USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-1596
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIE McANDREWS, a/k/a WILLIE WILSON,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
__________________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
_________________________
John F. O'Donnell for appellant.

_________________
Margaret D. McGaughey, Assistant United States Attorney,
______________________
with whom Jay P. McCloskey, United States Attorney, Nicholas M.
________________
___________
Gess and William H. Browder, Jr., Assistant United States
____
__________________________
Attorneys, were on brief, for the United States.
_________________________
December 13, 1993
_________________________

SELYA,
SELYA,
invitations.

Circuit Judge.
Circuit Judge.
______________
First,

jurisdiction

it

This

invites

us

appeal

to

exercise

two

appellate

in connection with rulings on motions invoking Fed.

R. Crim. P.

35(b).1

Second, it

invites us to

courts,

passing

upon

motions,

in

conveys

hearings on demand.

We

such

to

require district
hold

evidentiary

accept the first invitation, but decline

the second.
I.
I.

BACKGROUND
BACKGROUND

A jury found defendant-appellant Willie McAndrews, also

known

as

Willie

Wilson,

guilty

841(a)(1), 841(b)(1)(A), and 846.

federal

sentencing

guidelines,

of

violating

21

U.S.C.

Using the 1989 edition of the

the

district

court

sentenced

appellant to 125 months in prison.

In

the aftermath of his sentence, appellant cooperated

with federal authorities.

timely sentence

Consequently, the government

reduction motion

under Rule

35(b).

filed a

Appellant

____________________

1The rule was rewritten as part of the Sentencing Reform

Act, effective November 1, 1987, and was further amended in 1991.
See Fed. R. Crim. P. 35 advisory committee's notes.
In its
___
current incarnation, the rule provides in pertinent part:
The court, on motion of the Government made
within one year after the imposition of the
sentence, may reduce a sentence to reflect a
defendant's
subsequent,
substantial
assistance
in
the
investigation
or
prosecution
of another
person who
has
committed an offense . . . .
The court's
authority to reduce a sentence under this
subsection includes the authority to reduce
such
sentence to
a
level below
that
established by statute as a minimum sentence.
Fed. R. Crim. P. 35(b).
2

requested

an evidentiary

hearing on

the motion.

Following

lengthy

continuance

designed

to

permit

better

informed

assessment of the fruits of appellant's cooperation, the district

court eschewed an evidentiary hearing and, acting on the parties'

written

submissions,

granted

Dissatisfied with the extent of

29 months from the sentence
II.
II.

the

government's

the reduction

motion.

the court sliced

McAndrews appeals.

We affirm.

APPELLATE JURISDICTION
APPELLATE JURISDICTION
We deal first with the jurisdictional quandary.

two aspects.

It has

We treat them sequentially.

A.
A.

It is settled

The Departure Analogy.

The Departure Analogy.
_____________________
that a criminal defendant

cannot ground

an appeal on the sentencing court's discretionary decision not to

depart below the guideline

sentencing range.

See, e.g.,
___ ____

United
______

States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113
______
______
_____ ______
S. Ct. 224

(1992); United States

_____________

v. Hilton,
______

(1st Cir. 1991); United States v. Romolo,

______________
______
Cir.

1991).2

affirmatively
appeal will
because

[he]

In

the

same

vein,

if

exercises its discretion

lie on behalf
is

of the

dissatisfied with

946 F.2d 955,

937 F.2d 20, 22

the

sentencing

(1st

court

and departs downward, no

benefitted defendant
the

957

quantification

"merely

of the

____________________

2An exception applies when the sentencing court's ruling

results from a mistake of law.
See, e.g., Amparo, 961 F.2d at
___ ____ ______
292; Hilton, 946 F.2d at 957. Thus, "appellate jurisdiction may
______

attach when it appears that the failure to depart stemmed from

the sentencing court's mistaken impression that it lacked the
legal authority to depart or, relatedly, from the court's
misapprehension of the rules governing departure." United States
_____________
v. Mariano, 983 F.2d 1150, 1153 (1st Cir. 1993) (collecting
_______
cases).
3

court's generosity."

United States
_____________

v. Pighetti, 898 F.2d

________

3, 4

(1st Cir. 1990).

