriousness of the offense” and “the need to avoid unwarranted sentencing

disparities among defendants . . . who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(2), (a)(6).

Of course, these are the very complaints that Bowers raises with the sentencereduction proceedings below. Accordingly, our jurisdiction over Bowers’s appeal turns

on whether, after Booker and Gall, allegations of procedural or substantive

unreasonableness in the context of a Rule 35(b) or § 3582(c)(2) proceeding create

jurisdiction under § 3742.

3. Impact of Booker and Gall on the Appeal of Sentence Reduction Proceedings

At first blush, one might be inclined to conclude that the answer to this question

is yes. Although the Booker and Gall Courts did not address the statutory source of the

appellate courts’ newly acquired jurisdiction to review sentences for unreasonableness,

practically every circuit quickly concluded that § 3742(a)(1)’s “imposed in violation of

law” provision embraced claims of unreasonableness, at least in appeals of initial,

plenary sentencing proceedings. Booker, after all, was now “law.” As we explained:

Under Booker, an appellate court must review all sentences for

“reasonableness” . . . . [W]e fail to see how Trejo’s challenge – namely,

that the sentence imposed was “unreasonable”– does not implicate

§ 3742(a)(1). The standard set forth in the law of sentencing review, as

established by the Supreme Court, is one of reasonableness, and any

sentence that is deemed unreasonable must necessarily be one imposed

“in violation of law.”
No. 08-5595 United States v. Bowers Page 15

United States v. Trejo-Martinez, 481 F.3d 409, 411-12 (6th Cir. 2007) (internal citation

omitted); accord United States v. Fernandez, 443 F.3d 19, 25-26 (2d Cir. 2006); United

States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006), abrogated on other grounds by

Kimbrough v. United States, 552 U.S. 85 (2007); United States v. Montes-Pineda, 445

F.3d 375, 377 (4th Cir. 2006); United States v. Plouffe, 445 F.3d 1126, 1128 (9th Cir.

2006); United States v. Chavez-Diaz, 444 F.3d 1223, 1228-29 (10th Cir. 2006); United

States v. Martinez, 434 F.3d 1318, 1320 (11th Cir. 2006); United States v. Dorcely, 454

F.3d 366, 373-74 (D.C. Cir. 2006); United States v. Frokjer, 415 F.3d 865, 875 n.3 (8th

Cir. 2005).

However, we subsequently reached the opposite result in the context of an appeal

from a Rule 35(b) proceeding. See United States v. Parker, 543 F.3d 790 (6th Cir.

2008). In Parker, we noted that the Booker Court had “excis[ed]” only two specific

provisions from the Sentencing Reform Act – the provision making the Guidelines

mandatory and the standard-of-review provision. Id. at 792. Because the Booker Court

had left § 3742(a), the Act’s jurisdictional standard, untouched, we concluded that

“appellate courts have the same jurisdiction to review sentences post-Booker as they had

before Booker was decided,” and dismissed for lack of jurisdiction the defendant’s

reasonableness-based appeal of his Rule 35(b) sentence reduction. Ibid. The Parker

panel did not attempt to reconcile the tension between its reasoning and the reasoning

of Trejo-Martinez (and similar cases from other circuits), which had held that an

unreasonable sentence – at least of the initial, plenary variety – could indeed be

challenged as “imposed in violation of law” under § 3742(a)(1) because violations of

Booker were “violation[s] of law.”

Our sister circuits reached conclusions similar to ours in Parker, holding that

allegations of unreasonableness do not confer appellate jurisdiction over Rule 35(b)

determinations. As with Parker, however, the reasons given for these cases’ holdings

have not been entirely convincing. See, e.g., United States v. Wilson, 309 F. App’x 353,

354 (11th Cir. 2009) (holding that because “Rule 35(b) motions . . . were not discussed”

in Booker and Gall, unreasonableness review does not extend to Rule 35(b) appeals);
No. 08-5595 United States v. Bowers Page 16

11It appears that the sole authority to the contrary is a footnote of this circuit’s since-vacated

panel opinion in United States v. Grant, which stated:

[W]e [do not] lack jurisdiction to review sentences imposed pursuant to a Rule 35(b)

motion. To be lawful, a sentence must be reasonable. Thus, if an appellant contends that

his sentence imposed after a Rule 35(b) motion is unreasonable, we would have

jurisdiction to review it under § 3742(a)(1), since it would be an argument that the

sentence was imposed in violation of law.

