OPINION
Although it has been over five years since the Supreme Court’s thoroughgoing reform of federal sentencing law in
United States v. Booker,
I
In March 2000, a federal grand jury indicted Anthony Bowers on one count of conspiracy to possess, with intent to distribute, five kilograms or more of powder cocaine and fifty grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on his criminal history category of VI, Bowers was subject to a sentence of 360 months to life under the (then-mandatory) United States Sentencing Guidelines (“Guidelines”). Bowers pleaded guilty pursuant to an agreement under which he was to receive a sentence of only 120 months. Before sentencing, however, Bowers breached his plea agreement by leaving the country without permission, thereby subjecting himself once again to a Guidelines-range sentence. As a result of a motion under § 5K1.1 of the Guidelines, the district court in November 2000 imposed a below-Guidelines-range sentence of 262 months of imprisonment and ten years of supervised release. Bowers did not appeal or collaterally attack this sentence.
In January 2008, the government filed a motion pursuant to Rule 35(b) relating to Bowers’s sentence.
1
Meanwhile, in November 2007, the United States Sentencing Commission amended the Guidelines to reduce the sentencing disparity between crack-cocaine and powder-cocaine offenses.
See
U.S.S.G. SuppApp. C, Amdt. 706 (effective Nov. 1, 2007);
see also Kimbrough v. United States,
On May 5 and 6, 2008, the district court conducted a combined hearing on the two motions. During this hearing, the court heard testimony from one of Bowers’s fellow inmates that, several months earlier, Bowers and two other inmates had violent *718 ly attacked him and searched his anus for contraband. Three corrections officers gave corroborating testimony. Bowers, by contrast, testified that he had nothing to do with the assault and that he had reformed himself in prison, found religion, and “learned his lesson.” Bowers also proffered several friends, family members, and fellow prisoners as character witnesses.
The government, taking the position that Bowers’s alleged participation in the assault demonstrated his “dangerousness to the public,” suggested at most a “de minimis ” sentence reduction of one year (i.e., a total sentence of 250 months). Bowers argued that his sentence should be reduced to time served (at that point, approximately 90 months), or, at most, to the 120 months he was originally to serve under the breached plea agreement.
From the bench, the district court found the government’s witnesses credible and Bowers not credible. The court then opined that, based on the totality of the circumstances, a “reduced sentence wouldn’t be sufficient based on the negative [personal] characteristics of Mr. Bowers and the actions he took toward [the victim] ..., the need to deter criminal conduct in prison, and the need to protect the public from further crimes.” Consequently, the district court refused to award any additional sentence reduction pursuant to either Rule 35(b) or § 3582(c)(2). Bowers timely appealed.
II
We begin — and also end — by examining whether we have jurisdiction to consider Bowers’s appeal at all. The government argues that, under this circuit’s precedents, we lack jurisdiction to hear Bowers’s appeal of the district court’s Rule 35(b) determination — a conclusion that Bowers disputes. And although the government does not challenge our jurisdiction to hear Bowers’s appeal of the district court’s § 3582(c)(2) determination, “[s]ubject-matter limitations on federal jurisdiction ... must be policed by the courts on [our] own initiative....”
Ruhrgas AG v. Marathon Oil Co.,
A. Which Statute Controls the Jurisdictional Analysis?
1. Potential Sources of Jurisdiction
Criminal defendants enjoy no constitutional right to appeal their convictions; accordingly, “in order to ... appeal one must come within the terms of [some] applicable statute____”
Abney v. United States, 431
U.S. 651, 656,
(1) was imposed in violation of law; [or]
(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
*719 (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3742(a). 3
Because Congress enacted the Sentencing Reform Act with the intent to establish “a limited practice of appellate review of sentences in the Federal criminal justice system,” S.Rep. No. 225, 98th Cong., 2d Sess. 149 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3332, the federal courts are in agreement that § 3742 is now “the exclusive avenue through which a party can appeal a sentence” imposed as the result of a run-of-the-mill plenary sentencing proceeding following a conviction,
United States v. McAndrews,
Here, however, Bowers does not appeal the result of an initial, plenary sentencing proceeding. Rather, he appeals the district court’s refusal to reduce a previously imposed sentence. Which jurisdictional provision controls, then, depends on whether Bowers’s appeal is properly viewed as an appeal of the district court’s determination of the sentence-reduction motions or as an appeal of the sentence that resulted from those motions. Because our jurisdiction to hear appeals of “sentences” under § 3742 is tightly circumscribed, the answer to this question is of great consequence.
