                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6831



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ANDRE FRANZ LINDSAY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (4:00-cr-00603-CWH-9)


Submitted:   October 31, 2007           Decided:    November 15, 2007


Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Joshua Snow Kendrick, JOSHUA    SNOW KENDRICK, PC, Columbia, South
Carolina, for Appellant.        Reginald I. Lloyd, United States
Attorney; Rose Mary Parham,      Assistant United States Attorney,
Florence, South Carolina, for   Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Andre Franz Lindsay appeals from the district court’s

order granting the Government’s Fed. R. Crim. P. 35(b) motion, but

imposing a zero-month departure.     On appeal, Lindsay argues that

the district court improperly considered his prior substantial

assistance, for which a departure had already been given, when

considering the Rule 35(b) motion.       The Government argues first

that this court lacks    jurisdiction to consider the extent of the

departure.     Further, the Government contends that the district

court erred in compelling the Government to file the Rule 35(b)

motion, absent any showing of bad faith or unconstitutional motive.

We affirm.

          “[A]ppeals    from   rulings   on   Rule    35(b)   motions   are

governed by 18 U.S.C. § 3742 [2000]. . . .”             United States v.

Hartwell, 448 F.3d 707, 712 (4th Cir.), cert. denied, 127 S. Ct.

328 (2006).    We do not have “jurisdiction to review the extent of

the district court’s downward departure, except in instances in

which the departure decision resulted in a sentence imposed in

violation of law or resulted from an incorrect application of the

Guidelines.”     United States v. Hill, 70 F.3d 321, 324 (4th Cir.

1995) (emphasis in original).     However, if a defendant “alleg[es]

that his otherwise final sentence was imposed in violation of law

. . . [h]e may make that claim in appealing a ruling on a Rule

35(b) motion.”    Hartwell, 448 F.3d at 713.         Lindsay’s claim that


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the district court erred in considering information other than his

post-sentence cooperation amounts to a claim that he was sentenced

in violation of law.     Therefore, we have jurisdiction to hear his

appeal.

            Turning to the merits of his appeal, Lindsay alleges that

the district court erroneously considered a prior substantial

assistance departure pursuant to U.S. Sentencing Guidelines Manual

§ 5K1.1 (2004), and his sentence as a whole, instead of focusing

only on his post-sentencing assistance. While the sentencing court

may not grant a substantial assistance departure, or augment such

a departure based on factors other than assistance, it may consider

other factors to limit the departure.         See United States v. Doe,

351 F.3d 929, 932-33 (9th Cir. 2003).        As such, the district court

did not impose a sentence in violation of law by referring to

factors other than Lindsay’s most recent assistance to explain why

it did not grant a greater departure.        Because this conclusion is

determinative     of   this   appeal,   we   decline   to   address   the

Government’s argument that it was improperly ordered to file the

Rule 35 motion.

            Based on the foregoing, we affirm the district court’s

judgment.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                                AFFIRMED



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