                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                 Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                  Argued June 12, 2012
                                 Decided March 19, 2013

                                          Before

                            WILLIAM J. BAUER, Circuit Judge

                            MICHAEL S. KANNE, Circuit Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

No. 12-1139

UNITED STATES OF AMERICA,                       Appeal from the United States District
     Plaintiff-Appellee,                        Court for the Eastern District of Wisconsin.

       v.                                       No. 10 CR 59

MAURICE McMURTRY,                               Rudolph T. Randa,
    Defendant-Appellant.                        Judge.

                                        ORDER

        Maurice McMurtry pleaded guilty to conspiracy to distribute heroin, 21 U.S.C.
§§ 846, 841(a)(1). Because the conspiracy had involved at least a kilogram and resulted in
the deaths of two customers who overdosed, McMurtry faced a statutory minimum prison
term of 20 years. See id. § 841(b)(1)(A)(i). But the government moved for a sentence below
that minimum based on McMurtry’s cooperation. See 18 U.S.C. § 3553(e). The district court
granted the motion and sentenced McMurtry to 157 months. On appeal he contends that
the court failed to address his argument that his cooperation warranted an even lower
sentence. Because we lack jurisdiction over a defendant’s challenge to a district court’s
exercise of discretion under § 3553(e), we dismiss the appeal.
No. 12-1139                                                                              Page 2

       For five years McMurtry sold heroin in Milwaukee, both directly and through
runners he supervised. Two men who bought heroin from his operation in 2008 overdosed
and died.

       McMurtry was arrested in 2010 and charged with conspiracy to distribute heroin,
21 U.S.C. § 846, 841(a)(1), and five counts of distribution, id. § 841(a)(1). The indictment
alleged that the conspiracy had involved at least a kilogram of heroin which led to death
from its use. By agreement McMurtry pleaded guilty to the conspiracy count, and the
government dismissed the distribution counts.

        At sentencing the district court calculated McMurtry’s imprisonment range as 262 to
327 months (with a statutory minimum of 240 months). But the government cited
McMurtry’s extensive cooperation in the investigation and prosecution of his
coconspirators in moving under 18 U.S.C. § 3553(e) for a sentence below the mandatory
minimum. The government recommended a prison term of 157 months, a 40-percent
reduction from the low end of the guidelines range. McMurtry argued instead for a
sentence of 110 months. He contended that the government had not explained how it
arrived at a 40-percent reduction and urged the court to adopt the system used by Judge
Adelman in United States v. McBride, 789 F. Supp. 2d 1024 (E.D. Wis. 2011). Under that
system, Judge Adelman evaluates a defendant’s cooperation in light of the five factors
listed in U.S.S.G. § 5K1.1. See McBride, 789 F. Supp. 2d at 1025. For each factor that is “fully
present,” Judge Adelman awards a reduction equivalent to lowering the defendant’s
offense level by two; for each factor present to a lesser degree, he effectively reduces the
offense level by one. Id. Using that system, McMurtry argued, his cooperation merited a 9-
level reduction, equivalent to an imprisonment range of 110 to 137 months. He asked for a
sentence at the low end of that range. McMurtry also called his mother to testify about his
newfound maturity.

     After discussing the seriousness of the drug conspiracy and the damage it had
wrought, the district court addressed McMurtry’s cooperation:

              The last positive, however, is your cooperation. That’s the Government’s
       motion. 5K1 motion. . . . And I’m going to grant the motion because there is
       enough here. [The prosecutor] has clearly indicated, and the motion itself
       indicates, that you’ve been very helpful to the Government. And the Court will
       consider that a positive. What level—what level of strength is that? How
       positive is that? Well, it depends upon the attitude which you brought to the
       cooperation. Every criminal—if I was sitting where you are, if I was in the
       position you are, and I had some information on somebody and said look, if
       you—if you give us some information I can recommend to the Judge that he cut
No. 12-1139                                                                                  Page 3

      your sentence. I’ll say well, yeah, I’ll do that. Now I would do it—the initial
      impulse is I would do it because it’s going to help me. But what’s important,
      what makes it more positive, is if it’s done with the right attitude. That is, do it
      because it’s just simply the right thing to do. And this runs counter to what your
      life is about.

