                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2006

USA v. Cooper
Precedential or Non-Precedential: Precedential

Docket No. 05-1447




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                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 05-1447


        UNITED STATES OF AMERICA

                        v.

                LYDIA COOPER,
                          Appellant


  On Appeal from the United States District Court
      for the Middle District of Pennsylvania
         D.C. Criminal No. 03-cr-00333-3
           (Honorable James M. Munley)


             Argued October 19, 2005

       Before: SCIRICA, Chief Judge,
VAN ANTWERPEN and ALDISERT, Circuit Judges

            (Filed: February 14, 2006)
JAMES R. ELLIOTT, ESQUIRE (ARGUED)
902 West Lackawanna Avenue
Scranton, Pennsylvania 18504
      Attorney for Appellant

THEODORE B. SMITH, III, ESQUIRE (ARGUED)
Office of United States Attorney
220 Federal Building and Courthouse
228 Walnut Street, P.O. Box 11754
Harrisburg, Pennsylvania 17108

WILLIAM S. HOUSER, ESQUIRE
Office of United States Attorney
235 North Washington Avenue, Suite 311
P.O. Box 309
Scranton, Pennsylvania 18503
       Attorneys for Appellee


                OPINION OF THE COURT


SCIRICA, Chief Judge.

      Defendant Lydia Cooper contends her criminal sentence
was unreasonable under United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005). Cooper also challenges the District
Court’s failure to depart downward under U.S.S.G. § 4A1.3. At


                             2
issue is the imposition of criminal sentences post-Booker. We
will affirm.
                                I.
       On September 2, 2004, Cooper pleaded guilty to
conspiracy to distribute and possess with intent to deliver
cocaine base (crack) in violation of 21 U.S.C. § 846. Cooper
had two prior convictions in 1989 — conspiracy to deliver .39
grams of cocaine and conspiracy to possess with intent to
deliver 22 packets of cocaine. The District Court classified
Cooper as a career offender, placing her at an offense level of 29
and a criminal history category of VI, or a guidelines range of
151 to 181 months.1
        Cooper was sentenced on January 31, 2005, three weeks
after the Supreme Court issued its opinion in United States v.
Booker, which held that the federal sentencing guidelines are
advisory. 125 S. Ct. at 764–65. After Booker, “[t]he district
courts, while not bound to apply the Guidelines, must consult
those Guidelines and take them into account when sentencing.”
Id. at 767. As before Booker, district courts must impose
sentences that promote the “sentencing goals” listed in 18
U.S.C. § 3553(a).2 Id. at 764–65.


   1
   Cooper objected to her classification as a career offender at
sentencing, but does not challenge that classification here.
       2
     Pre-guidelines sentences were based on the facts of the
crime, the criminal history of the defendant, the defendant’s

                                3
        At sentencing, the District Court granted the
government’s motion for a reduction under U.S.S.G § 5K1.1 in
light of her substantial assistance to the government. The court
concluded Cooper’s assistance warranted a seven-level
departure, resulting in an advisory guidelines range of 84 to 105
months.
        Cooper requested a further departure of one level under
U.S.S.G. § 4A1.3, contending her assigned criminal history
category significantly over-represented the seriousness of her
actual criminal past. She asked the court to consider several
facts, including the 15-year lapse between her predicate and
prior offenses and the small amount of drugs involved in her
prior crimes. Cooper pointed out she received relatively short,
concurrent sentences for the prior offenses — 6 to 23 months
incarceration and two years probation — and was paroled after
serving the minimum sentence.



personal characteristics, the applicable statutory law, and
general penological goals and principles. These are all found in
18 U.S.C. §§ 3553(a)(1), (2), and (3). To this mix, Congress
added sentencing guidelines (§ 3553(a)(4)) that were specific,
detailed, quantitative, and mandatory. That the guidelines are
now advisory provides some play in the joints of the sentencing
scheme. Nonetheless, district judges are still asked to resolve
the tension between broad principles, on the one hand, and
highly specific guidelines, on the other. A broader sentencing
guidelines regime would harmonize these two considerations.

                               4
       The District Court denied Cooper’s motion. The court
noted the “seriousness” of Cooper’s three drug trafficking
crimes and found it significant that she committed the second of
the two prior offenses while on bail for the first offense.
Accordingly, the court found an additional departure was not
warranted “under all of the circumstances.”
        Having determined the applicable advisory guidelines
range, the court turned to Cooper’s sentence. Cooper argued an
84-month sentence was appropriate in light of her previously
asserted mitigating circumstances. The District Court rejected
Cooper’s argument and sentenced her to 105 months in prison.
The court first listed the § 3553(a) factors, finding Cooper’s
sentence “satisfies the purposes set forth in 18 U.S.C. 3553(a)”
and was “reasonable in light of these considerations.”
Addressing Cooper’s request for a lighter sentence, the court
stated:
       But the nature of the offense is so serious. This
       was a very serious drug trafficking business,
       which the Defendant was an integral part of it
       [sic], and I cannot ignore the effects of her
       involvement in this case on the public and all the
       users through the years. I don’t feel, if I didn’t
       impose a sentence that I intend to impose, I would
       be fulfilling my obligations as a Judge. . . .
       It is a serious offense. Let me tell you, you were
       part and parcel of it for a long period of time, and
       you were treated very well at the sentencing. I

                                5
       think that the Government’s motion was more
       than generous. I was convinced by Mr. Elliott
       [defense counsel] to keep it within that. I had full
       intentions of giving you more time here today.
                                II.
                                A.
        In United States v. Booker, the Supreme Court directed
appellate courts to review sentences for reasonableness, stating
this review applied “across the board.” 125 S. Ct. at 764–67
(noting the Sentencing Reform Act “continues to provide for
appeals from sentencing decisions (irrespective of whether the
trial judge sentences within or outside the Guidelines range)”).
According to the Court, our review is guided by the factors set
forth in 18 U.S.C. § 3553(a), the same factors the Court directed
district judges to consider when sentencing defendants under the
advisory guidelines. Id. at 764–65.
      We have jurisdiction to review Cooper’s sentence for
reasonableness under 18 U.S.C. § 3742(a)(1) (authorizing the
appeal of sentences “imposed in violation of law”).3 The


   3
    18 U.S.C. § 3742(a) provides:
       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

                                6
Supreme Court did not explain the jurisdictional basis for the
reasonableness review it mandated in Booker. We believe an
unreasonable sentence is “imposed in violation of law” under 18
U.S.C. § 3742(a)(1).4 See United States v. Frokjer, 415 F.3d


               there is no sentencing guideline and is
               plainly unreasonable.
   4
     Although we rely solely on 18 U.S.C. § 3742(a)(1) as the
basis for our jurisdiction to review for reasonableness, we note
there also might be jurisdiction under 28 U.S.C. § 1291. This
Court has regularly taken jurisdiction over sentencing appeals
under both statutes. See, e.g., United States v. Graham, 72 F.3d
352, 358 n.8 (3d Cir. 1995) (“[W]e believe our jurisdiction to
review [defendant’s] sentence lies pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a)(1) because [defendant] has alleged that
his sentence was imposed in violation of law, that is, in
violation of his constitutional rights.”); United States v. King, 21
F.3d 1302, 1304 (3d Cir. 1994) (“We have jurisdiction over
[defendant’s] appeal from the district court’s judgment of
sentence pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. §
1291.”).
       Section 1291 provides: “courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district
courts . . . .” Sentences imposed in a criminal case are “final
decisions.” Berman v. United States, 302 U.S. 211, 212–13
(1937); United States v. Moskow, 588 F.2d 882, 889 (3d Cir.
1978). Prior to the implementation of the Sentencing Reform
Act of 1984 (SRA), § 1291 provided the basis for our review of
sentences. See Moskow, 588 F.2d at 889 (finding jurisdiction
under § 1291 to hear the appeal of a judgment of sentence
entered after a guilty plea). Although this review was generally
limited to “illegality or abuse of discretion,” see, e.g., United