2. Rule 35(b) Appeals
Although both interpretations of the nature of Bowers’s appeal are possible in theory, the question is settled in this circuit with respect to the Rule 35(b) issue. In
United States v. Moran,
[ Defendant’s] original sentence was 233 months. After the district court’s order granting a departure, his sentence was 221 months. By any definition, the court’s order imposed a new sentence, and [defendant’s] appeal of that order is an appeal from an “otherwise final sentence” ....
Id.
at 793 (quoting
United States v. McDowell,
*720 While we found this “common sense meaning” argument sufficient to decide the question, we went on to note two additional arguments supporting our holding. First, we observed that Rule 35(b) motions are the post-sentencing analogues of government motions for downward departures pursuant to U.S.S.G. § 5K1.1 upon initial sentencing. Ibid. The latter, we noted, are clearly governed by § 3742, because such departures are part and parcel of a defendant’s plenary sentence proceeding; we then reasoned that, “[g]iven the similarity between § 5K1.1 and Rule 35(b), it would be anomalous to treat appeals of judgments resolving the two motions differently.” Ibid. We also noted that legislative history suggested that Congress intended Rule 35(b) determinations to be appealed under § 3742. See ibid, (quoting S.Rep. No. 225, 98th Cong., 2d Sess. 158 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3341 (stating that Rule 35 was amended “in order to accord with the provisions of proposed section 3742 of Title 18 concerning appellate review of sentence”)).
With one exception, every other circuit to address the question is in accord with our holding in
Moran. See United States v. McKnight,
3. Section 3582(c)(2) Appeals
In contrast with this wealth of cases analyzing appellate jurisdiction over Rule 35(b) determinations, surprisingly little has been said by the federal courts regarding the source of appellate jurisdiction over § 3582(c)(2) determinations. Some out-of-circuit decisions have stated without discussion that such determinations are appealable under § 1291.
See, e.g., United States v. McGee,
In our own circuit, although we hear such appeals on a regular basis, it has generally not been our practice to specify the statutory provision under which we take jurisdiction; ordinarily, we simply state that district-court determinations in § 3582(c)(2) proceedings are “reviewed for abuse of discretion” and proceed to the merits of the appeal.
See, e.g., United States v. Bridgewater,
Examples to the contrary are few and far between. In a single published opinion, we stated in passing: “This is an appeal from the judgment of the District Court after denial of a motion filed pursuant to 18 U.S.C. § 3582(c)(2). Jurisdiction
is invoked
under 28 U.S.C. § 1291.”
United States v. Carter,
On the other hand, in one unpublished decision involving a § 3582(c)(2) appeal, we stated that “it is well-settled that a defendant may appeal a
sentence
imposed as a result of an incorrect application of the guidelines” and cited § 3742, implying that we were taking jurisdiction under that provision.
United States v. Williams,
No. 96-4387,
None of our prior cases dictates the result here.
Cerna, Williams,
and
Coffee
are unpublished and therefore not binding. And
Carter,
although published, merely noted that the appellant had “invoked” § 1291 and proceeded immediately to the merits. In none of these cases does it appear that the jurisdictional issue was in question. As the Supreme Court has stated, “when questions of jurisdiction have been passed on in prior decisions sub silentio, [we are not] bound when a subsequent case finally brings the jurisdictional issue
*722
before us.”
Hagans v. Lavine,
Taking a fresh look at the question, we believe that our jurisdiction to consider the appeal of a § 3582(c)(2) determination, like our jurisdiction to consider the appeal of a Rule 35(b) determination, must come from § 3742. Section 3582(c)(2) determinations are not distinguishable from Rule 35(b) determinations in any relevant respect. Both provisions allow the discretionary reduction (but not the augmentation) of an already imposed sentence based on the satisfaction of some condition precedent.
