Tuesday, June 13, 2006

Third Circuit lacks jurisdiction over appeal challenging extent of reduced sentence under Rule 35(b)

In United States v. McKnight, No. 05-1950 (3d Cir. May 19, 2006), the Third Circuit found that it lacked jurisdiction over an appeal challenging the extent of a Rule 35(b) sentence reduction. McKnight was originally sentenced to a 262-month term, but later received a reduction based on substantial assistance he provided to the government, reducing his sentence to 120 months. After he discovered that the government’s Rule 35(b) motion did not include mention of his brother’s assistance to authorities, McKnight filed a motion to correct his sentence, which the court rejected. The Third Circuit concluded that it lacked jurisdiction over the appeal, which it stated is "closely akin to challenging the extent of an U.S.S.G. § 5K1.1 order," and dismissed it, reasoning that it does not have jurisdiction to review a sentencing court’s discretionary decision to depart downward, nor does it have jurisdiction to consider an appeal from a § 5K1.1 order that does not allege a violation of 18 U.S.C. § 3742(a).

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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