                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 07-4125



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAVID MICHAEL WOODWARD,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (4:02-cr-00673-CWH-1)


Submitted:   August 3, 2007                 Decided:   August 23, 2007


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. William E. Day, Winston D. Holliday, Jr.,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David Michael Woodward appeals the district court’s order

granting the government’s Fed. R. Crim. P. 35(b) motion to reduce

his sentence.     Woodward argues, first, that the district court

abused its discretion in determining the extent of the departure by

considering   incorrect   information   and   matters   apart   from   his

cooperation and, second, that he should have received a more

substantial departure to offset the benefit his co-defendants

received from United States v. Booker, 543 U.S. 220 (2005).            We

affirm.

            Woodward pled guilty in 2003 to conspiracy to possess

oxycodone with intent to distribute, health care fraud, and money

laundering, offenses which arose from his medical practice as owner

and operator of a pain management center in Myrtle Beach, South

Carolina.     He subsequently testified at the trial of several

doctors who were his former employees.        At his first sentencing

hearing, the district court accepted the parties’ stipulation as to

the drug amount for which Woodward was accountable over the greater

amount recommended by the probation officer, and also reduced an

adjustment for vulnerable victims under U.S. Sentencing Guidelines

Manual § 3A1.1(b) (2002) from four levels to two levels.           These

changes reduced the total offense level from 43 to 39 and reduced




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the advisory guideline range from life imprisonment* to 262-327

months.    The court then granted the government’s motion for a

substantial assistance departure under U.S. Sentencing Guidelines

Manual § 5K1.1, p.s. (2002), and imposed a sentence of 180 months

imprisonment.

              In 2006, the government filed a Rule 35(b) motion for

reduction of sentence based on additional assistance Woodward had

provided since his sentencing.             At a hearing in January 2007, the

district court granted the government’s motion, departed downward

by an additional twenty-four months, and imposed a sentence of 156

months.       The court stated that, “[i]n our previous departure

downward, we started with the sentence of 720 months, 60 years, and

reduced that sentence to 180 months, which is 15 years.”               The court

stated that its practice was to “give a large departure downward

the   first    time   around   .   .   .    [a]nd   any   departures   downward

thereafter are not nearly as substantial.”                 The court further

stated:

           Generally, we look at co-defendants and we look at
      what they are facing and what they have received by way
      of departures downward.    In trying to be consistent
      therewith, the same may be expected here; but I don’t
      think the same treatment is warranted.     I do think,
      however,   that  some   reason   for  such   apparently
      inconsistent treatment should be stated for the record.




      *
      Because each count carried a statutory maximum of 240 months,
pursuant to USSG § 5G1.2(d), the guideline range became consecutive
sentences of 240 months for each count, or 720 months.

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           I, frankly, feel that Doctor Woodward’s involvement
      in this matter was entirely different from those of his
      co-defendants. He was the one that started this entire
      criminal endeavor. He was the one that put it together
      and made it work. He brought the others in.

           It’s obvious to me that none of these others are
      capable of doing what Doctor Woodward did nor, in my
      judgment, are they threats to do that. They were down on
      their luck, if you please. They were certainly not the
      most successful doctors around. He picked them, put them
      down there, put them on their feet and gave them a way to
      make money.

           I don’t think that we have to worry about those
      defendants. And I speak of the other doctors that were
      involved and the other personnel that were involved
      committing similar crimes.

           And for that reason, I have concluded in their cases
      that they should not be incarcerated for long periods of
      time. I have concluded in their cases that they do not
      have the wherewithal to write prescriptions for illegal
      drugs anymore not is it likely that they ever will.

           In the case of Dr. Woodward, I suspect strongly
      that, if I were to release him today, he would start
      another clinic such as the one in Myrtle Beach in short
      order. He’s capable of doing that, and I believe that he
      is at risk [to] do that.

           In this appeal, the first issue is the appealability of

the   district   court’s   order    granting   the    Rule   35(b)   motion.

“[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. 2006) (citing United States v. Pridgen, 64 F.3d

147, 149 (4th Cir. 1995)).         We lack “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

                                   - 4 -
application of the Guidelines.”           United States v. Hill, 70 F.3d

321, 324 (4th Cir. 1995).       However, if a defendant “alleg[es] that

his otherwise final sentence was imposed in violation of law he may

make that claim in appealing a ruling on a Rule 35(b) motion.”

Hartwell, 448 F.3d at 713.

           Woodward’s      claim   that   the    district       court    considered

incorrect information and erred in considering information other

than his cooperation amounts to a claim that he was sentenced in

violation of law. Therefore, we have jurisdiction over his appeal.

           Woodward     first      alleges      that     the     district      court

erroneously stated that his guideline range was initially 720

months, and thus the court “misstated the record in terms of where

the § 5K1.1 departure started from and why the Rule 35 reduction

should be limited.”     While Woodward is correct in saying that the

district court did not begin its departure at 720 months, it is not

clear from the record that the court meant to say that it departed

from 720 months to 180 months.         Rather, it appears that the court

stated correctly that, at the first sentencing hearing, Woodward’s

sentence   was   reduced    overall    from     720    months    to     180   months.

Although the court failed to explain the steps by which the

sentence was reduced, we are satisfied that any misstatement does

not establish that the court’s ruling on the Rule 35 motion

constituted a sentence in violation of law.




                                      - 5 -
           Woodward     also    asserts    that    the     court    abused   its

discretion by   making an unsupported distinction between him and

his   co-defendants,     thus    “creating        unwarranted       co-defendant

disparity . . . .”       Having heard the trial evidence, the court

assessed   Woodward’s    culpability      relative    to   his     co-defendants

differently than Woodward would have liked, but Woodward has not

established that the court relied on incorrect information.                  In a

related claim, Woodward contends that the court erred when it

considered factors apart from his assistance in deciding to give a

lesser departure than it did at the first sentencing.                  While we

have held that the district court may consider only the defendant’s

assistance in deciding how far it will depart downward to reward

the defendant, United States v. Pearce, 191 F.3d 488, 492 (4th Cir.

1999), several circuits have held the court may consider other

factors in limiting the extent of the departure.             United States v.

Neary, 183 F.3d 1196, 1198 (10th Cir. 1999); United States v.

Manella, 86 F.3d 201, 203-05 (11th Cir. 1996); United States v.

Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir. 1994).                Thus, the

sentencing court may not grant a substantial assistance departure

or augment such a departure based on factors other than assistance,

but it may consider other factors to limit the departure.                United

States v. Doe, 351 F.3d 929, 932-33 (9th Cir. 2003).

           In light of these authorities, we conclude that the

district court did not abuse its discretion or impose sentence in


                                   - 6 -
violation of law by referring to factors other than Woodward’s

assistance to explain the extent of its departure. Moreover, under

Pearce, Woodward’s claim that he should have received a greater

departure to give him a benefit from Booker is without merit.

           We therefore affirm the sentence imposed by the district

court.   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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