                                 7
865, 875 n.3 (8th Cir. 2005) (“After Booker, . . . we will review
a defendant’s argument that even a sentence within the advisory
guideline range is ‘unreasonable’ with regard to the factors set
forth in 18 U.S.C. § 3553(a), and an unreasonable sentence


States v. Fessler, 453 F.2d 953, 954 (3d Cir. 1972), this practice
was based not on a lack of jurisdiction, but on the wide
discretion of sentencing courts which made reversal nearly
impossible. United States v. McAndrews, 12 F.3d 273, 276–77
(1st Cir. 1993) (“[T]he theoretical possibility of an appeal had
few 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 also Koon v. United States, 518 U.S. 81, 96
(1996) (“Before the Guidelines system, a federal criminal
sentence within statutory limits was, for all practical purposes,
not reviewable on appeal.”) (emphasis added); United States v.
Ready, 82 F.3d 551, 555 (2d Cir. 1996) (recognizing a pre-SRA
right to appeal a sentence under § 1291, but noting the
reviewable issues were limited); S. Rep. 98-225, at 150 (1983),
as reprinted in 1984 U.S.C.C.A.N. 3182, 3333 (“The reason
given for unavailability of appellate review of sentences under
current law is the fact that sentencing judges have traditionally
had almost absolute discretion to impose any sentence legally
available in a particular case.”). After the adoption of the SRA,
judges no longer exercised near unfettered discretion.
Therefore, the narrow pre-SRA review under a different
sentencing regime may provide uncertain guidance. In any
event, Booker states sentencing judges must “take account of
the Guidelines together with other sentencing goals.” 125 S. Ct.
738, 764 (2005).

                                8
would be imposed ‘in violation of law’ within the meaning of
§ 3742(a).”) (citation omitted); United States v. Martinez, No.
05-12706, -- F.3d --, 2006 WL 39541, at *3 (11th Cir. Jan. 9,
2006) (“Although the Supreme Court in Booker did not identify
which provision of § 3742(a) provided for appeals for
‘unreasonableness,’ we conclude that a post-Booker appeal
based on the ‘unreasonableness’ of a sentence, whether within
or outside the advisory guidelines range, is an appeal asserting
that the sentence was imposed in violation of law pursuant to §
3742(a)(1).”). Accordingly, we have jurisdiction under §
3742(a)(1) to review sentences for reasonableness.5


    5
     Although only the Courts of Appeals for the Eighth and
Eleventh Circuits have specifically addressed jurisdiction,
United States v. Frokjer, 415 F.3d 865, 875 n.3 (8th Cir. 2005);
United States v. Martinez, No. 05-12706, -- F.3d --, 2006 WL
39541, at *3 (11th Cir. Jan. 9, 2006), other courts similarly
apply the reasonableness standard of review. United States v.
Benedetti, 433 F.3d 111, 120 (1st Cir. 2005) (contemplating
review of “all sentences imposed post-Booker . . . for
reasonableness based on the factors enumerated in section
3553(a)”); United States v. Crosby, 397 F.3d 103, 114–16 (2d
Cir. 2005) (describing appellate review of both within- and
outside-guidelines sentences for reasonableness after Booker),
abrogated on other grounds by United States v. Fagans, 406
F.3d 138, 142 (2d Cir. 2005); United States v. Hughes, 401 F.3d
540, 546–47 (4th Cir. 2005) (noting after Booker, district courts
must consider the § 3553(a) factors and calculate the appropriate
guidelines range, and the imposed sentence will be affirmed “as
long as it is within the statutorily prescribed range . . . and is
reasonable”) (citations omitted); United States v. Mares, 402
F.3d 511, 519–20 (5th Cir. 2005) (holding sentences will be

                                9
       Our concurring colleague would hold Booker sets forth
the standard of review only for the limited number of sentences
reviewable under §§ 3742(a) and (b) pre-Booker, and concludes
we do not have jurisdiction to review Cooper’s sentence. He
notes that in United States v. Denardi, 892 F.2d 269, 271–72
(3d Cir. 1989), we declined to hold a sentencing judge’s
inadequate consideration of the § 3553(a) factors “converts an
unappealable exercise of discretion into an error of law that may
be reviewed under § 3742(a)(1).” We based our decision in
Denardi on a finding of Congressional intent to foreclose
appellate review of discretionary decisions not to depart.



reviewed for reasonableness post-Booker, including those
imposed “within a properly calculated Guideline range”); United
States v. McBride, 434 F.3d 470, 476–77 (6th Cir. 2006)
(holding the court would “review . . . a defendant’s claim that
his sentence is excessive based on the district court’s
unreasonable analysis of the section 3553(a) factors in their
totality” based on “Booker’s mandate”); United States v.
Mykytiuk, 415 F.3d 606, 607–08 (7th Cir. 2005) (holding
Booker requires “that we measure each defendant’s sentence
against the factors set forth in § 3553(a),” including “those
sentences that fall within a properly calculated Guidelines
range”); United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.
2006) (holding Booker “mandate[d]” review of “ultimate”
sentences for reasonableness); United States v.
Morales-Chaires, 430 F.3d 1124, 1128 (10th Cir. 2005)
(applying the reasonableness standard to sentences imposed
post-Booker); United States v. Price, 409 F.3d 436, 442 (D.C.
Cir. 2005) (“Under Booker, we review the District Court’s
sentence to ensure that it is reasonable in light of the sentencing
factors that Congress specified in 18 U.S.C. § 3553(a).”).

