Lead Opinion
OPINION OF THE COURT
Defendant Lydia Cooper contends her criminal sentence was unreasonable under United States v. Booker,
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.
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.
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.
The District Court denied Cоoper’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 eircum-stances. 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 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.”
We havе 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”).
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,
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,
(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;
(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,
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,
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,
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,
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.
[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,
While we review for reasonableness whether a sentence lies within or outside
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,
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.
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 partiсular 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 overrepresented 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,
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.
IV.
The judgment of sentence will be affirmed.
Notes
. Cooper objected to her classification as a career offender at sentencing, but does not challenge that classification here.
. Pre-guidelines sentences were based on the facts of the crime, the criminal history of the defendant, the defendant’s 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, Congrеss 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.
. 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 there is no sentencing guideline and is plainly unreasonable.
. 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 tаken jurisdiction over sentencing appeals under both statutes. See, e.g., United States v. Graham,
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,
. Although only the Courts of Appeals for the Eighth and Eleventh Circuits have specifically addressed jurisdiction, United States v. Frokjer,
. 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.
. We do not address here the standard of proof for finding a separate crime under relevant law.
. We are well aware that sentencing judges normally state and resolve sentenсing issues from the bench while the sentencing proceeding is underway. As we have previously observed, " ‘[djistrict 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,
.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 an
. 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. 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,
. We note the Seventh Circuit's observation that "reasonableness is a range, not a point.” United States v. Cunningham,
Concurrence Opinion
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 dо not agree that we have jurisdiction under 18 U.S.C. § 3742(a)(1)
It is beyond peradventure that Cooper’s three substantive contentions — (1) that the court erred in denying her request for a downward departure;
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,
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,
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:
*335 GOVERNMENT: [UJnder 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. 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.
No constitutional right of appeal exists; the right to appeal is based on statute alone. Abney v. United States,
In 1984, Congress passed the Sentenсing 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.
In Booker, the Court excised two sections from the SRA as violative of the
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 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 Scаlia 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)(l) 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,
Justice Scalia then explained that “[b]e-fore 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,
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,
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,
II.
“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,
Our examinаtion 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*338 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 37Jp2 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 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 (1st Cir.1989) (sentencing judge may have been unaware of power to depart from Guidelines), would be retained.
Colon,
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,
[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 persuasive analysis of United States v. Colon,884 F.2d 1550 (2d Cir.1989) supports our conclusion.
Denardi,
This interpretation has echoed beyond the Courts of Appeals for the Third and Second Circuits. See United States v. Porter,
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 superfluоus the other subsections of § 3742(a). The majority ignores this principle by convert
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 reasonableness” standard into the appellate jurisdiction requirements. I do not agree.
We must never equate a court’s statement of a standard of revieiv 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.,
Our task in interpreting a statute is to “give every word some operative effect,” Cooper Indus., Inc. v. Aviall Serv., Inc.,
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,
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,
In hеr 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,
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 contentiоn, 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.
Maj. Op. at 331 - 332.
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.
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.
. 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;
(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)(ll) 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.
. 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 to review a district court’s decision not to depart. See United States v. Denardi,
. 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,
. "[W]e must rеtain 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,
. The majority even recognizes that its holding is in tension with Denardi. Maj. Op. at 328 - 329. It also hints that we can no longer rely, as we did in Denardi, upon Congress’ intent in enacting § 3742(a)(1). See id. at 329 ("[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 Guide-, lines 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 333, 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 congressiоnal intent, either governs our interpretation of § 3742(a)(1) or it does not.
. 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.
. 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,
. Although I cannot reach the question of whether the sentence received by Cooper was reasonable, see Firestone Tire & Rubber Co. v. Risjord,