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


5-22-2006

USA v. McKnight
Precedential or Non-Precedential: Precedential

Docket No. 05-1950




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Recommended Citation
"USA v. McKnight" (2006). 2006 Decisions. Paper 993.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/993


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                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 05-1950


           UNITED STATES OF AMERICA

                           v.

                 BRUCE MCKNIGHT,

                                             Appellant



     On Appeal from the United States District Court
        for the Western District of Pennsylvania
             (D.C. Crim. No. 01-cr-00036-3)
      District Judge: Honorable Gary L. Lancaster


     Submitted Pursuant to Third Circuit LAR 34.1(a)
                     May 19, 2006

Before: RENDELL and VAN ANTWERPEN, Circuit Judges,
           and ACKERMAN, District Judge*
                   (Filed: May 22, 2006)

Adam B. Cogan
One Northgate Square
Greensburg, PA 15601

Counsel for Appellant


Mary Beth Buchanan
Rebecca R. Haywood
Laura S. Irwin
Office of the United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219

Counsel for the Government
                             ____

                OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

_________________

*Honorable Harold A. Ackerman, Senior United States District
Judge for the District of New Jersey sitting by designation.




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       Bruce McKnight appeals the extent of his reduced
sentence pursuant to the Government’s Fed.R.Crim.P. 35(b)
motion, and the adequacy of the District Court’s factual findings
on the motion. Consistent with the holdings of six of our sister
courts of appeals who have faced similar challenges, we find
that we lack jurisdiction and will therefore dismiss.

                               I.

       Bruce McKnight pleaded guilty on May 31, 2002, to one
count of conspiracy to distribute in excess of 5 kg of cocaine
and 50 g of cocaine base, pursuant to 21 U.S.C. § 846.
McKnight cooperated with the Government and provided
information and testimony, both before and after his plea,
against other indicted persons. McKnight was originally
sentenced on May 31, 2002, to 262 months imprisonment. Over
a year later, pursuant to McKnight’s plea agreement, the
Government filed a motion under Fed.R.Crim.P. 35(b) to reduce
his sentence based upon the substantial assistance he had
provided to the Government. Following a hearing, on March 4,
2005, the District Court reduced McKnight’s sentence to 120
months imprisonment.

       Immediately after the sentence reduction, McKnight
discovered that the Government’s Rule 35(b) motion had not
included mention of the assistance given the Government by
McKnight’s brother, on McKnight’s urging. Both McKnight
and his brother had been told by the case agent that such
assistance could be the basis for a sentence reduction, and that
the assistance would be communicated to the United States
Attorney and the District Judge. McKnight promptly filed a

                               3
motion to correct his sentence, then appealed the sentence to this
Court in the interim. The District Court determined that the
appeal divested it of jurisdiction over the motion to correct the
sentence; this Court on August 9, 2005, stayed the appeal to
allow the District Court to rule on the motion.

       The District Court held a hearing on the motion on
September 12, 2005, and heard arguments as well as testimony
from the case agent. The District Court held that even if it had
the power to credit “surrogate assistance” under Rule 35(b), it
would not have reduced McKnight’s sentence any further than
the over-50% reduction already granted at the March 4, 2005,
hearing.

                                 II.

        McKnight presents two arguments on appeal: (1) the
District Court should have granted a further reduction in
McKnight’s sentence because of his brother’s assistance to the
Government; and (2) the District Court did not “adequately
analyze” the evidence supporting the Rule 35(b) motion. These
arguments reduce to an appeal of the extent of and foundation
for the sentence reduction granted pursuant to the Rule 35(b)
motion1; McKnight does not allege, nor could he on this record,
that the District Court felt it lacked jurisdiction or the discretion
to grant a further reduction in sentence. See 18 U.S.C. §


1. Contrary to McKnight’s second contention, we find no
deficiency in the District Court’s analysis of the
Government’s Rule 35(b) motion. United States v. Torres,
251 F.3d 138 (3d Cir. 2001).

                                 4
3742(a)(1) (violation of law).

        We lack jurisdiction over this appeal, which is closely
akin to challenging the extent of an U.S.S.G. § 5K1.1 order. See
United States v. Moran, 325 F.3d 790 (6th Cir. 2003) (collecting
cases from the Second, Seventh, Ninth, Tenth, and Eleventh
Circuits, all holding that the court lacks jurisdiction over an
appeal of a Rule 35(b) sentence reduction). United States v.
Booker, 543 U.S. 220 (2005), did not expand the situations in
which a defendant may appeal a sentence under 18 U.S.C. §
3742(a) to include discretionary sentencing reductions. United
States v. Cooper, 437 F.3d 324 (3d Cir. 2006). Thus, in Cooper
we followed our pre-Booker precedent that we do not have
jurisdiction to review a sentencing court’s discretionary decision
to depart downward from the Guidelines. Id. at 333. Likewise,
we may rely here on our pre-Booker view that we do not have
jurisdiction to consider an appeal from a § 5K1.1 order that does
not allege a violation of 18 U.S.C. § 3742(a). United States v.
Torres, 251 F.3d 138, 151-52 (3d Cir. 2001). We decline to
follow the approach of the First Circuit in United States v.
McAndrews, 12 F.3d 273 (1st Cir. 1993), the only case
McKnight cites in support of jurisdiction.

                                 III.

        We conclude that we lack jurisdiction in this matter, and
will dismiss the appeal. We have considered all other arguments
made by the parties on appeal, and conclude that no further
discussion is necessary.




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