                                10
Denardi, 892 F.2d at 271–72. But in enacting §§ 3742(a)(1)
and (b)(1), Congress could not have contemplated that the
sentencing scheme it adopted would later be declared advisory.
In light of the advisory sentencing guidelines scheme, we do not
find an affirmative Congressional intent to foreclose
reasonableness review, and accordingly we do not believe that
our holding conflicts with Denardi.
                               B.
       To determine if the court acted reasonably in imposing
the resulting sentence, we must first be satisfied the court
exercised its discretion by considering the relevant factors.
United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.
2005). The relevant factors are:
       (1) the nature and circumstances of the offense
       and the history and characteristics of the
       defendant;
       (2) the need for the sentence imposed--
               (A) to reflect the seriousness of the
               offense, to promote respect for the law,
               and to provide just punishment for the
               offense;
               (B) to afford adequate deterrence to
               criminal conduct;
               (C) to protect the public from further
               crimes of the defendant; and
               (D) to provide the defendant with needed
               educational or vocational training, medical
               care, or other correctional treatment in the
               most effective manner;
       (3) the kinds of sentences available;



                               11
       (4) the kinds of sentence and the sentencing range
       established for . . . the applicable category of
       offense committed by the applicable category of
       defendant as set forth in the guidelines . . . .
18 U.S.C. § 3553(a). The record must demonstrate the trial
court gave meaningful consideration to the § 3553(a) factors.
See United States v. Williams, 425 F.3d 478, 480 (7th Cir.
2005). The court need not discuss every argument made by a
litigant if an argument is clearly without merit. Cunningham,
429 F.3d at 678. Nor must a court discuss and make findings as
to each of the § 3553(a) factors if the record makes clear the
court took the factors into account in sentencing. Williams, 425
F.3d at 480; see United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005) (holding “nothing in Booker or elsewhere
requires the district court to state on the record that it has
explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors”). Nor will we require district
judges to routinely state by rote that they have read the Booker
decision or that they know the sentencing guidelines are now
advisory.
        On the other hand, a rote statement of the § 3553(a)
factors should not suffice if at sentencing either the defendant
or the prosecution properly raises “a ground of recognized legal
merit (provided it has a factual basis)” and the court fails to
address it. Cunningham, 429 F.3d at 679. As the Court of
Appeals for the Seventh Circuit explained, “we have to satisfy
ourselves, before we can conclude that the judge did not abuse
his discretion, that he exercised his discretion, that is, that he




                               12
considered the factors relevant to that exercise.”6 Id.; cf. United
States v. Johnson, 388 F.3d 96, 101 (3d Cir. 2004) (holding
“there is no way to review [a court’s] exercise of discretion” if
it “does not articulate the reasons underlying its decision” and
the court’s reasons “are not otherwise apparent from the
record”) (quoting Becker v. ARCO Chem. Co., 207 F.3d 176,
180–81 (3d Cir. 2000)).
       At least one court has held a sentencing judge is
presumed to have considered all of the § 3553(a) factors if a
sentence is imposed within the applicable guidelines range.
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). We
decline to follow this approach. Although a within-guidelines
sentence demonstrates the court considered one of the § 3553(a)
factors — namely, the guidelines range itself, 18 U.S.C. §
3553(a)(4) — it does not show the court considered the other
standards reflected in that section, assuming they were raised.
        In consideration of the § 3553(a) factors, a trial court
must calculate the correct guidelines range applicable to a
defendant’s particular circumstances. 18 U.S.C. § 3553(a)(4);
United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005)
(citing United States v. Crosby, 397 F.3d 103, 111–12 (2nd Cir.
2005)). As before Booker, the standard of proof under the
guidelines for sentencing facts continues to be preponderance of


   6
    On this issue, we disagree with the decision of the Court of
Appeals for the Eleventh Circuit in United States v. Scott, where
the court held a district court’s statement that it considered both
the defendant’s arguments and the § 3553(a) factors at
sentencing is by itself sufficient for Booker purposes. 426 F.3d
1324, 1329–30 (11th Cir. 2005); see also United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005).

                                13
the evidence.7 See United States v. Mack, 229 F.3d 226, 232–35
(3d Cir. 2000); see also Mares, 402 F.3d at 519 (holding
sentencing facts need only be determined by a preponderance of
the evidence after Booker); McReynolds v. United States, 397
F.3d 479, 481 (7th Cir. 2005) (same).
        In addition to ensuring a trial court considered the §
3553(a) factors, we must also ascertain whether those factors
were reasonably applied to the circumstances of the case. In
doing so, we apply a deferential standard, the trial court being
in the best position to determine the appropriate sentence in
light of the particular circumstances of the case.8 See United
States v. Bennett, 161 F.3d 171, 196 (3d Cir. 1998) (recognizing
a district court’s decision not to adjust a sentence is entitled to
“great deference” because “the sentencing judge is in a unique


      7
    We do not address here the standard of proof for finding a
separate crime under relevant law.
  8
   We are well aware that sentencing judges normally state and
resolve sentencing issues from the bench while sentencing
proceeding is underway. As we have previously observed,
“‘[d]istrict judges normally deliver their decisions on sentencing
from the bench, just after, and sometimes in the course of, the
presentation of numerous arguments and even evidence as to the
permissible range and proper sentence. These often spontaneous
remarks are addressed primarily to the case at hand and are
unlikely to be a perfect or complete statement of all of the
surrounding law.’” Rios v. Wiley, 201 F.3d 257, 268 (3d Cir.
2000) (quoting United States v. Saldana, 109 F.3d 100, 104 (1st
Cir. 1997)). Although Rios was superseded by statute on other
grounds, see United States v. Saintville, 218 F.3d 246, 249 (3d
Cir. 2000), our observation was not affected.

                                14
position to evaluate a defendant’s acceptance of responsibility”)
(quotations omitted); Marshall v. Lansing, 839 F.2d 933, 948
(3d Cir. 1988) (observing that district courts have historically
been given broad discretion in imposing the proper sentence in
criminal trials). Under such circumstances, deference should be
given. As the Court of Appeals for the Seventh Circuit recently
held,
        [t]he question is not how we ourselves would
        have resolved the factors identified as relevant by
        section 3553(a) . . . nor what sentence we
        ourselves ultimately might have decided to
        impose on the defendant. We are not sentencing
        judges. Rather, what we must decide is whether
        the district judge imposed the sentence he or she
        did for reasons that are logical and consistent with
        the factors set forth in section 3553(a).
Williams, 425 F.3d at 481.9


    9
      The standards of review set forth here — including the
recognition of a district court’s broad discretion and the
requirement that a court actually exercise that discretion — are
not unique to sentencing decisions. These standards are applied
whenever we review decisions committed to the discretion of
another entity, including when we review the admissibility of
evidence in criminal cases, see, e.g., United States v. Johnson,
388 F.3d 96, 101 (3d Cir. 2004) (reviewing the admission of
prior conviction evidence for abuse of discretion but finding
error when the trial court failed to consider the admissibility of
the evidence under Fed. R. Evid. 609(a)(1)), orders on civil
discovery motions, see, e.g., Stich v. United States, 730 F.2d
115, 117–18 (3d Cir. 1984) (“The substantial discretion granted

                                15
        While we review for reasonableness whether a sentence
lies within or outside the applicable guidelines range, see
Booker, 125 S. Ct. at 765, 766 (noting appellate courts will
apply the reasonableness standard “across the board” and
“irrespective of whether the trial judge sentences within or
outside the Guidelines range”), it is less likely that a within-
guidelines sentence, as opposed to an outside-guidelines
sentence, will be unreasonable. The advisory guidelines range
is itself one of the § 3553(a) factors, 18 U.S.C. § 3553(a)(4),
and continues to play an integral part in sentencing decisions.
Booker, 125 S. Ct. at 767. In Booker, the Court explicitly
directed district courts to continue to “take account of the
Guidelines together with other sentencing goals.” Id. at 764.
“The Guidelines remain an essential tool in creating a fair and
uniform sentencing regime across the country,” United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and provide a
natural starting point for the determination of the appropriate
level of punishment for criminal conduct.10 See United States


to trial courts on discovery motions should not be lightly
disturbed, even if the reviewing court’s notions of fairness
would have led it to a different result.”) (citation omitted), and
agency actions, see, e.g., NRDC v. EPA, 790 F.2d 289, 297 (3d
Cir. 1986) (holding an agency’s “decision [must be] based on a
consideration of the relevant factors”) (quotation omitted);
Harberson v. NLRB, 810 F.2d 977, 984 (10th Cir. 1987) (“It is
an elementary principle of administrative law that an
administrative agency must provide reasons for its decisions.”).
   10
     The federal sentencing guidelines represent the collective
determination of three governmental bodies — Congress, the
Judiciary, and the Sentencing Commission — as to the
appropriate punishments for a wide range of criminal conduct.