567 F.3d 776, 780 n.1 (6th Cir.), vacated upon grant of reh’g en banc (6th Cir. 2009) (citation omitted).

Obviously, we are not bound by a dictum in the footnote of a vacated panel decision. In any event, as

discussed below, intervening Supreme Court precedent makes clear that reasonableness review does not

apply in this context.

McGee, 508 F.3d at 444-45 (relying on same reasoning as Parker); United States v.

Haskins, 479 F.3d 955, 957 (8th Cir. 2007) (holding that reasonableness review applies

only to sentences, not decisions on sentence-reduction motions, but failing to address the

widespread agreement that such motions result in imposition of new sentences).11

In our opinion, the Supreme Court’s recent decision in Dillon v. United States,

to which we have already adverted, makes clear that, regardless of their reasoning, these

cases reached the correct outcome. In Dillon, the defendant had been convicted of a

crack-cocaine offense. Following an unsuccessful appeal of his initial sentence, he had

moved for a sentence reduction pursuant to § 3582(c)(2) based on the same retroactive

Guidelines amendment that authorized Bowers’s § 3582(c)(2) motion in this case. 130

S. Ct. at 2689. In his motion, “Dillon asked the [district] court to grant not just the

two-level reduction authorized by the [Guidelines] amendment but also a further

reduction” to reflect his exemplary post-sentencing conduct. Ibid. The district court

reduced his sentence to the low end of the amended Guidelines range but held that it

lacked authority to go any lower, citing U.S.S.G. § 1B1.10(b)(2)(A), which generally

precludes a court from reducing a sentence in a § 3582(c)(2) proceeding “to a term that

is less than the minimum of the amended guideline range . . . .” Ibid. The Third Circuit

affirmed.

Before the Supreme Court, Dillon argued that Booker’s excision of the portion

of the Sentencing Reform Act making the Guidelines mandatory authorized the district

court to ignore U.S.S.G. § 1B1.10 and impose a sentence lower than the amended

Guidelines minimum. Id. at 2690. The Court disagreed. In relevant part, it reasoned:
No. 08-5595 United States v. Bowers Page 17

12This court reached a similar conclusion last year in United States v. Washington, 584 F.3d 693

(6th Cir. 2009).

Given the limited scope and purpose of § 3582(c)(2), we conclude that

proceedings under that section do not implicate the interests identified in

Booker. Notably, the sentence-modification proceedings authorized by

§ 3582(c)(2) are not constitutionally compelled. We are aware of no

constitutional requirement of retroactivity that entitles defendants

sentenced to a term of imprisonment to the benefit of subsequent

Guidelines amendments. Rather, § 3582(c)(2) represents a congressional

act of lenity . . . .

Viewed that way, proceedings under § 3582(c)(2) do not implicate the

Sixth Amendment right to have essential facts found by a jury beyond a

reasonable doubt. Taking the original sentence as given, any facts found

by a judge at a § 3582(c)(2) proceeding do not serve to increase the

prescribed range of punishment; instead, they affect only the judge’s

exercise of discretion within that range. “[J]udges in this country have

long exercised discretion of this nature in imposing sentence within

[established] limits in the individual case,” and the exercise of such

discretion does not contravene the Sixth Amendment even if it is

informed by judge-found facts. Apprendi v. New Jersey, 530 U.S. 466,

481, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (emphasis in original).

Because § 3582(c)(2) proceedings give judges no more than this

circumscribed discretion, “[t]here is no encroachment here by the judge

upon facts historically found by the jury, nor any threat to the jury’s

domain as a bulwark at trial between the State and the accused.” Oregon

v. Ice, 555 U.S. ----, ----, 129 S. Ct. 711, 713, 172 L. Ed. 2d 517 (2009).