              I’m going to give you the benefit of the doubt. I’m going to give you the
      benefit of the doubt by saying—or agreeing with your mother relative to your
      new maturity, that you’re a different person. That by this cooperation, is the first
      step that you’re taking to iron out the path that your mother has said—your
      mother said everybody who has matured takes a different path. That this path
      is being altered. That you’re going down a different one. And the seriousness
      of the offense is—as much as I’ve done the analysis and concluded the way I
      have relative to your history and characteristics—in other words, the profile that
      you present to me—I’m going to grant the Government’s motion. . . .

The judge failed to specify the length of McMurtry’s sentence, and McMurtry’s counsel,
Brian Mullins, asked for clarification:

      MR. MULLINS: . . . Just to clarify—I might have not heard—but I heard the
      Court say it was granting the Government’s motion to—

      THE COURT: Recommendation.

      MR. MULLINS: I’m sorry. I didn’t hear a specific sentence.

      THE COURT: 157 was the recommendation of the Government.

      MR. MULLINS: Okay. So it’s adopting the government’s recommendation.

      THE COURT: Any other questions?

The court never addressed McMurtry’s argument that Judge Adelman’s alternative method
should be used to quantify his cooperation.

      On appeal McMurtry makes only one argument. He contends that the district court
was required to explain why it adopted the government’s recommendation rather than his
own. The government responds that the court adequately explained its sentence and that
157 months is reasonable.
No. 12-1139                                                                             Page 4

        But both parties fail to address the antecedent question whether we have
jurisdiction over McMurtry’s appellate claim. Although he packages that claim as a
procedural one, McMurtry’s argument at base amounts to a challenge to the way the
district court exercised its discretion under § 3553(e) to evaluate his cooperation. See United
States v. Johnson, 997 F.2d 248, 252 (7th Cir. 1993) (characterizing argument that limited size
of court’s reduction “was unreasonable” as one challenging extent of reduction); United
States v. Correa, 995 F.2d 686, 687 (7th Cir. 1993) (making same characterization of argument
that court imposed sentence “in violation of law” for believing it was good policy not to
give large reduction to drug dealers); United States v. Dean, 908 F.2d 215, 217 (7th Cir. 1990)
(making same characterization of argument that court “acted unreasonably” in not
granting greater reduction). And we do not have jurisdiction to review discretionary
refusals to reduce sentences so long as the district court appreciated its discretion to
sentence below a statutory minimum. See, e.g., United States v. Abimbola-Amoo, 390 F.3d 937,
938 (7th Cir. 2004); United States v. Zuniga-Lazaro, 388 F.3d 308, 313 (7th Cir. 2004); United
States v. Bonsu, 336 F.3d 582, 587 (7th Cir. 2003); United States v. Thomas, 11 F.3d 732, 735
(7th Cir. 1993). The court here demonstrated an understanding that it had the discretion to
disagree with the government’s evaluation of McMurtry’s cooperation. See Johnson, 997
F.2d at 252–53; United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003). The court imposed a
prison term of less than 240 months. Moreover, the judge referred to the government’s
position as a “[r]ecommendation” and explained that he needed to consider the “level of
strength” of the cooperation in reaching the proper sentence.

        The rule that we lack jurisdiction to review a contention about the stinginess of a
reduction below a statutory minimum under § 3553(e) is longstanding. See 18 U.S.C.
§ 3742(a); United States v. Spann, 682 F.3d 565, 566 (7th Cir. 2012); Thomas, 11 F.3d at 735;
United States v. Shaffer, 993 F.2d 625, 628–29 (7th Cir. 1993); Dean, 908 F.2d at 217–18. As we
recently held, this rule survives United States v. Booker, 543 U.S. 220 (2005). Spann, 682 F.3d
at 566 (labeling as frivolous challenge to extent of sentence reduction under § 3553(e)). In
reaching this conclusion, we noted that we previously concluded in the context of
reductions under Federal Rule of Criminal Procedure 35(b) that Booker did not alter our
limited jurisdiction under 18 U.S.C. § 3742(a). Spann, 682 F.3d at 566; see United States v.
McGee, 508 F.3d 442, 444–45 (7th Cir. 2007) (concluding that challenging extent of sentence
reduction under Rule 35(b) would be frivolous); see also United States v. Chapman, 532 F.3d
625, 628 (7th Cir. 2008) (appellate courts lack jurisdiction over claims regarding extent of
reduction under Rule 35(b)); United States v. Parker, 543 F.3d 790, 792 (6th Cir. 2008) (same);
United States v. Haskins, 479 F.3d 955, 957 (8th Cir. 2007) (same); McKnight, 448 F.3d at 238
(same). We then reasoned that, because there is “no principled basis to distinguish sentence
reductions given under Rule 35(b) from those given under § 3553(e),” Booker likewise did
No. 12-1139                                                                              Page 5

not expand this court’s jurisdiction to hear defendants’ claims contesting the extent of
reductions under § 3553(e). Spann, 682 F.3d at 566.