                               16
v. Talley, 431 F.3d 784, 787–88 (11th Cir. 2005) (discussing the
“central” role of the guidelines after Booker). The § 3553(a)
factors were intended to guide the Sentencing Commission in its
formulation of sentencing guidelines, 28 U.S.C. §§
991(b)(1)(A), 994(b), (g), (m); United States v. Frank, 864 F.2d
992, 1011 (3d Cir. 1988); Scott, 426 F.3d at 1330 n.5.
        Although a within-guidelines range sentence is more
likely to be reasonable than one that lies outside the advisory
guidelines range, a within-guidelines sentence is not necessarily
reasonable per se. Otherwise, as several Courts of Appeals have
concluded, we would come close to restoring the mandatory
nature of the guidelines excised in Booker. See Crosby, 397
F.3d at 115 (“Indeed, such per se rules would risk being
invalidated as contrary to the Supreme Court’s holding in
Booker/Fanfan, because they would effectively re-institute
mandatory adherence to the Guidelines.”); United States v.
Webb, 403 F.3d 373, 385 n.9 (6th Cir. 2005) (same); Mykytiuk,


See S. Rep. 98-225, at 39 (1983), as reprinted in 1984
U.S.C.C.A.N. 3182, 3222 (declaring Congress’s intent to
“assure that sentences are fair both to the offender and to
society, and that such fairness is reflected both in the individual
case and in the pattern of sentences in all federal criminal
cases”); S. Rep. 98-225, at 151 (1983), as reprinted in 1984
U.S.C.C.A.N. 3182, 3334 (anticipating that case law developed
from appellate review of outside-guidelines sentences “will
assist the Sentencing Commission in refining the sentencing
guidelines as the need arises”); see also United States v.
Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005) (“The Sentencing
Guidelines represent at this point eighteen years’ worth of
careful consideration of the proper sentence for federal
offenses.”).

                                17
415 F.3d at 607 (same); Talley, 431 F.3d at 787 (same). Nor do
we find it necessary, as did the Court of Appeals for the Seventh
Circuit in United States v. Mykytiuk, to adopt a rebuttable
presumption of reasonableness for within-guidelines sentences.
See Mykytiuk, 415 F.3d at 608. Appellants already bear the
burden of proving the unreasonableness of sentences on appeal.
See Tally, 431 F.3d at 788 (“[T]he party who challenges the
sentence bears the burden of establishing that the sentence is
unreasonable in the light of both that record and the factors in
section 3553(a).”).
       To sum up, appellants have the burden of demonstrating
unreasonableness. A sentence that falls within the guidelines
range is more likely to be reasonable than one outside the
guidelines range. There are no magic words that a district judge
must invoke when sentencing, but the record should demonstrate
that the court considered the § 3553(a) factors and any
sentencing grounds properly raised by the parties which have
recognized legal merit and factual support in the record.
                               C.
       In this case, the District Court imposed a sentence at the
highest end of the guidelines range, 105 months. Cooper has not
met her burden on appeal of proving the sentence was
unreasonable.11 The court addressed the § 3553(a) factors and

        11
          We note the Seventh Circuit’s observation that
“reasonableness is a range, not a point.” United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). “If the judge
could, without abusing his discretion, have ruled in the
defendant’s favor, the defendant is entitled to insist that the
judge exercise discretion, though he cannot complain if the
exercise goes against him.” Id.

                               18
found “that the sentence to be imposed is reasonable in light of
these considerations.” More importantly, the District Court
appropriately addressed Cooper’s argument that her sentence
was excessive considering her minimal criminal history
compared to those of other, similarly sentenced defendants. The
court rejected this contention, citing the serious nature of
Cooper’s crimes, the effect of her conduct on the public, and
that she was “treated well” at her prior sentencing hearing. It is
reasonable to conclude that her criminal history category
correctly reflected the actual seriousness of her conduct.
        Taken as a whole, the record shows the court adequately
considered the § 3553(a) factors and reasonably applied them to
the circumstances presented in Cooper’s particular case. We
find the District Court’s judgment was reasonable under Booker.
                               III.
        Cooper also contends the District Court erred when it
failed to grant her motion to depart downward. She again
argues her criminal history category over-represented the
seriousness of her past crimes. Pre-Booker, we declined to
review discretionary decisions to deny departure, unless for
allegation of legal error, United States v. Ruiz, 536 U.S. 622,
626–28 (2002); Denardi, 892 F.2d at 271–72, nor did we review
appeals by defendants challenging the extent of a downward
departure, United States v. Khalil, 132 F.3d 897, 898 (3d Cir.
1997) (citing United States v. Parker, 902 F.2d 221, 222 (3d
Cir.1990)); accord United States v. Vizcarra-Angulo, 904 F.2d
22, 22–23 (9th Cir. 1990) (finding no jurisdiction where the
district court departed downward for government assistance but
did not further depart in consideration of defendant’s assertion
that he was “functionally illiterate, unsophisticated, and was
victimized by his coconspirators”).

                               19
        The foundation for these holdings lay in our conclusion
that 18 U.S.C. §§ 3742(a) and (b) reflect Congress’s intent to
foreclose review of a sentencing court’s decision not to depart.
See Denardi, 892 F.2d at 271–72 (“The portion of the statute
providing for appeals by a defendant (18 U.S.C. § 3742) simply
does not authorize” an appeal from a discretionary refusal not
to depart.) (footnote omitted); Parker, 902 F.2d at 222 (“The
circumstances in which a defendant may appeal a sentence are
set forth in 18 U.S.C. § 3742(a) and do not include situations in
which a defendant is seeking an enhanced downward
departure.”); S. Rep. 98-225, at 150 (1983), as reprinted in
1984 U.S.C.C.A.N. 3182, 3333 (“This section establishes a
limited practice of appellate review of sentences in the federal
criminal justice system, . . . by confining it to [the situations
enumerated in §§ 3742(a) and (b)].”). The Supreme Court has
concurred. Ruiz, 536 U.S. at 626–28.
         We conclude the Supreme Court’s decision in Booker
does not compel us to reverse this precedent. In its remedial
opinion in Booker, the Court excised § 3742(e) and § 3553(b)
from the federal sentencing guidelines. 125 S. Ct. at 764. The
former provision established standards of review in sentencing
appeals, while the latter made the federal guidelines mandatory.
But the Court explicitly left intact §§ 3742(a) and (b). Id. at 765
(citing the existence of §§ 3742(a) and (b) to support its holding
that the Sentencing Reform Act “continues to provide for
appeals from sentencing decisions (irrespective of whether the
trial judge sentences within or outside the Guidelines range)”).
Nothing in Booker addresses or overrules the Court’s precedent
in Ruiz, which recognized the limitations effected by §§ 3742(a)
and (b) on a defendant’s right to appeal decisions not to depart.
Ruiz, 536 U.S. at 626–28. We follow the Courts of Appeals for
the First, Sixth, Eighth, Tenth, and Eleventh Circuits in