Id. at 2692 (alterations in original). Having held that sentence-reduction proceedings

under § 3582(c)(2) do not implicate the Sixth Amendment concerns addressed in Booker,

the Court concluded that “the remedial aspect of the [Booker] Court’s decision [does not]

appl[y] to proceedings under that section . . . .” Id. at 2693. Accordingly, the Court held

that the district court had not erred in considering itself bound by the floor set by

U.S.S.G. § 1B1.10.12

Dillon’s holding that the Booker remedial opinion has no force in § 3582(c)(2)

proceedings directly compels the conclusion that Booker’s other specific “remedial

amendment[] to the Sentencing Reform Act” – its promulgation of unreasonableness

review in lieu of the Act’s more circumscribed standard – does not “appl[y] to
No. 08-5595 United States v. Bowers Page 18

13Our conclusion with respect to Rule 35(b) appeals is bolstered by this circuit’s line of cases

holding that Booker did not alter the long-standing rule that “the decision by a district court not to depart

downwards from the Guidelines is not reviewable on appeal unless the record reflects that the district court

was not aware of or did not understand its discretion to make such a departure.” United States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005); see also United States v. McBride, 434 F.3d 470, 475-76 (6th Cir.

2006). As we noted above, a district court’s award of a sentence reduction under Rule 35(b) for post- sentencing substantial assistance is much like the district court’s award of a downward departure under

U.S.S.G. § 5K1.1 for pre-sentencing substantial assistance. See Moran, 325 F.3d at 793 (“The only

practical difference between Rule 35(b) and U.S.S.G. 5K1.1 is a matter of timing.”). It would be

anomalous if one were generally insulated from review on appeal after Booker but the other were not.

14Of course, notwithstanding our decision today, defendants may continue to appeal district-court

determinations in sentence-reduction proceedings to the extent they allege “violation[s] of law” not

premised on Booker and its progeny. See Parker, 542 F.3d at 792 (stating that “appellate courts have the

same jurisdiction to review [sentence-reduction determinations] post-Booker as they had before Booker

was decided”); see also supra note 9 (discussing “violation[s] of law” recognized pre-Booker as valid

grounds for appeal).

proceedings under that section” either. Accordingly, a defendant’s allegation of Booker

unreasonableness in a § 3582(c)(2) proceeding does not state a cognizable “violation of

law” that § 3742(a)(1) would authorize us to address on appeal.

From here, it takes only a small inferential step to conclude that the same must

be true of Rule 35(b) proceedings. The Dillon Court itself noted the similarities between

proceedings under § 3582(c)(2) and Rule 35(b). Both are provisions of “limited scope

and purpose.” 130 S. Ct. at 2692. Neither is “constitutionally compelled,” and both

represent “congressional act[s] of lenity.” Ibid. And perhaps most importantly, as with

§ 3582(c)(2) proceedings, “any facts found by a judge at a [Rule 35(b)] proceeding do

not serve to increase the prescribed range of punishment . . . .” Ibid. (emphasis added);

see also United States v. Poland, 562 F.3d 35, 39 (1st Cir. 2009) (noting in dictum that

“[n]either the language of Booker nor its [Sixth Amendment] rationale appears to

[apply]” to Rule 35(b) proceedings, pursuant to which a sentence may only be

decreased). Accordingly, we reaffirm our holding in United States v. Parker that Booker

unreasonableness review does not extend to Rule 35(b) appeals.13 It follows that a

defendant’s allegation of Booker unreasonableness in a Rule 35(b) proceeding – just as

in a § 3582(c)(2) proceeding – is not a cognizable “violation of law” appealable under

§ 3742(a).14
No. 08-5595 United States v. Bowers Page 19

III

Because Bowers has not asserted a “violation of law” with respect to his sentence

that we are empowered to address, this appeal is DISMISSED for want of jurisdiction.