See Dillon,
4. Does Dillon Affect This Analysis?
Before we move on, we briefly address the Supreme Court’s recent statement in
Dillon v. United States
that, “[f]ollowing [the] two-step approach [required by § 3582(c)(2) ], a district court proceeding under § 3582(c)(2) does not impose a new sentence in the usual sense.”
In our opinion, however, the key parts of this quotation are its
beginning
— “[j]allow
ing this two-step approach
” — and its
end
— “in
the usual sense.”
As we will discuss further below, the central theme of
Dillon
is that a § 3582(c)(2) proceeding is
procedurally
unlike a plenary resentencing.
See ibid,
(noting the “narrow scope” of § 3582(c)(2) proceedings);
id.
at 2692 (referring to a § 3582(c)(2) proceeding as a “circumscribed inquiry”). The Court observed that in such a proceeding, unlike in a plenary sentencing proceeding, a district court may not weigh the general sentencing considerations set forth in 18 U.S.C. § 3553(a) unless it first ascertains that a reduction would be “consistent with [the specific requirements of U.S.S.G.] § 1B1.10.”
We read the
Dillon
Court’s comment that a district court “[fjollowing this two-step approach ... does not impose a new sentence in the usual sense” merely as highlighting this procedural dissimilarity, rather than as suggesting that
the end result
of a sentence-reduction proceeding is not a “sentence” within the meaning of § 3742.
5
Indeed, because
Dillon
empha
*723
sized that sentence-reduction proceedings are narrow “exception[s] to the general rule of [a sentence’s] finality,”
B. Is Bowers’s Appeal Within the Scope of § 3742?
Having determined that jurisdiction to hear Bowers’s appeal must arise under § 3742 if it exists at all, we now consider whether the arguments that he asserts fall within the scope of that section. In his appeal, Bowers raises two principal objections to the district court’s decision. First, he argues that the district court erred in its factual finding that he was involved in the alleged assault. Second, he argues that, for various policy-oriented reasons, the denial of a sentence reduction was “unreasonable” and the re-imposed sentence “is substantially longer than a sentence that would be sufficient, but not greater than necessary, to comply with” the 18 U.S.C. § 3553(a) factors. 6
As we have already noted, § 3742(a) authorizes us to review the outcome of a sentence-reduction proceeding only where the resulting sentence “(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is greater than the sentence specified in the applicable guideline range; or (4) was imposed for an offense for which there is no guideline and is plainly unreasonable.”
Moran,
1. Pre-Booker Case Law
It is beyond dispute that, pr
e-Booker,
the objections that Bowers raises would not have qualified as cognizable “violation[s] of law.” In the pr
e-Booker
era, an allegation that the district court had denied a
discretionary
sentence adjustment “based on clearly erroneous findings of fact” did not assert a “violation of law” within the meaning of § 3742(a).
United States v. Clark,
2. Booker, Gall, and the Advent of Unreasonableness Review
When the Supreme Court decided
Booker
in 2005, it effected a far-reaching change in federal sentencing law. In Justice Stevens’s lead opinion, the Court held that mandatory application of the Guidelines violated the Sixth Amendment by subjecting defendants to increased sentences based on facts not found by a jury.
Subsequently, in
Gall v. United States,
Of course, these are the very complaints that Bowers raises with the sentence-reduction proceedings below. Accordingly, our jurisdiction over Bowers’s appeal turns on whether, after Booker and Gall, allegations of procedural or substantive unreasonableness in the context of a Rule 35(b) or § 3582(c)(2) proceeding create jurisdiction under § 3742.
