# United States v. Lydia Cooper > Court of Appeals for the Third Circuit · February 14, 2006 · 437 F.3d 324 URL: https://www.frixlaw.com/law-library/cases/9498671 ## Case - **Full name:** UNITED STATES of America v. Lydia COOPER, Appellant - **Court:** Court of Appeals for the Third Circuit - **Decided:** February 14, 2006 - **Citations:** 437 F.3d 324; 2006 U.S. App. LEXIS 3453; 2006 WL 330324 - **Precedential status:** Published - **Opinion:** Concurring in part by Aldisert - **Judges:** Scirica, Van Antwerpen Aldisert, Aldisert - **Cited by:** 921 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007). - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498671 ## How later opinions describe it (automated extraction) - holding that the record must indicate that the sentencing court gave meaningful consideration to the § 3553(a) factors and that it addressed all arguments raised by the parties that rest upon “a ground of recognized legal merit” - explaining that "there is no way to review [a court's] exercise of discretion" if it "does not articulate the reasons underlying its decision" (quoting United States v. Johnson, 388 F.3d 96, 101 (3d Cir.2004)) - recognizing that the District Court does not have to “discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing” - explaining that a trial court is not obligated to “discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing” - explaining that to comply with the obligation to consider the relevant sentencing factors, a “court need not discuss every argument made by a litigant if an argument is clearly without merit” ## Opinion text ALDISERT, Circuit Judge, 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 do not agree that we have jurisdiction under 18 U.S.C. § 3742 (a)(1) 12 to review Cooper’s argu *334 ment that the sentence imposed by the District Court was unreasonable. It is beyond peradventure that Cooper’s three substantive contentions — (1) that the court erred in denying her request for a downward departure; 13 (2) that the court did not adequately consider the § 3553(a) factors in conjunction with the advisory Guidelines; and (3) that the sentence imposed by the court was unreasonable under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005) — do not implicate subsections (2), (3) and (4) of § 3742(a). Thus, I agree that for this Court to have jurisdiction to decide this appeal jurisdiction must lie in subsection (1) of § 3742(a) on the theory that the sentence was “imposed in violation of law.” My view regarding our jurisdiction under § 3742(a)(1) to review a sentence within the Guidelines range can be succinctly stated: (1) Booker did not expand the scope of our jurisdiction; (2) the phrase “in violation of law,” as used in § 3742(a)(1), is to be construed narrowly to encompass only demonstrable constitutional or statutory violations, such as the denial of a procedural right; (3) that a sentence may be unreasonable does not mean that it was “imposed in violation of law” under § 3742(a)(1); and (4) accordingly, we only review for reasonableness if we otherwise have jurisdiction under § 3742(a). 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, 892 F.2d at 271-272. 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, 125 S.Ct. at 764 . Properly read, Booker merely set forth a standard of review to apply for sentencing appeals over which we otherwise have jurisdiction under § 3742(a). Because I refuse to conflate our jurisdiction with our standard of review, I respectfully dissent. 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, 431 U.S. 651, 656 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977); see also McKane v. Durston, 153 U.S. 684, 687 , 14 S.Ct. 913 , 38 L.Ed. 867 (1894) (“A review by an appellate court on the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law.”). Appeals as of right in criminal cases were not permitted until 1889, and even then this statutory right was limited to cases where the sentence provided by law was death. Abney, 431 U.S. at 656 n. 3, 97 S.Ct. 2034 . It was not until 1911 that Congress created a general right of appeal for criminal defendants. Id. In 1984, Congress passed the Sentencing 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 *336 Sixth Amendment. 14 It voided both 18 U.S.C. § 3553 (b), which makes the Guidelines mandatory, and § 3742(e), which lays out the standards of review for the Courts of Appeals. Booker, 125 S.Ct. at 764 . By excising these portions of the SRA, the Court (1) made the Guidelines advisory and (2) replaced the standard of review provisions with an implied one for “reasonableness,” a standard “consistent with the appellate sentencing practice during the last two decades.” Id. at 764-766. 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 Scalia 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, 125 S.Ct. at 791 n. 5 (Scalia, J., dissenting) (emphasis added; citation omitted). 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, 418 U.S. 424, 443 , 94 S.Ct. 3042 , 41 L.Ed.2d 855 (1974)). He then analyzed several Supreme Court decisions that limited appellate review to those sentences imposed outside the statutorily prescribed range. Id. at 792. 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, 418 U.S. at 431 - *337 432, 94 S.Ct. 3042 ; see United States v. Adams, 759 F.2d 1099, 1112 (3d Cir.1985) (“Generally, if the sentence falls within the statutory maximum, the matter is not reviewable on appeal.”); United States v. Felder, 706 F.2d 135, 137 (3d Cir.1983) (“If a sentence is within the statutory limitation and there is no defect in the sentencing procedure, we do not interfere with the trial court’s discretion as to the sentence imposed.”). Accordingly, the majority’s insistence that unreasonableness triggers our appellate jurisdiction runs counter to the Court’s teaching in Dorszynski and the specific holdings of this Court in Adams and Felder . 