
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1596                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                        WILLIE McANDREWS, a/k/a WILLIE WILSON,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              __________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               John F. O'Donnell for appellant.               _________________               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with  whom Jay P. McCloskey,  United States Attorney, Nicholas M.                     ________________                           ___________          Gess  and  William  H.  Browder,  Jr.,  Assistant  United  States          ____       __________________________          Attorneys, were on brief, for the United States.                              _________________________                                  December 13, 1993                              _________________________                    SELYA,  Circuit  Judge.     This  appeal  conveys   two                    SELYA,  Circuit  Judge.                            ______________          invitations.     First,  it  invites  us  to  exercise  appellate          jurisdiction  in connection with rulings on motions invoking Fed.          R. Crim. P.  35(b).1  Second, it  invites us to  require district          courts,  in  passing  upon  such  motions,  to  hold  evidentiary          hearings on demand.  We  accept the first invitation, but decline          the second.          I.  BACKGROUND          I.  BACKGROUND                    A jury found defendant-appellant Willie McAndrews, also          known  as  Willie  Wilson,  guilty  of  violating  21  U.S.C.              841(a)(1), 841(b)(1)(A), and 846.   Using the 1989 edition of the          federal  sentencing  guidelines,  the  district  court  sentenced          appellant to 125 months in prison.                    In  the aftermath of his sentence, appellant cooperated          with federal authorities.   Consequently, the government  filed a          timely sentence  reduction motion  under Rule  35(b).   Appellant                                        ____________________               1The  rule was  rewritten as part  of the  Sentencing Reform          Act, effective November 1, 1987, and was further amended in 1991.          See Fed.  R.  Crim. P.  35 advisory  committee's notes.   In  its          ___          current incarnation, the rule provides in pertinent part:                    The court,  on motion of the  Government made                    within one year  after the imposition  of the                    sentence, may reduce a sentence  to reflect a                    defendant's      subsequent,      substantial                    assistance    in    the    investigation   or                    prosecution   of  another   person  who   has                    committed an  offense .  . .  .   The court's                    authority  to  reduce a  sentence  under this                    subsection includes  the authority  to reduce                    such   sentence  to   a   level  below   that                    established by statute as a minimum sentence.          Fed. R. Crim. P. 35(b).                                          2          requested  an evidentiary  hearing on  the motion.   Following  a          lengthy  continuance   designed  to  permit  a   better  informed          assessment of the fruits of appellant's cooperation, the district          court eschewed an evidentiary hearing and, acting on the parties'          written   submissions,    granted   the    government's   motion.          Dissatisfied with the extent of  the reduction   the court sliced          29 months from the sentence    McAndrews appeals.  We affirm.          II.  APPELLATE JURISDICTION          II.  APPELLATE JURISDICTION                    We deal first with the jurisdictional quandary.  It has          two aspects.  We treat them sequentially.                              A.  The Departure Analogy.                              A.  The Departure Analogy.                                  _____________________                    It is settled  that a criminal defendant  cannot ground          an appeal on the sentencing court's discretionary decision not to          depart below the guideline  sentencing range.  See, e.g.,  United                                                         ___  ____   ______          States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113          ______    ______                                _____ ______          S. Ct. 224  (1992); United States  v. Hilton,  946 F.2d 955,  957                              _____________     ______          (1st Cir. 1991); United  States v. Romolo,  937 F.2d 20, 22  (1st                           ______________    ______          Cir.  1991).2    In  the  same  vein,  if  the  sentencing  court          affirmatively  exercises its discretion  and departs downward, no          appeal will  lie on behalf  of the  benefitted defendant  "merely          because  [he]  is  dissatisfied with  the  quantification  of the                                        ____________________               2An exception  applies  when the  sentencing court's  ruling          results from a  mistake of law.   See, e.g., Amparo, 961  F.2d at                                            ___  ____  ______          292; Hilton, 946  F.2d at 957. Thus,  "appellate jurisdiction may               ______          attach when  it appears that  the failure to depart  stemmed from          the sentencing  court's mistaken  impression that  it lacked  the          legal  authority  to  depart  or,  relatedly,  from  the  court's          misapprehension of the rules governing departure."  