                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-3606
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Edward Earl Williams,                  *
                                       *
            Appellant.                 *
                                  ___________

                                 Submitted: November 16, 2009
                                     Filed: December 30, 2009
                                  ___________


Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

       Edward Earl Williams appeals from the district court’s1 order granting the
government’s motion for a 12-month sentence reduction. We dismiss for lack of
jurisdiction.




      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
                                          I.

       In 2003, Williams pled guilty to one count of conspiracy to distribute marijuana
in violation of 21 U.S.C. §§ 841 and 846, and was sentenced to 262 months
imprisonment. In 2004, Williams provided assistance to the government in an
unrelated case. Based on this assistance, Williams’s sentence was reduced to 130
months under Federal Rule of Criminal Procedure 35(b).2 In 2007, Williams again
cooperated with the government by testifying in an unrelated murder trial. On April
9, 2008, William D. Massey, counsel for Williams, sent an email to Pat Harris, the
attorney for the government. Massey requested a sentence reduction for Williams that
adequately reflected the “magnitude of the assistance” Williams had provided the
government in the 2007 murder case. Massey advised Harris, “we trust your judgment
and will respect and appreciate your decision.” On October 2, 2008, Harris responded
and indicated that if Massey did not pursue a higher reduction, the government would
move for a 12-month sentence reduction. Harris noted that Williams “got a very
generous reduction” for his assistance in 2004.

      On October 10, 2008, the government moved for the 12-month sentence
reduction pursuant to Federal Rule of Criminal Procedure 35(b). Attached to this
motion was a certificate of service indicating that on October 10, 2008, the motion had
been mailed to Massey. On October 14, 2008, Massey sent Williams a letter advising
him of the government’s decision to request the 12-month reduction, stating, “As the
decision about whether to file the Rule 35 in the first place is solely the
[government’s], it appears we don’t have a lot of choice. I want your thoughts though.
Please either call or write.” The record does not reflect any response from Williams.
On October 20, 2008, the district court granted the government’s motion—without a

      2
       When a defendant provides “substantial assistance” to the government, a court
may reduce the defendant’s sentence upon request by the government. See Fed. R.
Crim. P. 35(b).


                                          -2-
hearing—and reduced Williams’s sentence by 12 months. Massey’s office informed
Williams of the district court’s order in a letter dated October 22, 2008. Williams
brings this appeal.

                                           II.

       On appeal, Williams contends that the district court imposed the 12-month
sentence reduction in violation of law because (1) he was denied an opportunity to be
heard in response to the government’s Rule 35(b) motion, and (2) the district court’s
sentence reduction did not adequately reflect the substantial assistance he provided to
the government. This court is without jurisdiction to review Rule 35(b) sentences
unless one of four criteria are met under 18 U.S.C. § 3742(a). United States v.
Haskins, 479 F.3d 955, 957 (8th Cir. 2007) (per curiam) (holding that jurisdiction over
an appeal of a Rule 35(b) sentence is governed by 18 U.S.C. § 3742(a), not the general
grant of jurisdiction under 28 U.S.C. § 1291). These four criteria are: (1) the sentence
was imposed in violation of law, (2) the sentence was imposed using an incorrect
application of the sentencing guidelines, (3) the sentence is greater than the applicable
guidelines range, or (4) the sentence is imposed for an offense without a sentencing
guideline and is plainly unreasonable. 18 U.S.C. § 3742(a)(1)-(4).

       Williams only argues one of these four criteria—that the sentence was imposed
in violation of law. However, Williams’s claims that the reduction was imposed in
violation of law are without merit. This court has never held that a Rule 35(b)
defendant has the right to an opportunity to be heard.3 Additionally, “[a]bsent an


      3
        Notably, the record belies Williams’s claim that he did not have an opportunity
to be heard. The record is replete with evidence that both Williams and Massey were
fully informed that the government would, and did, request a 12-month reduction.
The evidence includes: (1) the April 9, 2008, and October 2, 2008, email exchanges
between Harris and Massey that referenced the sentence reduction, (2) the October 14,
2008, letter from Massey informing Williams of the government’s decision to seek a
12-month reduction, and (3) the certificate of service for the government’s Rule 35(b)
                                           -3-
unconstitutional motive, the extent to which a district court exercises its discretionary
authority to depart downward is not subject to review.” United States v. Sykes, 356
F.3d 863, 865 (8th Cir. 2004) (holding that a defendant’s claim that the district court
should have further reduced his sentence based on the government’s rule 35(b) motion
was unreviewable). Because Williams’s claims do not satisfy any of the criteria listed
in 18 U.S.C. § 3742(a), we conclude that they are unreviewable by this court. See
United States v. Coppedge, 135 F.3d 598, 599 (8th Cir. 1998) (per curiam)
(determining that a challenge to the extent of a sentence reduction upon the
government’s Rule 35(b) motion was unreviewable because the appeal was not based
on any criteria listed in § 3742(a)).

                                          III.

      Accordingly, we dismiss this appeal for lack of jurisdiction.
                     ______________________________




motion indicating that Massey had, in fact, been served with the motion on October
10, 2008—10 days prior to the issuance of the district court’s order. Despite all of this
notice, the record does not reflect that either Williams or Massey sought to file a
response or requested an evidentiary hearing on the matter.
                                           -4-