        Spann reserves judgment on whether we may review a claim that a district judge
undervalued a defendant’s cooperation in granting a motion under U.S.S.G. § 5K1.1 in a
case in which the bottom of the guidelines imprisonment range was not set by a statutory
minimum. Id. at 566 n.1. Two circuits have reached conflicting conclusions on this question,
though the practical effect of their different approaches seems minimal. Compare United
States v. Anonymous Defendant, 629 F.3d 68, 73–75 (1st Cir. 2010) (concluding that,
post-Booker, appeals courts have jurisdiction over such claims), with United States v. Berni,
439 F.3d 990, 992–93 (8th Cir. 2006) (reaching opposite conclusion, though examining
district court’s assessment of defendant’s cooperation as part of review of sentence’s
reasonableness). But we need not resolve this issue here. The bottom of McMurtry’s
imprisonment range was 22 months greater than the statutory minimum, but only
§ 3553(e), not § 5K1.1, gave the district court power to reduce McMurtry’s sentence below
240 months. See Melendez v. United States, 518 U.S. 120, 125–27 (1996); United States v.
McMutuary, 217 F.3d 477, 487 (7th Cir. 2000); United States v. Gabbard, 586 F.3d 1046, 1049
(6th Cir. 2009); United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008). And as we held
in Spann, appellate courts do not have jurisdiction over claims regarding the extent to
which a district court exercises that power.

       One other point bears mentioning: the government’s discussion of the substantive
reasonableness of McMurtry’s prison term is unnecessary. McMurtry does not raise a claim
attacking the substantive reasonableness of his sentence, and even if he had, such a claim
would be frivolous. When relying on § 3553(e) as authority to sentence a defendant below a
mandatory minimum, a district court may not reduce the sentence based on factors other
than the defendant’s cooperation. E.g., United States v. Johnson, 580 F.3d 666, 673
(7th Cir. 2009); United States v. Winebarger, 664 F.3d 388, 396 (3d Cir. 2011); United States v.
Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009); United States v. Burns, 577 F.3d 887, 894
(8th Cir. 2009) (en banc). And without authority to review the way the district court valued
that cooperation, we would have no basis to assail the reasonableness of the sentence.

                                                                                 DISMISSED.




       WILLIAMS, Circuit Judge, concurring. I believe that we have jurisdiction to consider
this appeal because McMurtry’s argument—that the district court failed to consider or
address his principal non-frivolous argument concerning the McBride sentencing
No. 12-1139                                                                               Page 6

method—is procedural. See United States v. Chapman, 532 F.3d 625, 628 (7th Cir. 2008).
McMurtry’s appellate brief argues repeatedly that the district court did not exercise its
discretion at all, not that the district court substantively erred in its exercise. (See Br. at 9
(district court “did not exercise its discretion”), 10 (“the defendant is entitled to insist that
the judge exercise discretion”), 11 (“the district court did not exercise its discretion because
it did not address McMurtry’s alternative [McBride] method for evaluating the value of his
assistance”).) McMurtry’s brief relies heavily on United States v. Cunningham, 429 F.3d 673
(7th Cir. 2005), which found that the district court procedurally erred by “pass[ing] over in
silence the principal argument made by the defendant even though the argument was not
so weak as not to merit discussion.” Id. at 679. (See Br. at 8, 10.) Most importantly, his brief
expressly acknowledges that if the district court had actually considered his McBride
argument and nonetheless arrived substantively at the same sentence, there would be no
basis for appeal. (See Br. at 10-11.) And McMurtry’s counsel repeatedly emphasized this
procedural point at oral argument. In my view, these factors distinguish this case from the
cases (Johnson, Correa, Dean) relied upon by the majority.

        Nonetheless, I agree with the effective outcome of the appeal’s dismissal because I
believe McMurtry’s argument about procedural error is without merit. Though the district
court did not specifically reference the McBride sentencing method, the essence of
McMurtry’s argument was that only the McBride method accurately reflected the strength
of his cooperation, and the district court directly and adequately addressed the strength of
McMurtry’s cooperation. I therefore concur.