Phrased another way, the court of appeals lacks

jurisdiction

hear an

to

appeal

departure decision operates.

456, 464

(1st Cir.

by a

party

in whose

favor a

See United States v. Fisher, 3 F.3d

___ _____________
______

1993); United States

_____________

v. Gregorio,
________

956 F.2d

341, 345 n.5 (1st Cir. 1992); Pighetti, 898 F.2d at 4.

________
The general rule
discussed

above

situation

of

refusal
defendant

nonappealable holds

downward departures

Thus, neither
reward

are

that departure decisions of

a district court's

grant as
had

hoped,

generous
will

in

assistance,
departure

normally

the special

substantial assistance.3

refusal to depart

defendant's substantial
to

for

true

the type

downward to

nor

the court's

cooperating

as

constitute

an appealable

event.
1993);

See
___

United States v.
_____________

United States
_____________

v. Correa,
______

1993); United States v.

______________
cert. denied,
_____ ______

Doe, 996
___

114 S. Ct.

995

F.2d 606, 607

F.2d 686,

Womack, 985 F.2d

______

(2d Cir.

687 (7th

Cir.

395, 401

(8th Cir.),

276 (1993); United States

_____________

v. Mariano,
_______

983 F.2d 1150, 1153-54 (1st Cir. 1993).

In

this appeal, the

such "substantial

government attempts

assistance" departures to

to analogize

sentence reductions

____________________

3Beyond inviting
a comparison between
the triggering
mechanisms, compare U.S.S.G.
5K1.1 with U.S.S.G.
5K2.0, it
_______
____
would be supererogatory for us to rehearse today the differences
between "substantial assistance" and "mitigating circumstances"
departures. At any rate, we have charted that terrain in other
cases. See, e.g., United States v. Mariano, 983 F.2d 1150, 1154___ ____ _____________
_______
55 (1st Cir. 1993); Romolo, 937 F.2d at 24-25.
______
4

under Rule 35(b)

for jurisdictional purposes.4

a certain superficial attraction

The analogy has

because both mechanisms operate

to

bring a defendant's

range

and

Mariano,
_______

entail
983

sentence below the

similar

F.2d

at

Milken, 1992
______
1992)

(discussing

reductions).

factors

But

factors

e.g.,
____

influencing

11670 at *3-*5 (S.D.N.Y.

influencing

on closer

it overlooks

compare,
_______

5K1.1) with, e.g., United States v.

____ ____ ______________

U.S. Dist. LEXIS

(discussing

because

judicial inquiries,

1156

departures under U.S.S.G.

guideline sentencing

Rule

perscrutation,

a jurisdictionally

35(b)

Aug. 5,

sentence

the analogy

fails

significant difference

between downward departures and sentence reductions.

The

right

of appeal

in

criminal cases

is

purely a

creature of statute, that is, a party "must come within the terms
of

[some] applicable

statute" in

order

United States, 431 U.S. 651, 656 (1977).

_____________
guideline

sentencing, a

criminal

easily achieve this benchmark.

have jurisdiction

Abney
_____

v.

Prior to the advent of

defendant,

in theory,

could

After all, the courts of appeals

over "appeals from all final

district courts," 28 U.S.C.

imposition

to appeal.

1291; and, in

of sentence constitutes

decisions of the

a criminal case, the

a final decision

within the

meaning of section 1291, see Parr v. United States, 351 U.S. 513,
___ ____
_____________

518 (1956); Berman v. United States, 302 U.S. 211, 212-13 (1937).
______
_____________
Nevertheless,

the theoretical possibility

of an appeal

had few

____________________
4Although

this

analogy

has

never before

been

carefully

probed by a federal appellate court, it appears to have been

implicitly approved in a dictum contained in United States v.
______________
Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992).
_____
5

practical

consequences; since

discretion and

judges

were not required

possessed extremely

to state reasons

wide

for imposing

particular punishments, sentences were virtually unreviewable (so

long as

they

fell within

United States
_____________
Cir.

1989)

applicable

v. Ruiz-Garcia,
___________
(discussing

statutory limits).

886 F.2d 474,

historical

476-77 &

background

of

See
___

n.4 (1st

sentencing

appeals).