United States                                                              _____________          v.  Mariano, 983  F.2d  1150, 1153  (1st  Cir. 1993)  (collecting              _______          cases).                                          3          court's generosity."   United States  v. Pighetti, 898 F.2d  3, 4                                 _____________     ________          (1st Cir. 1990).  Phrased another way, the court of appeals lacks          jurisdiction  to  hear an  appeal  by a  party  in whose  favor a          departure decision operates.  See United States v. Fisher, 3 F.3d                                        ___ _____________    ______          456, 464  (1st Cir.  1993); United States  v. Gregorio,  956 F.2d                                      _____________     ________          341, 345 n.5 (1st Cir. 1992); Pighetti, 898 F.2d at 4.                                        ________                    The general rule  that departure decisions of  the type          discussed  above  are  nonappealable holds  true  in  the special          situation  of  downward departures  for  substantial assistance.3          Thus, neither  a district court's  refusal to depart  downward to          reward  a  defendant's substantial  assistance,  nor  the court's          refusal  to  grant as  generous  a  departure  as  a  cooperating          defendant  had  hoped,  will  normally  constitute  an appealable          event.   See  United States v.  Doe, 996  F.2d 606, 607  (2d Cir.                   ___  _____________     ___          1993);  United States  v. Correa,  995  F.2d 686,  687 (7th  Cir.                  _____________     ______          1993); United  States v.  Womack, 985 F.2d  395, 401  (8th Cir.),                 ______________     ______          cert. denied,  114 S. Ct.  276 (1993); United States  v. Mariano,          _____ ______                           _____________     _______          983 F.2d 1150, 1153-54 (1st Cir. 1993).                    In  this appeal, the  government attempts  to analogize          such "substantial  assistance" departures to  sentence reductions                                        ____________________               3Beyond  inviting   a  comparison  between   the  triggering          mechanisms, compare U.S.S.G.    5K1.1 with  U.S.S.G.   5K2.0,  it                      _______                   ____          would be supererogatory for us to rehearse today  the differences          between "substantial  assistance" and  "mitigating circumstances"          departures.  At any  rate, we have charted that  terrain in other          cases.  See, e.g., United States v. Mariano, 983 F.2d 1150, 1154-                  ___  ____  _____________    _______          55 (1st Cir. 1993); Romolo, 937 F.2d at 24-25.                              ______                                          4          under Rule 35(b)  for jurisdictional purposes.4   The analogy has          a certain superficial attraction  because both mechanisms operate          to  bring a defendant's  sentence below the  guideline sentencing          range  and  entail  similar  judicial inquiries,  compare,  e.g.,                                                            _______   ____          Mariano,  983  F.2d  at  1156  (discussing   factors  influencing          _______          departures under U.S.S.G.    5K1.1) with, e.g., United  States v.                                              ____  ____  ______________          Milken, 1992  U.S. Dist. LEXIS  11670 at *3-*5 (S.D.N.Y.  Aug. 5,          ______          1992)  (discussing   factors  influencing  Rule   35(b)  sentence          reductions).   But  on closer  perscrutation,  the analogy  fails          because  it overlooks  a jurisdictionally  significant difference          between downward departures and sentence reductions.                    The  right  of appeal  in  criminal cases  is  purely a          creature of statute, that is, a party "must come within the terms          of  [some] applicable  statute" in  order  to appeal.   Abney  v.                                                                  _____          United States, 431 U.S. 651, 656 (1977).   Prior to the advent of          _____________          guideline  sentencing, a  criminal  defendant,  in theory,  could          easily achieve this benchmark.   After all, the courts of appeals          have jurisdiction  over "appeals from all final  decisions of the          district courts," 28 U.S.C.   1291; and, in  a criminal case, the          imposition  of sentence constitutes  a final decision  within the          meaning of section 1291, see Parr v. United States, 351 U.S. 513,                                   ___ ____    _____________          518 (1956); Berman v. United States, 302 U.S. 211, 212-13 (1937).                      ______    _____________          Nevertheless,  the theoretical possibility  of an appeal  had few                                        ____________________               4Although  this  analogy  has  never before  been  carefully          probed  by a  federal appellate  court, it  appears to  have been          implicitly approved  in a  dictum contained  in United  States v.                                                          ______________          Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992).          _____                                          5          practical  consequences; since  judges  possessed extremely  wide          discretion and  were not required  to state reasons  for imposing          particular punishments, sentences were virtually unreviewable (so          long as  they  fell within  applicable  statutory limits).    