                                20
declining to review, after Booker, a district court’s decision to
deny departure. See United States v. Burdi, 414 F.3d 216, 220
(1st Cir. 2005) (finding no jurisdiction to review a decision not
to depart after Booker); United States v. Puckett, 422 F.3d 340,
345 (6th Cir. 2005) (same); United States v. Frokjer, 415 F.3d
865, 874–75 (8th Cir. 2005) (“[W]e see no reason why Booker
— which left intact §§ 3742(a) and (b) — should alter our rule
that a district court’s discretionary decision not to depart
downward is unreviewable.”); United States v. Sierra-Castillo,
405 F.3d 932, 936 (10th Cir. 2005) (declining to review
decisions not to depart after Booker); United States v.
Winingear, 422 F.3d 1241, 1245–46 (11th Cir. 2005) (same).
                              IV.
       The judgment of sentence will be affirmed.




ALDISERT, Circuit Judge, Concurring and Dissenting.


       I am pleased to join in Parts I and III of the majority
opinion. I am also able to join those portions of Part II.B & C
in which the majority discusses how a district court should apply
the Sentencing Guidelines in conjunction with the factors listed
at 18 U.S.C. § 3553(a) and the standard of proof that a
sentencing judge should apply to sentencing facts. But I do not




                               21
agree that we have jurisdiction under 18 U.S.C. § 3742(a)(1)12
to review Cooper’s argument that the sentence imposed by the
District Court was unreasonable.

      It is beyond peradventure that Cooper’s three substantive
contentions – (1) that the court erred in denying her request for
a downward departure;13 (2) that the court did not adequately

   12
        18 U.S.C. § 3742(a) provides as follows:

Appeal by a defendant.—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 to the extent that the
               sentence includes a greater fine or term of
               imprisonment, probation, or supervised release
               than the maximum established in the guideline
               range, or includes a more limiting condition of
               probation or supervised release under section
               3563(b)(6) or (b)(11) than the maximum
               established in the guideline range; or
         (4)   was imposed for an offense for which there is no
               sentencing guideline and is plainly unreasonable.
   13
      I am in total agreement with the majority’s disposition in
Part III of Cooper’s appeal of a denial of her motion to depart
from the Guidelines’ recommended sentence. It is a cornerstone
of our § 3742(a) jurisprudence that we do not have jurisdiction

                               22
consider the § 3553(a) factors in conjunction with the advisory
Guidelines; and (3) that the sentence imposed by the court was
unreasonable under United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005) – do not implicate subsections (2), (3) and (4)
of § 3742(a). Thus, I agree that for this Court to have
jurisdiction to decide this appeal jurisdiction must lie in
subsection (1) of § 3742(a) on the theory that the sentence was
“imposed in violation of law.”

        My view regarding our jurisdiction under § 3742(a)(1) to
review a sentence within the Guidelines range can be succinctly
stated: (1) Booker did not expand the scope of our jurisdiction;
(2) the phrase “in violation of law,” as used in § 3742(a)(1), is
to be construed narrowly to encompass only demonstrable
constitutional or statutory violations, such as the denial of a
procedural right; (3) that a sentence may be unreasonable does
not mean that it was “imposed in violation of law” under §
3742(a)(1); and (4) accordingly, we only review for
reasonableness if we otherwise have jurisdiction under §
3742(a).

       The majority disagrees. It concludes that we have
jurisdiction to determine whether Cooper’s sentence is
unreasonable because any sentence that is unreasonable is
“imposed in violation of law” under § 3742(a)(1). This
expansive interpretation is plainly contrary to Congress’ intent
in promulgating § 3742(a)(1), ignores fundamental canons of
statutory construction, and flies in the face of what this Court
held in Denardi, 892 F.2d at 271-272.



to review a district court’s decision not to depart. See United
States v. Denardi, 892 F.2d 269, 271-272 (3d Cir. 1989).

                               23
       The majority’s reasoning that the Supreme Court
“mandated” appellate review in Booker is belied by the fact that
Booker did not discuss jurisdiction at all. Indeed, the Court
expressly declared that all portions of the Sentencing Reform
Act of 1984 (“SRA”), with the exception of two excised
provisions, remain intact. Booker, 125 S. Ct. at 764. Properly
read, Booker merely set forth a standard of review to apply for
sentencing appeals over which we otherwise have jurisdiction
under § 3742(a). Because I refuse to conflate our jurisdiction
with our standard of review, I respectfully dissent.

                               I.

       I begin my analysis with a statement of agreement with
the government’s summation of the law set forth in the
following dialogue at oral argument:

       GOVERNMENT: [U]nder the rubric of “imposed
       in violation of law,” I think what we’re looking at
       is [a sentence imposed] above the statutory
       maximum, or somehow structurally imposed in
       violation of the law.

              I think there are things a judge could do in
       imposing a sentence that would make it imposed
       in violation of the law, for instance, the
       Constitution of the United States, even though the
       sentence was ultimately within the guidelines
       range.

              So I’m not suggesting that the process has
       absolutely no part here. But I think it’s a very
       limited standard of review.

                               24
      THE COURT: So unreasonableness, in terms of
      the length of sentence, would never come to the
      point where it could cross the line into violation
      of law, that standing alone, assuming the
      guidelines are proper and it’s within the statutory
      maximum?

      GOVERNMENT: I agree

      THE COURT: You feel that could not happen?

      GOVERNMENT: That could not happen.
      Unreasonableness is a standard of review. It is
      not a statutory basis for the appeal and couldn’t
      be. The Supreme Court did not say one word
      about jurisdiction . . . in Booker. It talked about a
      standard of review.

      THE COURT: But Booker contemplated that
      reasonableness could be reviewed, didn’t it?

      GOVERNMENT: No, Booker contemplated that
      if a court of appeals has jurisdiction to review a
      sentence, it would review it for reasonableness.

Oral Arg. Trans. at 27-29.

      To support my agreement with the government, it now
becomes necessary to address the fundamentals of appellate
review of sentencing.

                               A.


                               25
        No constitutional right of appeal exists; the right to
appeal is based on statute alone. Abney v. United States, 431
U.S. 651, 656 (1977); see also McKane v. Durston, 153 U.S.
684, 687 (1894) (“A review by an appellate court on the final
judgment in a criminal case, however grave the offense of which
the accused is convicted, was not at common law, and is not
now, a necessary element of due process of law.”). Appeals as
of right in criminal cases were not permitted until 1889, and
even then this statutory right was limited to cases where the
sentence provided by law was death. Abney, 431 U.S. at 656
n.3. It was not until 1911 that Congress created a general right
of appeal for criminal defendants. Id.