Congress changed the calculus radically when it enacted

18 U.S.C.

3742 as part of

the Sentencing Reform Act

of 1984,

constituting it as the exclusive avenue through which a party can

appeal a sentence in a criminal case.5

The

practice

narrowing

in

sentences that

two

salient

respects,

can be appealed

statute alters prior

the

while simultaneously

types

augmenting

the grounds for appealing the remaining types of sentences.

____________________

of

See,
___

5The statute provides in pertinent part:

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
there
is
no sentencing
guideline
and
is
plainly
unreasonable.

18 U.S.C.
3742(a) (1988). The terms under which the government
may appeal a sentence are substantially similar.
See id. at
___ ___
3742(b).
6

e.g., S.
____
1984

Rep. No. 225, 98th Cong., 2d Sess. (1983), reprinted in

____________

U.S.C.C.A.N. 3182, 3338 (stating that "section 3742 creates

for the first time a

that

comprehensive system of review of sentences

permits the appellate

sentences

whose review

is

process to focus
crucial to

the

attention on those
functioning of

the

sentencing guidelines system, while also providing adequate means

for correction of erroneous and clearly unreasonable sentences").

In the post-guidelines era,

meet

the

criteria

appellate review.

limned
And

in

then, only sentences

section

3742

because neither

refusals to

depart nor

sentence

specified in the applicable guideline range," 18 U.S.C.

3742(a), a defendant

sentence

to

departures result

or otherwise

amenable

downward

3742(a)(3),

in

are

that

trigger the

"greater

than

prophylaxis of

ordinarily will not be able

the

section

to appeal from

such a decision, see Pighetti, 898 F.2d at 4.6

___ ________
Rule

35(b)

is

horse

of

different

hue.

By

definition, a sentence must already have been imposed before Rule

35(b) can be

invoked and a sentence reduction

contemplated.

It

follows that the appealability of an order resolving a Rule 35(b)

motion

is not

order

is

not,

controlled by
properly

18 U.S.C.
speaking,

3742 because
a

sentence.7

such an

Rather,

____________________

6This statement is, of course, subject to the exception

previously mentioned.
See supra note 2.
We see no reason why
___ _____
the same exception should not apply if, and to the extent that, a
mistake of law materially and demonstrably influences the extent
of a departure decision.

7On this point, we differ from the position adumbrated,

without analysis, in United States v. Yesil, 991 F.2d 1527, 1531
_____________
_____
n.4 (11th Cir. 1993).
7

appealability
respect to the

in

such

circumstances, like

disposition of virtually all

motions, is governed by 28 U.S.C.

a

Rule 35(b) motion

1291.

appealability

with

other post-judgment

And an order resolving

satisfies the preconditions

established by

section 1291, for entry of the order leaves nothing further to be

done.

See
___

United States v. Metropolitan Dist. Comm'n, 847 F.2d

_____________
__________________________

12, 14 (1st Cir. 1988)

becomes final

(elucidating "general rule" that an order

and appealable when

a court resolves

a contested

matter, leaving nothing further to be done) (citing, inter

_____
Catlin v.
______

United States, 324

_____________

granting

or

denying a

Rule

U.S. 229,
35(b)

233 (1945)).

alia,
____

An order

motion

is, thus,

analysis

accords

with

final

decision for purposes of section 1291.

Cast
general

in this

mold,

principle, taken

our

for granted

in both our

the

criminal and

civil jurisprudence, that rulings disposing of motions which seek

to alter preexisting judgments are appealable.
States v.
______
appeal

Slade, 980 F.2d

_____

from

denial

evidence pursuant

of

27, 32 (1st Cir.

post-judgment

to Fed. R.

See, e.g., United

___ ____ ______

1992) (entertaining

motion

to

Crim. P. 33); Fiore

_____

present

new

v. Washington
__________

Cty. Community Mental Health Ctr., 960 F.2d 229, 232-33 (1st Cir.
_________________________________
1992)

(en

banc)

(discussing

appealability

of

post-judgment

motions in civil
of

cases; restating established rule

post-judgment motions

"are

appealable

separately from

appeal of the

underlying judgment"); United States

_____________

820

22-24 (1st

F.2d 20,

Cir.