3. Impact of Booker and Gall on the Appeal of Sentence Reduction Proceedings
At first blush, one might be inclined to conclude that the answer to this question is yes. Although the Booker and Gall Courts did not address the statutory source of the appellate courts’ newly acquired jurisdiction to review sentences for unreasonableness, practically every circuit quickly concluded that § 3742(a)(l)’s “imposed in violation of law” provision embraced claims of unreasonableness, at least in appeals of initial, plenary sentencing proceedings. Booker, after all, was now “law.” As we explained:
Under Booker, an appellate court must review all sentences for “reasonableness” .... [W]e fail to see how Trejo’s challenge — namely, that the sentence imposed was “unreasonable” — does not implicate § 3742(a)(1). The standard set forth in the law of sentencing review, as established by the Supreme Court, is one of reasonableness, and any sentence that is deemed unreasonable must necessarily be one imposed “in violation of law.”
United States v. Trejo-Martinez,
However, we subsequently reached the opposite result in the context of an appeal from a Rule 35(b) proceeding.
See United States v. Parker,
Our sister circuits reached conclusions similar to ours in
Parker,
holding that allegations of unreasonableness do not confer appellate jurisdiction over Rule 35(b) determinations. As with
Parker,
however, the reasons given for these cases’ holdings have not been entirely convincing.
See, e.g., United States v. Wilson,
In our opinion, the Supreme Court’s recent decision in
Dillon v. United States,
to which we have already adverted, makes clear that, regardless of their reasoning, these cases reached the correct outcome. In
Dillon,
the defendant had been convicted of a crack-cocaine offense. Following an unsuccessful appeal of his initial sentence, he had moved for a sentence reduction pursuant to § 3582(c)(2) based on the same retroactive Guidelines amendment that authorized Bowers’s § 3582(c)(2) motion in this case.
Before the Supreme Court, Dillon argued that Bookers excision of the portion of the Sentencing Reform Act making the Guidelines mandatory authorized the district court to ignore U.S.S.G. § 1B1.10 and impose a sentence lower than the amended Guidelines minimum. Id. at 2690. The Court disagreed. In relevant part, it reasoned:
Given the limited scope and purpose of § 3582(c)(2), we conclude that proceedings under that section do not implicate the interests identified in Booker. Notably, the sentence-modification proceedings authorized by § 3582(c)(2) are not constitutionally compelled. We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent Guidelines amendments. Rather, § 3582(c)(2) represents a congressional act of lenity.... Viewed that way, proceedings under § 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt. Taking the original sentence as given, any facts found by a judge at a § 3582(c)(2) proceeding do not serve to increase the prescribed range of punishment; instead, they affect only the judge’s exercise of discretion within that range. “[Jjudges in this country have long exercised discretion of this nature in imposing sentence within [established] limits in the individual case,” and the exercise of such discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts. Apprendi v. New Jersey,530 U.S. 466 , 481,120 S.Ct. 2348 ,147 L.Ed.2d 435 (2000) (emphasis in original). Because § 3582(c)(2) proceedings give judges no more than this circumscribed discretion, “[tjhere is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused.” Oregon v. Ice, 555 U.S. —, —,129 S.Ct. 711 , 713,172 L.Ed.2d 517 (2009).
Id. at 2692 (alterations in original). Having held that sentence-reduction proceedings under § 3582(c)(2) do not implicate the Sixth Amendment concerns addressed in Booker, the Court concluded that “the remedial aspect of the [Booker ] Court’s decision [does not] appl[y] to proceedings under that section____” Id. at 2693. Accordingly, the Court held that the district court had not erred in considering itself bound by the floor set by U.S.S.G. § 1B1.10. 12
Dillon’s holding that the Booker remedial opinion has no force in § 3582(c)(2) proceedings directly compels the conclusion that Booker’s other specific “remedial amendment ] to the Sentencing Reform Act” — its promulgation of unreasonableness review in lieu of the Act’s more circumscribed standard — does not “appl[y] to proceedings under that section” either. Accordingly, a defendant’s allegation of Booker unreasonableness in a § 3582(c)(2) proceeding does not state a cognizable “violation of law” that § 3742(a)(1) would authorize us to address on appeal.
*728
From here, it takes only a small inferential step to conclude that the same must be true of Rule 35(b) proceedings. The
Dillon
Court itself noted the similarities between proceedings under § 3582(c)(2) and Rule 35(b). Both are provisions of “limited scope and purpose.”