       In 1984, Congress passed the Sentencing Reform Act of
1984, Pub. L. 98-473, Title II, §§ 211-238, 98 Stat. 1987 (1984).
The SRA instituted a complete overhaul of the sentencing
process, establishing comprehensive sentencing guidelines with
the goal of creating uniformity and fairness in sentencing. As
discussed above, the SRA provided several limited bases for
appellate review of sentences. See 18 U.S.C. § 3742(a).
Congress never intended to provide for unlimited review of
sentencing decisions. S. Rep. 98-225, at 154 (1983), as
reprinted in 1984 U.S.C.C.A.N. 3182, 3337 (“The Guidelines,
therefore, provide a practical basis for distinguishing the cases
where review is not needed from those where appeal would
most likely be frivolous.”); see also id. at 149, 1984
U.S.C.C.A.N. at 3332 (stating that § 3742 establishes “a limited
practice of appellate review of sentences”).

                               B.




                               26
        In Booker, the Court excised two sections from the SRA
as violative of the Sixth Amendment.14 It voided both 18 U.S.C.
§ 3553(b), which makes the Guidelines mandatory, and §
3742(e), which lays out the standards of review for the Courts
of Appeals. Booker, 125 S. Ct. at 764. By excising these
portions of the SRA, the Court (1) made the Guidelines advisory
and (2) replaced the standard of review provisions with an
implied one for “reasonableness,” a standard “consistent with
the appellate sentencing practice during the last two decades.”
Id. at 764-766.

        The Court made it unmistakably clear, however, that all
other provisions of the SRA, including § 3742(a), remain
untouched. Id. at 765 (“[T]he act continues to provide for
appeals from sentencing decisions (irrespective of whether the
trial judge sentences within or outside the Guidelines range in


   14
        The Court excised the provisions by stating:

         Application of these criteria indicates that we
         must sever and excise two specific statutory
         provisions: the provision that requires sentencing
         courts to impose a sentence within the applicable
         Guidelines range (in the absence of circumstances
         that justify a departure), see 18 U.S.C. §
         3553(b)(1) (Supp. 2004), and the provision that
         sets forth standards of review on appeal, including
         de novo review of departures from applicable
         Guidelines range, see § 3742 (e) (main ed. and
         Supp. 2004).

Booker, 125 S. Ct. at 764.

                                 27
the exercise of his discretionary power under § 3553(a)). See §
3742(a) (main ed.) (appeal by defendant); § 3742(b) (appeal by
Government).”); id at 764 (instructing that “the remainder of the
[SRA] ‘functions independently’”). The Court noted that the
“features of the remaining system, while not the system
Congress enacted, nonetheless continue to move sentencing in
Congress’ preferred direction.” Id. at 767 (emphasis added).
Based on this clear directive, I conclude that although §§
3553(b) & 3742(e) will no longer be followed, Booker did
nothing to expand our jurisdiction under § 3742(a)(1)–(4).

                               C.

       Although the Booker majority did not discuss the
meaning of “in violation of law,” as used at § 3742(a)(1), Justice
Scalia examined it at length in his dissent, without refutation
from the majority. Justice Scalia discussed the late, lamented §
3742(e)(1), in which the statutory language, “imposed in
violation of law,” tracks word-for-word the identical language
of § 3742(a)(1) – the very provision at issue here: “[Section
3742](e)(1) requires a court of appeals to determine whether a
sentence ‘was imposed in violation of law.’ Courts of appeals
had of course always done this.” Booker, 125 S. Ct. at 791 n.5
(Scalia, J., dissenting) (emphasis added; citation omitted).

       Justice Scalia then explained that “[b]efore the
Guidelines, federal appellate courts had little experience
reviewing sentences for anything but legal error,” and that
“‘well established doctrine . . . bars [appellate] review of the
exercise of sentencing discretion’” Id. at 791-792 (quoting
Dorszynski v. United States, 418 U.S. 424, 443 (1974)). He
then analyzed several Supreme Court decisions that limited


                               28
appellate review to those sentences imposed outside the
statutorily prescribed range. Id. at 792.

       I read Justice Scalia’s dissent to suggest that the
provision at issue today, § 3742(a)(1), merely codified the
jurisprudence that existed prior to the adoption of the SRA.
Under this jurisprudence, “once it is determined that a sentence
is within the limitations set forth in the statute under which it is
imposed, appellate review is at an end.” Dorszynski, 418 U.S.
at 431-432; see United States v. Adams, 759 F.2d 1099, 1112
(3d Cir. 1985) (“Generally, if the sentence falls within the
statutory maximum, the matter is not reviewable on appeal.”);
United States v. Felder, 706 F.2d 135, 137 (3d Cir. 1983) (“If a
sentence is within the statutory limitation and there is no defect
in the sentencing procedure, we do not interfere with the trial
court’s discretion as to the sentence imposed.”). Accordingly,
the majority’s insistence that unreasonableness triggers our
appellate jurisdiction runs counter to the Court’s teaching in
Dorszynski and the specific holdings of this Court in Adams and
Felder.

       To be sure, Justice Scalia’s analysis is set forth in a
dissenting opinion, but it nonetheless embodies the
jurisprudence of several Courts of Appeals, including our own.
See United States v. Colon, 884 F.2d 1550, 1555 (2d Cir. 1989)
(“Congress’s failure to provide appellate review of sentences
within the Guidelines correctly calculated was thus a conscious
decision consistent with its overall purpose.”); Denardi, 892
F.2d 269, 271 (3d Cir. 1989) (holding that “[t]he persuasive
analysis of [Colon] supports our conclusion” that § 3742(a)(1)
does not encompass all arguable claims of error in sentencing).
It must be noted that the Booker majority kept intact all the
provisions of § 3742(a) and did not suggest or imply that in

                                29
enacting the SRA Congress intended any interpretation of the §
3742(a)(1) jurisdictional exhortation, “imposed in violation of
law,” that would expand jurisdiction under this phrase beyond
that which existed prior to the SRA’s adoption. See United
States v. Hahn, 359 F.3d 1315, 1321 n.6 (10th Cir. 2004)
(“[Section] 3742(a)(1) manifests the congressional intent to
codify pre-1984 jurisdiction over sentencing appeals.”). To the
contrary, the polestar of the Court’s opinion in Booker is an
insistence, time and again, that, subject to constitutional
constraints, we must pay inerrant and unfailing fealty to the
intent of Congress when interpreting the SRA.15

                               II.




  15
      “[W]e must retain those portions of the [SRA] that are (1)
constitutionally valid, (2) capable of ‘functioning
independently,’ and (3) consistent with Congress’ basic
objectives in enacting the statute.” Booker, 125 S. Ct. at 764
(emphasis added; citations omitted). “[W]e have examined the
statute in depth to determine Congress’ likely intent in light of
today’s holding.” Id. at 767-768 (emphasis removed and
added). “We believe our inference [of reasonableness review to
be] a fair one linguistically, and one consistent with Congress’
intent to provide appellate review.” Id. at 766 (emphasis added).
“[These modifications are] more consistent with Congress’
likely intent in enacting the Sentencing Reform Act (1) to
preserve important elements of that system while severing and
excising two provisions (§§ 3553(b)(1) and 3742(e)) than (2) to
maintain all provisions of the Act and engraft today’s
constitutional requirement onto that statutory scheme.” Id. at
768 (emphasis added).