See                                                                        ___          United States  v. Ruiz-Garcia,  886 F.2d 474,  476-77 &  n.4 (1st          _____________     ___________          Cir.  1989)  (discussing  historical   background  of  sentencing          appeals).                     Congress changed the calculus radically when it enacted          18 U.S.C.    3742 as part of  the Sentencing Reform Act  of 1984,          constituting it as the exclusive avenue through which a party can          appeal a sentence in a criminal case.5  The  statute alters prior          practice   in  two  salient  respects,  narrowing  the  types  of          sentences that  can be appealed  while simultaneously  augmenting          the grounds for appealing the remaining types of sentences.  See,                                                                       ___                                        ____________________               5The statute provides in pertinent part:                    A  defendant may file  a notice of  appeal in                    the district court for review of an otherwise                    final sentence if the sentence                           (1)  was  imposed in  violation  of                         law;                         (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) (1988).  The terms under which the government          may appeal a  sentence are substantially similar.   See id.  at                                                                ___ ___          3742(b).                                          6          e.g., S.  Rep. No. 225, 98th Cong., 2d Sess. (1983), reprinted in          ____                                                 ____________          1984  U.S.C.C.A.N. 3182, 3338 (stating that "section 3742 creates          for the first time a  comprehensive system of review of sentences          that  permits the appellate  process to focus  attention on those          sentences  whose review  is  crucial to  the  functioning of  the          sentencing guidelines system, while also providing adequate means          for correction of erroneous and clearly unreasonable sentences").                    In the post-guidelines era,  then, only sentences  that          meet  the  criteria  limned  in  section  3742  are  amenable  to          appellate review.   And  because neither  refusals to  depart nor          downward  departures result  in  a  sentence  "greater  than  the          sentence  specified in the applicable guideline range," 18 U.S.C.            3742(a)(3),  or otherwise  trigger the  prophylaxis of  section          3742(a), a defendant  ordinarily will not be able  to appeal from          such a decision, see Pighetti, 898 F.2d at 4.6                           ___ ________                    Rule  35(b)  is  a  horse  of  a  different  hue.    By          definition, a sentence must already have been imposed before Rule          35(b) can be  invoked and a sentence reduction  contemplated.  It          follows that the appealability of an order resolving a Rule 35(b)          motion  is not  controlled by  18 U.S.C.    3742 because  such an          order   is  not,  properly   speaking,  a  sentence.7     Rather,                                        ____________________               6This  statement is,  of course,  subject  to the  exception          previously mentioned.   See supra note 2.   We see no  reason why                                  ___ _____          the same exception should not apply if, and to the extent that, a          mistake  of law materially and demonstrably influences the extent          of a departure decision.               7On  this point,  we differ  from  the position  adumbrated,          without analysis, in United States  v. Yesil, 991 F.2d 1527, 1531                               _____________     _____          n.4 (11th Cir. 1993).                                          7          appealability  in  such  circumstances, like  appealability  with          respect to the  disposition of virtually all  other post-judgment          motions, is governed by 28 U.S.C.   1291.  And an order resolving          a  Rule 35(b) motion  satisfies the preconditions  established by          section 1291, for entry of the order leaves nothing further to be          done.  See  United States v. Metropolitan Dist.  Comm'n, 847 F.2d                 ___  _____________    __________________________          12, 14 (1st Cir. 1988)  (elucidating "general rule" that an order          becomes final  and appealable when  a court resolves  a contested          matter, leaving nothing further to be done) (citing, inter  alia,                                                               _____  ____          Catlin v.  United States, 324  U.S. 229,  233 (1945)).   An order          ______     _____________          granting  or  denying a  Rule  35(b)  motion  is, thus,  a  final          decision for purposes of section 1291.                    Cast  in this  mold,  our  analysis  accords  with  the          general  principle, taken  for granted  in both our  criminal and          civil jurisprudence, that rulings disposing of motions which seek          to alter preexisting judgments are appealable.  See, e.g., United                                                          ___  ____  ______          States v.  Slade, 980 F.2d  27, 32 (1st Cir.  1992) (entertaining          ______     _____          appeal  from  denial  of  post-judgment  motion  to  present  new          evidence pursuant  to Fed. R.  Crim. P. 33); Fiore  v. Washington                                                       _____     __________          Cty. Community Mental Health Ctr., 960 F.2d 229, 232-33 (1st Cir.          _________________________________          1992)  (en  banc)  (discussing   appealability  of  post-judgment          motions in civil  cases; restating established rule  that denials          of  post-judgment motions  "are  appealable  separately from  the          appeal of the  underlying judgment"); United States  v. Distasio,                                                _____________     ________          820  F.2d 20,  22-24 (1st  Cir.  1987) (entertaining  appeal from          grant of sentence reduction motion  under former Rule 35(b)); see          _____                                                         ___                                          8          also cases cited infra p.12 (entertaining appeals from denials of          ____             _____                                 _______          sentence  reduction  motions  brought  pursuant  to  former  Rule          35(b)).                    For the  foregoing reasons, the  government's attempted          analogy between  downward departures  for substantial  assistance          and  sentence  reductions  is  unpersuasive  in  connection  with          appellate jurisdiction.    We  conclude  that,  even  in  an  era          dominated  by the  sentencing guidelines,  an  order granting  or          denying a timely motion for a sentence reduction, unlike  certain          analogous departure decisions, remains appealable.                               B.  Lack of Adverseness.                               B.  Lack of Adverseness                                   ___________________                    Perhaps   the   better   argument   against   appellate          jurisdiction in the  case of a granted Rule 35(b)  motion is that          the defendant, qua appellant, lacks "such a personal stake in the                         ___          outcome of the controversy as to assure that concrete adverseness          which sharpens the presentation of issues upon which the court so          largely depends."  Baker v. Carr,  369 U.S. 186, 204 (1962).   At                             _____    ____          least  in certain circumstances, a prevailing party cannot appeal          from an order or judgment entered in his favor.  See  Sierra Club                                                           ___  ___________          v. Marsh, 907 F.2d 210, 213  (1st Cir. 1990); In re Public  Serv.             _____                                      ___________________          Co., 898 F.2d  1, 2  (1st Cir.  1990); Bath Iron  Works Corp.  v.          ___                                    ______________________          Coulombe, 888  F.2d 179, 180  (1st Cir.  1989).   And, here,  the          ________          lower  court's order operated  in appellant's favor,  trimming 29          months  from  his  sentence.   It  is,  therefore, arguable  that          appellant,  having derived a  substantial benefit, should  not be          allowed to appeal from the ruling.                                          9                    The problem with  such an argument is  twofold.  First,          it is overly simplistic.  The key to the appealability of a final          order is  injury,  not  prevailing party  status.    See  Deposit                                                               ___  _______          Guaranty Nat'l Bk. v. Roper, 445 U.S. 326, 334 (1980) (explaining          __________________    _____          that "appeal may be  permitted from an adverse ruling  collateral          to the  judgment on the merits at the behest of the party who has          prevailed on the merits, so long as that party retains a stake in          the  appeal  satisfying  the  requirements  of  Art.  III").    A          prevailing party dissatisfied with the quantum of relief obtained             say, a  personal  injury plaintiff  who  receives a  favorable          liability finding but a paltry damage award   ordinarily can seek          appellate review.8  So it is here.                    Second, this court  has already repudiated the  lack of          adverseness   argument  in  an  almost  identical  context.    In          Distasio, we considered  the case  of a  criminal defendant  who,          ________          after  having  been granted  a  reduction  in  sentence under  an          earlier version of  Rule 35(b), sought to appeal  the adequacy of          the  reduction.   See  Distasio, 820  F.2d  at 22.    Although we                            ___  ________          vacated  the district  court's order  on a  different ground,  we          ruled squarely that "a criminal defendant may appeal the adequacy          of  sentence  reductions granted  pursuant  to Fed.  R.  Crim. P.          35(b)."  Id. at  24.  The recent amendments to  Rule 35(b) do not                   ___                                        ____________________               8We note that, if the law  were to the contrary in the  Rule          35(b)  environment,  a  district  court could  invariably  defeat          appellate  oversight of an otherwise  reviewable denial of a Rule          35(b) motion by,  for example, lopping one day  off a defendant's          sentence.                                          10          undermine  the rationale  on which  Distasio rests,9  and we  are                                              ________          bound  by it.   See,  e.g., Doughty  v. Underwriters  at Lloyd's,                          ___   ____  _______     _________________________          London, ___ F.3d ___, ___ (1st Cir. 1993) [No. 93-1174,  slip op.          ______          at 9] (discussing binding effect of prior panel opinions within a          circuit).                    We hold, therefore, that we have jurisdiction to hear a          timely  appeal in which a prevailing defendant complains that the          district  court acted too  grudgingly in dispensing  relief under          Rule 35(b).  