     Case: 14-10933      Document: 00513113010         Page: 1    Date Filed: 07/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10933
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 13, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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 pled guilty to one count of conspiracy to possess with
intent to distribute 500 grams or more of cocaine. Due to the amount of cocaine
and McKnight’s criminal history, his advisory guideline range would have been
360 months to life, but the statutory maximum sentence was 480 months. See
21 U.S.C. § 841(b)(1)(B).        At the initial sentencing, the court denied the
Government’s motion for a downward departure based on McKnight’s


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-10933

assistance in prosecuting codefendant George Bagley.        The district court
sentenced McKnight to 480 months. The court noted McKnight’s extensive
criminal history. It also reasoned that McKnight had already been adequately
rewarded for his cooperation against Bagley because the Government did not
charge him with the true amount of cocaine involved in the crime, which would
have resulted in a maximum sentence of life in prison. See § 841(b)(1)(A). The
Government 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. 13-10274 (5th Cir. Dec. 27, 2013).
      Within a year, the Government moved for a sentence reduction under
Federal Rule of Criminal Procedure 35(b) based on McKnight’s assistance 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. The district court
declined to conduct 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 motion. 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 court considered more than 1000 pages of
documents before concluding 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



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                                  No. 14-10933

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 finding
was not 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. See United States v. Nava, 624 F.3d
226, 229 (5th Cir. 2010); United States 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
the advisory guideline range as being 360 months to life when it was 360 to
480 months. This issue concerns the initial guideline calculation. It was not
raised on direct appeal, and the time for appealing that issue is past. See FED.
R. APP. P. 4(b)(1)(A)(i); see also FED. R. CRIM. P. 35(a) (providing 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, regardless of whether it thought McKnight
should 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 Government’s prosecutorial authority



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to charge him under Section 841(b)(1)(B).      This claim about the initial
sentencing calculation is arguably not cognizable in this appeal. Regardless,
the district court merely noted that the Government could have charged a more
serious offense 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 it was in
fact 480 months.
     The judgment is AFFIRMED.




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