                               30
        “It is a cardinal principle of statutory construction that a
statute ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (quotation omitted). Applying this canon in United
States v. Colon, the Second Circuit explained why § 3742(a)(1)
cannot be read to encompass all arguable claims of error in
sentencing:

       Our examination of [the] claim begins with
       Section 3742(a)(1), which provides for appeals
       based on claims by a defendant that a sentence is
       “in violation of law.” This Subsection could of
       course be read broadly to allow appeals based on
       any arguable claim of error in sentencing,
       including a claim that a particular sentence is
       unreasonably high or low.         That reading,
       however, would make nonsense of Section 3742
       by rendering its other subsections utterly
       superfluous. Congress hardly needed to add
       subsections authorizing appeals that claim an
       incorrect application of the Guidelines, that
       challenge sentences outside the Guidelines, or that
       question the reasonableness of sentences for
       offenses not governed by the Guidelines, if
       Subsection (a)(1) authorizes appeals of all
       sentences based on any arguable claim of error.
       The structure and relationship of the various
       subsections of Section 3742 thus indicate that, as
       the Senate Report states, Congress intended to
       provide only “a limited practice of appellate
       review of sentences.” S. Rep. No. 225, 98th
       Cong., 2nd Sess. 149 (1983), reprinted in 1984

                                31
       U.S. Code Cong. & Admin. News 3182, 3332
       (hereinafter S. Rep. No. 225). Because a broad
       reading of Section 3742(a)(1) is untenable, the
       only sensible view of that provision is that it was
       largely intended to ensure that the appellate
       review previously available for claims that a
       sentence was in excess of the statutory maximum,
       was based on impermissible considerations, or
       was the result of some other demonstrable error of
       law, cf. United States v. Russell, 870 F.2d 18 (lst
       Cir. 1989) (sentencing judge may have been
       unaware of power to depart from Guidelines),
       would be retained.

Colon, 884 F.2d at 1553 (emphasis added).

       In Denardi, this Court agreed with the Second Circuit and
stated that we do not accept a reading of § 3742(a)(1) that
renders the other subsections “largely superfluous.” Denardi,
892 F.2d at 272. Speaking through Judge Seitz, we said:

       [W]e do not believe that 18 U.S.C. § 3553(b),
       (permitting a deviation from the guidelines under
       certain circumstances), when read with § 3553(a)
       (factors to be considered in imposing a sentence)
       converts an unappealable exercise of discretion
       into an error of law that may be reviewed under §
       3742(a)(1) in some amorphous circumstances. If
       such a result is desirable, it is for Congress to say
       so.

       We conclude that § 3742(a) does not authorize an
       appeal in the present circumstances. The

                                32
       persuasive analysis of United States v. Colon, 884
       F.2d 1550 (2d Cir. 1989) supports our conclusion.

Denardi, 892 F.2d at 272.

       This interpretation has echoed beyond the Courts of
Appeals for the Third and Second Circuits. See United States v.
Porter, 909 F.2d 789, 794 (4th Cir. 1990) (“18 U.S.C. § 3742(a)
also does not provide for appellate review of a sentencing
court’s discretion in setting a sentence anywhere within a
properly calculated sentencing range.”); United States v.
Guerrero, 894 F.2d 261, 267 (7th Cir. 1990); United States v.
Garcia, 919 F.2d 1478, 1482 (10th Cir. 1990). Moreover, in
subsequent cases we have re-affirmed our position stated in
Denardi. For example, in United States v. Torres, we said that
“where the sentence was lawfully imposed and is within the
applicable Guideline range, we lack jurisdiction to review the
sentence.” 251 F.3d 138, 151-152 (3d Cir. 2001) (citing United
States v. Graham, 72 F.3d 352, 358 n.8 (3d Cir. 1995)).

        Although couched in a discussion of appellate
jurisdiction to review a district court’s failure to downward
depart, Denardi and Colon stand for the straightforward
proposition that § 3742(a)(1) cannot be read in a manner that
renders superfluous the other subsections of § 3742(a). The
majority ignores this principle by converting “any arguable
claim of error in sentencing, including a claim that a particular
sentence is unreasonably high or low,” Colon, 884 F.2d at 1553,
into a violation of law for purposes of § 3742(a)(1).16


  16
     The majority even recognizes that its holding is in tension
with Denardi. Maj. Op. at 10-11. It also hints that we can no

                               33
                               III.

      The majority implies that, in Booker, the Supreme Court
promulgated new substantive law both by altering the plain
language of § 3742(a) and by transmogrifying the “review for



longer rely, as we did in Denardi, upon Congress’ intent in
enacting § 3742(a)(1). See id. at 11 (“[I]n enacting §§ 3742
(a)(1) and (b)(1), Congress could not have contemplated that the
sentencing scheme it adopted would later be declared
advisory.”). I cannot agree. Congress’ inability to anticipate
that the Guidelines would later be declared advisory because of
constitutional concerns does not give any court the power and
authority to ignore the original intent of Congress and to adopt
a court-manufactured alteration of that original intent. This
Court cannot say that the intent of Congress as expressed in
enacting the SRA in 1984, and as interpreted in 1989, the year
Denardi was handed down, somehow becomes something
different in 2006 simply because Booker declared a portion of
the sentencing Guidelines to be unconstitutional. Moreover,
although it is only a hint, it takes the form of a classic non
sequitur to the extent that the majority suggests that we may rely
on the interpretation of congressional intent in Denardi in
concluding that we do not have jurisdiction to review a failure
to depart downwards, see Maj. Op. at 20, but that we should
ignore that interpretation when considering whether we have
jurisdiction to review sentences for reasonableness. With
utmost kindness and gentility I am constrained to say that my
brothers of the majority may not have it both ways: Denardi, and
its formulation of congressional intent, either governs our
interpretation of § 3742(a)(1) or it does not.


                               34
reasonableness” standard into the appellate jurisdiction
requirements. I do not agree.

        We must never equate a court’s statement of a standard
of review with a congressional enactment of jurisdiction. No
court, including the United States Supreme Court, has the power
to promulgate a declaration of jurisdiction. That remains the
exclusive province of Congress within the boundaries set forth
by the Constitution. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (“Federal courts are courts of
limited jurisdiction. They possess only that power authorized by
Constitution and statute, which is not to be expanded by judicial
decree. It is to be presumed that a cause lies outside this limited
jurisdiction.”) (citations omitted).17

        Our task in interpreting a statute is to “give every word
some operative effect,” Cooper Indus., Inc. v. Aviall Serv., Inc.,
543 U.S. 157, 125 S. Ct. 577, 582-584 (2004), and my refusal to
read into Booker a modification of the applicable jurisdictional


    17
        To be sure, a change in substantive law can affect our
jurisdiction when Congress defines our jurisdiction by reference
to substantive law, as § 3742(a)(1) arguably does. This
principle, however, is inapplicable here because the Supreme
Court has never held that an unreasonable sentence violates the
Constitution or any statute. Furthermore, Congress has made
it plain that § 3742(a)(1) does not encompass all errors in the
application of the Guidelines. Accordingly, the mere failure to
satisfy the standard of review, formerly set forth at § 3742(e),
standing alone, is not sufficient to provide us with jurisdiction.
Indeed, both before Booker and after, we do not even reach the
standard of review unless we otherwise have jurisdiction.