1987) (entertaining

grant of sentence reduction motion

_____

that denials

the

v. Distasio,
________

appeal from

under former Rule 35(b)); see

___

also cases cited infra p.12 (entertaining appeals from denials of

____
_____
_______
sentence

reduction

motions

brought

pursuant

to

former

Rule

35(b)).
For the
analogy between
and

sentence

foregoing reasons, the

downward departures

reductions

appellate jurisdiction.
dominated

by the

government's attempted

for substantial

is

unpersuasive

We

conclude

in

that,

sentencing guidelines,

an

assistance

connection
even

in

an

order granting

denying a timely motion for a sentence reduction, unlike

with

era

or

certain

analogous departure decisions, remains appealable.

B.
B.
Perhaps

the

Lack of Adverseness.
Lack of Adverseness
___________________
better

argument

against

appellate

jurisdiction in the

case of a granted Rule 35(b)

motion is that

the defendant, qua appellant, lacks "such a personal stake in the

___

outcome of the controversy as to assure that concrete adverseness

which sharpens the presentation of issues upon which the court so

largely depends."
least

Baker v. Carr,
_____
____

369 U.S. 186, 204 (1962).

in certain circumstances, a prevailing party cannot appeal

from an order or judgment entered in his favor.

v. Marsh, 907 F.2d 210, 213
_____
Co., 898 F.2d
___

1, 2

Coulombe, 888
________

F.2d 179, 180

lower
months

At

appellant,

his

(1st Cir.

sentence.

having derived a

Sierra Club
___________

(1st Cir. 1990); In re Public Serv.

___________________
1990); Bath Iron Works Corp.
______________________
(1st Cir.

court's order operated

from

See
___

1989).

And, here,

in appellant's favor,
It

is,

v.

the

trimming 29

therefore, arguable

substantial benefit, should

that

not be

allowed to appeal from the ruling.

9

The problem with

it is overly simplistic.

such an argument is

twofold.

First,

The key to the appealability of a final

order is

injury,

not

prevailing party

status.

See
___

Deposit
_______

Guaranty Nat'l Bk. v. Roper, 445 U.S. 326, 334 (1980) (explaining
__________________
_____
that "appeal may be
to the

permitted from an adverse ruling

collateral

judgment on the merits at the behest of the party who has

prevailed on the merits, so long as that party retains a stake in

the

appeal

satisfying

the

requirements

of

Art.

III").

prevailing party dissatisfied with the quantum of relief obtained

say, a

personal

injury plaintiff

who

receives a

liability finding but a paltry damage award

appellate review.8

argument

in

Distasio, we considered
________
after

having

reduction.

vacated

has already repudiated the

an

almost

the case

been granted

earlier version of
the

ordinarily can seek

So it is here.

Second, this court

adverseness

favorable

identical

of a

lack of

context.

In

criminal defendant

who,

reduction

in

sentence under

Rule 35(b), sought to appeal

an

the adequacy of

See
___

Distasio, 820
________

F.2d

at 22.

Although we

the district

court's order

on a

different ground,

we

ruled squarely that "a criminal defendant may appeal the adequacy
of

sentence

35(b)."

reductions granted

Id. at
___

24.

pursuant

to Fed.

The recent amendments to

R.

Crim. P.

Rule 35(b) do not

____________________

8We note that, if the law were to the contrary in the Rule
35(b) environment, a district court could invariably defeat
appellate oversight of an otherwise reviewable denial of a Rule
35(b) motion by, for example, lopping one day off a defendant's

sentence.
10

undermine
bound

the rationale

by it.

See,
___

on which

e.g., Doughty
____ _______

Distasio rests,9
________

and we

are

v. Underwriters at Lloyd's,
_________________________

London, ___ F.3d ___, ___ (1st Cir. 1993) [No. 93-1174,
______

slip op.

at 9] (discussing binding effect of prior panel opinions within a

circuit).

We hold, therefore, that we have jurisdiction to hear a

timely

appeal in which a prevailing defendant complains that the

district

court acted too

Rule 35(b).
III.
III.

relief under

This case fits within that jurisdictional enclave.