This case fits within that jurisdictional enclave.          III.  THE MERITS          III.  THE MERITS                    Having   ascertained   the   existence   of   appellate          jurisdiction, the  merits  of  the appeal  need  not  detain  us.          Appellant's  flagship contention is that the district court erred          in  denying his  motion  for an  evidentiary  hearing and,  thus,          robbed him of  the opportunity to make a  more formidable showing          on the merits.  We are not persuaded.10                                          ____________________               9The current  version of  Rule 35(b),  applicable to  crimes          committed on or after November 1, 1987, differs in at least three          ways from  former Rule 35(b).   First, the  text of the  new rule          limits the  ground for relief  to "substantial assistance  in the          investigation  or prosecution of another person who has committed          an offense."   Second,  the new rule  adds a  "government motion"          requirement.  Finally,  in the latest version of  Rule 35(b), the          period within  which a Rule  35(b) motion  may be filed  has been          lengthened somewhat.   Nonetheless, the  essence of a  Rule 35(b)          determination     the  district  court's  discretionary  decision          whether  to reduce  a defendant's  sentence, and  if so,  to what          extent   remains intact.               10Appellant hints, but offers  no developed argumentation to          show,  that the sentence reduction granted  by the district court          is, in  fact,  too  niggardly.    That  approach  is,  therefore,          foreclosed.   See United States  v. Zannino, 895  F.2d 1, 17 (1st                        ___ _____________     _______          Cir.) (warning that  issues adverted to in  a perfunctory manner,          unaccompanied  by  developed  argumentation, are  waived),  cert.                                                                      _____                                          11                    In  this   endeavor,  appellant's  main  focus  is  his          insistence that  "without conducting an evidentiary  hearing, the          district court cannot  possibly be in a position  to evaluate the          full  nature  and   extent  of   [a  defendant's]   cooperation."          Appellant's  Brief  at  9.     We  flatly  reject  such  a  rigid          formulation.   A criminal defendant is not automatically entitled          to an evidentiary hearing on a pretrial or posttrial motion.  See                                                                        ___          United States v. McGill, ___  F.3d ___, ___ (1st Cir. 1993)  [No.          _____________    ______          93-1023, slip op. at 3] (collecting cases).                      We can envision no sound basis for exempting Rule 35(b)          motions from  the sweep  of this generality.   While  gauging the          extent  and value of a  defendant's assistance to the authorities          is  a delicate,  highly  nuanced  matter,  we  have  consistently          abjured  mandatory  evidentiary  hearings in  a  wide  variety of          equally  delicate, equally nuanced situations.  See, e.g., United                                                          ___  ____  ______          States v. Garcia,  954 F.2d 12, 19 (1st  Cir. 1992) (sentencing);          ______    ______          United States v.  Panitz, 907 F.2d 1267, 1273-74  (1st Cir. 1990)          _____________     ______          (outrageous  misconduct); United States v. O'Brien, 895 F.2d 810,                                    _____________    _______          817 (1st Cir. 1990) (motion for Nebbia hearing); United States v.                                          ______           _____________          Saade,   652  F.2d  1126,  1135-36  (1st  Cir.  1981)  (selective          _____          prosecution).   Tellingly, motions brought under earlier versions          of  Rule  35(b)  have  not been  thought  to  require evidentiary          hearings, or  even oral argument.   See, e.g.,   United States v.                                              ___  ____    _____________          DeCologero, 821  F.2d 39,  44 (1st Cir.  1987); United  States v.          __________                                      ______________          Heller, 797  F.2d 41, 42 (1st Cir.  1986); United States v. Foss,          ______                                     _____________    ____                                        ____________________          denied, 494 U.S. 1082 (1990).          ______                                          12          501 F.2d  522, 529 (1st Cir. 1974).  We conclude, therefore, that          a  district court  has  broad  discretion  to  craft  appropriate          procedures  for considering  Rule  35(b)  motions, including  the          discretion  to  grant  or  deny an  evidentiary  hearing.11   See                                                                        ___          United States  v. Winfield, 960  F.2d 970, 972 (11th  Cir. 1992);          _____________     ________          United States  v. Collins Spencer  Catch The Bear, 727  F.2d 759,          _____________     _______________________________          762 (8th Cir. 1984).                    Once it  is determined  that Rule  35(b) motions,  as a          class, do not demand special swaddling, appellant's assignment of          error founders.  We review  the district court's rulings granting          or denying  evidentiary  hearings  under  an  abuse-of-discretion          rubric.  See Garcia, 954 F.2d at  19; DeCologero, 821 F.2d at 44.                   ___ ______                   __________          Because  the trial  judge  is  steeped in  the  facts  and has  a          superior  vantage point  for assessing  motions of this  sort, we          will not overrule the  refusal to convene an  evidentiary hearing                                        ____________________               11Appellant  cites United  States v.  Yesil,  968 F.2d  1122                                  ______________     _____          (11th Cir. 1992), for the  proposition that a district court must          always  grant a requested evidentiary hearing when the government          moves for a  sentence reduction under Rule 35(b).   The case does          not bear the weight that appellant ascribes to it.  In  the first          place, the original opinion in Yesil has been superseded, and the                                         _____          court's revised opinion makes clear "that the decision whether or          not  to grant  an evidentiary  hearing [on  a Rule  35(b) motion]          generally is committed  to the [sentencing]  court's discretion."          United  States v.  Yesil, 991  F.2d 1527,  1531 (11th  Cir. 1993)          ______________     _____          (superseding earlier opinion).  In the second place, written plea          agreements  obligated the government in Yesil, upon completion of                                                  _____          the  defendants'   cooperation,  to   apprise  the   court  fully          concerning the nature and extent  of defendants' actions.  Id. at                                                                     ___          1532.   Because of  the language of  the plea  agreements, "[t]he          district court lost its usual discretion to determine  whether or          not to  grant a party's request for an  evidentiary hearing . . .          ."   Id.   In the case at  bar, the record does not show any plea               ___          agreement  between the  defendant and  the  prosecution.   Hence,          Yesil is inapposite.          _____                                          13          absent  a clear  showing  that the  court's  discretion has  been          misused.  Consequently, a party seeking an evidentiary hearing on          a   post-judgment  motion  must  carry  a  formidable  burden  of          persuasion.  See McGill, ___ F.3d at ___ [slip op. at 3-4].                       ___ ______                    McAndrews wholly  failed  to carry  this heavy  burden.          The government made  a detailed written  proffer to the  district          court, spelling out the facts referable to its sentence reduction          motion.  Appellant had a similar opportunity.  Yet, he offered no          specifics to contradict  the prosecution's proffer or  to suggest          material omissions.12   Beneath the rhetoric,  appellant's filing          evinced  little  more  than  the  hope  that,  should  a  hearing          eventuate, something helpful might emerge.  But more is exigible.          A  district court  need not  grant  an evidentiary  hearing on  a          motion  merely  because  a defendant's  hopes  spring  eternal or          because a defendant  wishes to mount a fishing  expedition.  See,                                                                       ___          e.g., DeCologero,  821 F.2d  at 44  (cautioning that  evidentiary          ____  __________          hearings  cannot be  provided  upon  demand, "at  the  whim of  a          suitor").                    The short of it is  that a criminal defendant who seeks          an evidentiary hearing on a motion must, at the very least, carry                                        ____________________               12At one point, appellant asserted that, in  addition to the          efforts that  the government  catalogued, he  also "provided  the          impetus for  two other individuals, Charlie Luna and Pedro Gomez,          to  commence  cooperation,"  and that  new  cases  were developed          because of this  information.  But  scrutiny of the  government's          proffer reveals complete agreement on  this point   and, thus, no          need for  an evidentiary hearing.   The fact that  the government          did not  identify Luna and  Gomez by name,  but referred to  them          merely as  "two other suspects,"  is a distinction bereft  of any          meaningful difference.                                          14          an entry-level burden  by making "a sufficient  threshold showing          that material facts  [are] in doubt or in dispute."   Panitz, 907                                                                ______          F.2d at 1173; see also  Franks  v. Delaware, 438 U.S. 154, 155-56                        ___ ____  ______     ________          (1978) (requiring "substantial preliminary showing" antecedent to          evidentiary hearing); Saade, 652 F.2d at 1135 (similar).  In this                                _____          instance,  appellant offered no persuasive reason to believe that          taking testimony would    or even might    be productive.   Thus,          the district court, in refusing  to grant an evidentiary hearing,          did not abuse its considerable discretion.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need  go  no  further.     We  hold  that  we  have          jurisdiction  to   consider  appellant's   complaint  anent   the          disposition of  his  Rule 35(b)  motion.   Having exercised  this          jurisdiction, however, we find  no error in the district  court's          order or in the procedure it employed.          Affirmed.          Affirmed.          ________                                          15