                                35
standards under § 3742(a) comports with Congress’ plain
wording of the statute, our inability to prescribe our own
appellate jurisdiction, and the Supreme Court’s indication that
the non-excised portions of the SRA “remain valid.” Booker,
125 S. Ct. at 764.

       The Supreme Court itself stated that the SRA “continues
to provide for appeals from the sentencing decisions [under §
3742(a)].” Booker, 125 S. Ct. at 765 (emphasis added). The
Court’s use of the operative word “continues” suggests that the
appellate jurisdiction arising under § 3742(a) does not change
after Booker. The primary change, therefore, is that courts are
now to apply a reasonableness standard to guide their review of
cases otherwise arising under our § 3742(a) jurisdiction.

        In light of Booker, I believe that the proper way to
interpret our jurisdiction under § 3742(a)(1) is to continue the
pre-Booker reading. We therefore only have jurisdiction to
review cases under § 3742(a)(1) if “[(i)] a sentence was in
excess of the statutory maximum, [(ii)] was based on
impermissible considerations, or [(iii)] was the result of some
other demonstrable error of law.” Colon, 884 F.2d at 1553. A
demonstrable error of law would not encompass an abuse of
discretion or an unreasonable sentence, but rather an abuse such
as the denial of a procedural right. See United States v. Tucker,
892 F.2d 8, 10 (1st Cir. 1989) (holding that “violation of law”
connotes a limited circumstance such as denial of a procedural
right, not an abuse of discretion); see, e.g., Booker, 125 S. Ct. at
756-757 (indicating that a mandatory application of the
Guidelines would be a violation of the Sixth Amendment).
Indeed, if we were supposed to consider the reasonableness of
sentences or whether a district court acted within its discretion,
Congress would have so indicated. See Tucker, 892 F.2d at 10

                                36
(“If Congress meant ‘abuse of discretion,’ it would have said
so.”); Denardi, 892 F.2d at 272.18

                             IV.

        With the foregoing precepts in mind, I turn to the proper
disposition of the pending appeal. Having concluded that
unreasonableness, even if shown, cannot vest this Court with
jurisdiction, I must determine whether any of Cooper’s other
legal claims provide this Court with jurisdiction. See Ruiz, 536
U.S. at 628 (upholding the Ninth Circuit’s decision to review the
merits of a case to determine whether it had jurisdiction under
§ 3742(a)(1)). If they do, then this Court can engage in the




   18
      The majority’s failure to adhere to the plain wording of §
3742(a)(1) is further evidenced by its disposition of the case.
By relying on § 3742(a)(1) for our jurisdiction, the majority
implies that any unreasonable sentence is “imposed in violation
of the law.” Even assuming that this is correct – which I dispute
– we would only have jurisdiction if we did, in fact, conclude
that the sentence is unreasonable. Cf. Drakes v. Zimski, 240
F.3d 246, 247 (3d Cir. 2001) (observing that when jurisdiction
depends on petitioner’s success on the merits, we dismiss for
lack of jurisdiction if petitioner’s argument fails on the merits).
Here, the majority concludes that Cooper’s sentence is
reasonable, but it nonetheless affirms the District Court rather
than dismissing the appeal for lack of jurisdiction. By affirming
rather than dismissing, the majority is exercising jurisdiction
over an appeal from a sentence that was reasonable. Surely, the
majority cannot mean to say that a reasonable sentence is also
“imposed in violation of law” under § 3742(a)(1).

                                37
reasonableness review set forth in Booker. If not, we lack
jurisdiction and the appeal must be dismissed.

       In her brief, Cooper principally argues that her sentence
violated Booker because the District Court failed to properly
consider the § 3553(a) factors in conjunction with the
Guidelines’ recommended sentence. If she is correct, then this
Court would have jurisdiction under § 3742(a)(1) because §
3553(a) mandates consideration of these factors. See Booker,
125 S. Ct. at 757.

       In an excellent presentation, the majority has summarized
how the District Court adequately considered the § 3553(a)
factors in setting sentence and appropriately addressed the
reasons for the sentence it pronounced. The majority states that:

        The court addressed the § 3553(a) factors and
        found “that the sentence to be imposed is
        reasonable in light of these considerations.”
        More importantly, the District Court
        appropriately addressed Cooper’s argument that
        her sentence was excessive considering her
        minimal criminal history compared to those of
        other, similarly sentenced defendants. The court
        rejected this contention, citing the serious nature
        of Cooper’s crimes, the effect of her conduct on
        the public, and that she was “treated well” at her
        prior sentencing hearing. It is reasonable to
        conclude that her criminal history category
        correctly reflected the actual seriousness of her
        conduct.



                                38
          Taken as a whole, the record shows the court
          adequately considered the § 3553(a) factors and
          reasonably applied them to the circumstances
          presented in Cooper’s particular case.

Maj. Op. at 17-18.

        Although I am prevented from adopting the majority’s
discussion insofar as it relates to reasonableness because I hold
there is no jurisdiction, I agree with the majority that the District
Court adequately considered the § 3553(a) factors.19 The
sentence did not violate Booker’s constitutional concerns about
the use of the advisory Guidelines in conjunction with the other
§ 3553(a) factors. Accordingly, there was no “violation of law,”
and we lack jurisdiction to determine whether Cooper’s sentence
was reasonable.

                                 V.

       The quandary facing this and other Courts of Appeals is
understandably troublesome. We are trying to reconcile both
the intent of Congress in enacting the SRA with the
constitutional deficiencies present in the enacted system, as
highlighted by Booker. Our Court, however, is one of limited


     19
        Although I cannot reach the question of whether the
sentence received by Cooper was reasonable, see Firestone Tire
& Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981) (“If the
appellate court finds that the order from which a party seeks to
appeal does not fall within the statute, its inquiry is over.”), were
I permitted to discuss this point, I would agree with the
majority’s formulation of reasonableness.

                                 39
jurisdiction, which indeed should be our paramount concern in
weighing Congress’ intent against the exigencies of Booker.
Accordingly, with respect, I am constrained to dissent from the
majority’s approach and I would dismiss this appeal for lack of
jurisdiction.sentence did not violate Booker’s constitutional
concerns about the use of the advisory Guidelines in conjunction
with the other § 3553(a) factors. Accordingly, there was no
“violation of law,” and we lack jurisdiction to determine
whether Cooper’s sentence was reasonable.

                              V.

       The quandary facing this and other Courts of Appeals is
understandably troublesome. We are trying to reconcile both
the intent of Congress in enacting the SRA with the
constitutional deficiencies present in the enacted system, as
highlighted by Booker. Our Court, however, is one of limited
jurisdiction, which indeed should be our paramount concern in
weighing Congress’ intent against the exigencies of Booker.
Accordingly, with respect, I am constrained to dissent from the
majority’s approach and I would dismiss this appeal for lack of
jurisdiction.




                              40