THE MERITS
THE MERITS
Having

ascertained

jurisdiction, the
Appellant's
in

grudgingly in dispensing

merits

of

the

existence

the appeal

need

of
not

appellate
detain

us.

flagship contention is that the district court erred

denying his

motion

for an

evidentiary

robbed him of

the opportunity to make a

on the merits.

We are not persuaded.10

____________________

hearing and,

thus,

more formidable showing

9The current version of Rule 35(b), applicable to crimes

committed on or after November 1, 1987, differs in at least three
ways from former Rule 35(b).
First, the text of the new rule
limits the ground for relief to "substantial assistance in the
investigation or prosecution of another person who has committed
an offense."
Second, the new rule adds a "government motion"
requirement. Finally, in the latest version of Rule 35(b), the
period within which a Rule 35(b) motion may be filed has been
lengthened somewhat.
Nonetheless, the essence of a Rule 35(b)
determination
the district court's discretionary decision
whether to reduce a defendant's sentence, and if so, to what
extent
remains intact.

10Appellant hints, but offers no developed argumentation to

show, that the sentence reduction granted by the district court
is, in fact, too niggardly.
That approach is, therefore,
foreclosed.
See United States v. Zannino, 895 F.2d 1, 17 (1st
___ _____________
_______
Cir.) (warning that issues adverted to in a perfunctory manner,
unaccompanied by developed argumentation, are waived), cert.
_____
11

In

this

insistence that

endeavor,

nature

Appellant's
formulation.

main

focus

"without conducting an evidentiary

district court cannot

full

appellant's

and
Brief

possibly be in a position

extent
at

9.

of

[a
We

defendant's]
flatly

reject

is

his

hearing, the

to evaluate the

cooperation."
such

rigid

A criminal defendant is not automatically entitled

to an evidentiary hearing on a pretrial or posttrial motion.

United States v. McGill, ___

F.3d ___, ___ (1st Cir. 1993)

See
___

[No.

_____________

______

93-1023, slip op. at 3] (collecting cases).

We can envision no sound basis for exempting Rule 35(b)

motions from
extent
is

the sweep

and value of a

a delicate,

of this generality.

nuanced

matter,

mandatory

equally

delicate, equally nuanced situations.

(outrageous

evidentiary

we

abjured

hearings in

954 F.2d 12, 19 (1st

United States v.
_____________

gauging the

defendant's assistance to the authorities

highly

States v. Garcia,
______
______

While

have
a

wide

consistently

variety of

See, e.g., United

___ ____ ______

Cir. 1992) (sentencing);

Panitz, 907 F.2d 1267, 1273-74

______

(1st Cir. 1990)

misconduct); United States v. O'Brien, 895 F.2d 810,

_____________
_______

817 (1st Cir. 1990) (motion for Nebbia hearing); United States v.
______
_____________
Saade,
_____

652

F.2d

prosecution).
of

Rule

have

not been

(1st

thought

even oral argument.

DeCologero, 821
__________
Heller, 797
______

1135-36

Cir.

1981)

(selective

Tellingly, motions brought under earlier versions

35(b)

hearings, or

1126,

F.2d 39,

See, e.g.,
___ ____

44 (1st Cir.

F.2d 41, 42 (1st Cir.

____________________
denied, 494 U.S. 1082 (1990).
______
12

to

require evidentiary

United States v.
_____________

1987); United States v.

______________

1986); United States v. Foss,

_____________
____

501 F.2d
a

522, 529 (1st Cir. 1974).

district court

has

broad

procedures

for considering

discretion

to

grant

or

We conclude, therefore, that

discretion
Rule

35(b)

deny an

to

craft

appropriate

motions, including

evidentiary

the

hearing.11

United States
_____________

v. Winfield, 960
________

F.2d 970, 972 (11th

United States
_____________

v. Collins Spencer Catch The Bear, 727

_______________________________

See
___

Cir. 1992);

F.2d 759,

762 (8th Cir. 1984).

Once it

is determined

that Rule

35(b) motions,

as a

class, do not demand special swaddling, appellant's assignment of

error founders.
or denying

We review

evidentiary

the district court's rulings granting

hearings

rubric.