III
Because Bowers has not asserted a “violation of law” with respect to his sentence that we are empowered to address, this appeal is DISMISSED for want of jurisdiction.
Notes
. Whether to reduce a sentence pursuant to a Rule 35(b) motion is within the discretion of the district court.
See United States v. McDowell,
. Section 3582(c)(2) provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. § ] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
A district court “has the discretion to deny a section 3582(c)(2) motion, even if the retroactive amendment has lowered the guideline range.”
United States v. Ursery,
. Subsection (b) of § 3742, meanwhile, specifies when we may hear the government’s appeal of a sentence. This case does not present the question of when the government may appeal a district court’s determination of a sentence reduction motion.
. One might question whether this reasoning applies to a district court’s decision to
deny
a Rule 35(b) motion outright, which arguably does not "effectively imposed a
new
sentence.”
ed). Presumably, the Moran panel reasoned that the outright denial of a Rule 35(b) motion effectively reimposes the defendant’s original sentence; nothing in § 3742, after all, requires that a sentence be "new” to fall within that section’s ambit. Furthermore, the Moran panel also set forth two alternative rationales for its decision that Rule 35(b) appeals are governed by § 3742, which we address immediately below; neither of these alternative rationales supports a distinction between defendants’ appeals of Rule 35(b) grants and Rule 35(b) denials.
Our subsequent Rule 35(b) cases, too, have used broad language suggesting that both grants and denials are subject to the same jurisdictional analysis.
See United States v.
*720
Parker,
Lastly, we note that our sister circuits have stated quite explicitly that Rule 35(b) denials are to be treated the same way as grants for appellate purposes.
See, e.g., United States v. Manella,
. In fact, elsewhere in its opinion, the
Dillon
Court used language suggesting that the end result of a § 3582(c)(2) proceeding is the imposition of a sentence, notwithstanding the
*723
specific path a district court must take to get there. In its recitation of the facts, the Court described the district judge’s determination of the petitioner's § 3582(c)(2) motion as
“imposing] a sentence....”
. For example, Bowers argues that the district court failed to consider the disparity between Bowers’s sentence and those of his co-conspirators and the unjustifiable harshness with which the Guidelines continue to treat crack-cocaine offenses, even after the 2007 amendment.
. In fact, Bowers's sentence is already below the applicable Guidelines range.
. We note that, technically speaking, these cases involved denials of downward departures
upon initial sentencing,
rather than denials of sentence reductions at a later date. However, both types of sentence adjustments are discretionary, and we find the timing difference irrelevant to the proper allegation of a "violation of law.”
See Moran,
. By contrast, we held in
Moran
that a defendant properly alleges that his sentence was imposed "in violation of law” where he argues that the district court erroneously believed "that it lacked discretion, as a matter of law, to depart downward.”
. The Sentencing Reform Act's standard-of-review provision, § 3742(e), was in pari materia with § 3742(a), the jurisdictional provision we have already discussed. It stated:
Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
(3) is outside the applicable guideline range, and [the departure was improper for specified reasons]; or
*725 (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
. It appears that the sole authority to the contrary is a footnote of this circuit’s since-vacated panel opinion in United States v. Grant, which stated:
[W]e [do not] lack jurisdiction to review sentences imposed pursuant to a Rule 35(b) motion. To be lawful, a sentence must be reasonable. Thus, if an appellant contends that his sentence imposed after a Rule 35(b) motion is unreasonable, we would have jurisdiction to review it under § 3742(a)(1), since it would be an argument that the sentence was imposed in violation of law.
. This court reached a similar conclusion last year in
United States v. Washington,
. Our conclusion with respect to Rule 35(b) appeals is bolstered by this circuit’s line of cases holding that
Booker
did not alter the long-standing rule that "the decision by a district court not to depart downwards from the Guidelines is not reviewable on appeal unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.”
United States v. Puckett,
. Of course, notwithstanding our decision today, defendants may continue to appeal district-court determinations in sentence-reduction proceedings to the extent they allege "violation[s] of law" not premised on
Booker
and its progeny.
See Parker,