See Garcia, 954 F.2d at

___ ______

Because

the trial

superior

judge

vantage point

will not overrule the

is

under

an

abuse-of-discretion

19; DeCologero, 821 F.2d at 44.

__________

steeped in

for assessing

the

facts

motions of this

refusal to convene an

and has

sort, we

evidentiary hearing

____________________
11Appellant

cites United States v. Yesil, 968 F.2d 1122

______________
_____
(11th Cir. 1992), for the proposition that a district court must
always grant a requested evidentiary hearing when the government
moves for a sentence reduction under Rule 35(b).
The case does
not bear the weight that appellant ascribes to it. In the first

place, the original opinion in Yesil has been superseded, and the
_____
court's revised opinion makes clear "that the decision whether or
not to grant an evidentiary hearing [on a Rule 35(b) motion]
generally is committed to the [sentencing] court's discretion."
United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir. 1993)
______________
_____
(superseding earlier opinion). In the second place, written plea
agreements obligated the government in Yesil, upon completion of
_____
the defendants'
cooperation, to
apprise the
court fully
concerning the nature and extent of defendants' actions. Id. at
___
1532.
Because of the language of the plea agreements, "[t]he
district court lost its usual discretion to determine whether or
not to grant a party's request for an evidentiary hearing . . .
."
Id.
In the case at bar, the record does not show any plea
___
agreement between the defendant and the prosecution.
Hence,
Yesil is inapposite.
_____
13

absent
misused.
a

a clear

showing

that the

court's

discretion has

been

Consequently, a party seeking an evidentiary hearing on

post-judgment

persuasion.

motion

must

carry

formidable

burden

of

See McGill, ___ F.3d at ___ [slip op. at 3-4].

___ ______

McAndrews wholly
The government made

failed

to carry

a detailed written

this heavy

proffer to the

burden.

district

court, spelling out the facts referable to its sentence reduction

motion.

Appellant had a similar opportunity.

Yet, he offered no

specifics to contradict
material omissions.12
evinced

little

the prosecution's proffer or

Beneath the rhetoric,

more

than

the

hope

that,

eventuate, something helpful might emerge.

A

district court

motion

merely

need not

because

because a defendant
e.g., DeCologero,
____ __________
hearings

grant

appellant's filing
should

hopes

cannot be

provided

at 44
upon

hearing

hearing on

spring

wishes to mount a fishing

821 F.2d

But more is exigible.

an evidentiary

a defendant's

to suggest

demand, "at

eternal or

expedition.

(cautioning that
the

See,
___

evidentiary
whim of

suitor").
The short of it is

that a criminal defendant who seeks

an evidentiary hearing on a motion must, at the very least, carry

____________________

12At one point, appellant asserted that, in addition to the

efforts that the government catalogued, he also "provided the
impetus for two other individuals, Charlie Luna and Pedro Gomez,
to commence cooperation," and that new cases were developed
because of this information. But scrutiny of the government's
proffer reveals complete agreement on this point
and, thus, no
need for an evidentiary hearing.
The fact that the government
did not identify Luna and Gomez by name, but referred to them
merely as "two other suspects," is a distinction bereft of any
meaningful difference.
14

an entry-level burden
that material facts

by making "a sufficient

threshold showing

[are] in doubt or in dispute."

F.2d at 1173; see also

___ ____

Franks
______

Panitz, 907
______

v. Delaware, 438 U.S. 154, 155-56

________

(1978) (requiring "substantial preliminary showing" antecedent to

evidentiary hearing); Saade, 652 F.2d at 1135 (similar).
_____
instance,

In this

appellant offered no persuasive reason to believe that

taking testimony would

or even might

the district court, in refusing

be productive.

Thus,

to grant an evidentiary hearing,

did not abuse its considerable discretion.

IV.
IV.

CONCLUSION
CONCLUSION
We

jurisdiction
disposition of

need
to

go

no

consider
his

further.
appellant's

Rule 35(b)

jurisdiction, however, we find

motion.

hold

that

we

have

anent

the

Having exercised

this

complaint

no error in the district

order or in the procedure it employed.

Affirmed.
Affirmed.
________

We

court's

15