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, 884 F.2d 1550, 1555 (2d Cir.1989) (“Congress’s failure to provide appellate review of sentences within the Guidelines correctly calculated was thus a conscious decision consistent with its overall purpose.”); Denardi, 892 F.2d 269, 271 (3d Cir.1989) (holding that “[t]he persuasive analysis of [Colon] supports our conclusion” that § 3742(a)(1) does not encompass all arguable claims of error in sentencing). It must be noted that the Booker majority kept intact all the provisions of § 3742(a) and did not suggest or imply that in enacting the SRA Congress intended any interpretation of the § 3742(a)(1) jurisdictional exportation, “imposed in violation of law,” that would expand jurisdiction under this phrase beyond that which existed prior to the SRA’s adoption. See United States v. Hahn, 359 F.3d 1315 , 1321 n. 6 (10th Cir.2004) (“[Section] 3742(a)(1) manifests the congressional intent to codify pre-1984 jurisdiction over sentencing appeals.”). To the contrary, the polestar of the Court’s opinion in Booker is an insistence, time and again, that, subject to constitutional constraints, we must pay inerrant and unfailing fealty to the intent of Congress when interpreting the SRA. 15 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, 534 U.S. 19, 31 , 122 S.Ct. 441 , 151 L.Ed.2d 339 (2001) (quotation omitted). Applying this canon in United States v. Colon, the Second Circuit explained why § 3742(a)(1) cannot be read to encompass all arguable claims of error in sentencing: Our examination 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, 884 F.2d at 1553 (emphasis added). 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, 892 F.2d at 272 . Speaking through Judge Seitz, we said: [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, 892 F.2d at 272 . This interpretation has echoed beyond the Courts of Appeals for the Third and Second Circuits. See United States v. Porter, 909 F.2d 789, 794 (4th Cir.1990) (“18 U.S.C. § 3742(a) also does not provide for appellate review of a sentencing court’s discretion in setting a sentence anywhere within a properly calculated sentencing range.”); United States v. Guerrero, 894 F.2d 261, 267 (7th Cir.1990); United States v. Garcia, 919 F.2d 1478, 1482 (10th Cir.1990). Moreover, in subsequent cases we have re-affirmed our position stated in Denardi . For example, in United States v. Torres, we said that “where the sentence was lawfully imposed and is within the applicable Guideline range, we lack jurisdiction to review the sentence.” 251 F.3d 138, 151-152 (3d Cir.2001) (citing United States v. Graham, 72 F.3d 352 , 358 n. 8 (3d Cir.1995)). 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 superfluous the other subsections of § 3742(a). The majority ignores this principle by convert *339 ing “any arguable claim of error in sentencing, including a claim that a particular sentence is unreasonably high or low,” Colon, 884 F.2d at 1553 , into a violation of law for purposes of § 3742(a)(1). 16 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., 511 U.S. 375, 377 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (1994) (“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction.”) (citations omitted). 17 Our task in interpreting a statute is to “give every word some operative effect,” Cooper Indus., Inc. v. Aviall Serv., Inc., 543 U.S. 157 , 125 S.Ct. 577, 582-584 , 160 L.Ed.2d 548 (2004), and my refusal to read into Booker a modification of the applicable jurisdictional standards under § 3742(a) comports with Congress’ plain wording of the statute, our inability to prescribe our own appellate jurisdiction, and the Supreme Court’s indication that the non-excised portions of the SRA “remain valid.” Booker, 125 S.Ct. at 764 . *340 The Supreme Court itself stated that the SRA “continues to provide for appeals from the sentencing decisions [under § 3742(a)].” Booker, 125 S.Ct. at 765 (emphasis added). The Court’s use of the operative word “contihues” suggests that the appellate jurisdiction arising under § 3742(a) does not change after Booker . The primary change, therefore, is that courts are now to apply a reasonableness standard to guide their review of cases otherwise arising under our § 3742(a) jurisdiction. 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, 884 F.2d at 1553 . A demonstrable error of law would not encompass an abuse of discretion or an unreasonable sentence, but rather an abuse such as the denial of a procedural right. See United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989) (holding that “violation of law” connotes a limited circumstance such as denial of a procedural right, not an abuse of discretion); see, e.g., Booker, 125 S.Ct. at 756-757 (indicating that a mandatory application of the Guidelines would be a violation of the Sixth Amendment). Indeed, if we were supposed to consider the reasonableness of sentences or whether a district court acted within its discretion, Congress would have so indicated. See Tucker, 892 F.2d at 10 (“If Congress meant ‘abuse of discretion,’ it would have said so.”); Denardi, 892 F.2d at 272 . 18 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, 536 U.S. at 628, 122 S.Ct. 2450 (upholding the Ninth Circuit’s decision to review the merits of a case to determine whether it had jurisdiction under § 3742(a)(1)). If they do, then this Court can engage in the reasonableness review set forth in Booker . If not, we lack jurisdiction and the appeal must be dismissed. In her 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, 125 S.Ct. at 757 . *341 In an excellent presentation, the majority has summarized how the District Court adequately considered the § 3553(a) factors in setting sentence and appropriately addressed the reasons for the sentence it pronounced. The majority states that: 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 contention, 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. 19 The sentence did not violate Booker’s constitutional concerns about the use of the advisory Guidelines in conjunction with the other § 3553(a) factors. Accordingly, there was no “violation of law,” and we lack jurisdiction to determine whether Cooper’s sentence was reasonable. 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; *334 (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 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, 892 F.2d 269, 271-272 (3d Cir.1989). . 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, 125 S.Ct. at 764 . . "[W]e must retain 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, 125 S.Ct. at 764 (emphasis added; citations omitted). ”[W]e have examined the statute in depth to determine Congress’ likely intent in light of today’s holding.” Id. at 767-768 (emphasis removed and added). "We believe our inference [of reasonableness review to be] a fair one linguistically, and one consistent with Congress’ intent to provide appellate review.” Id. at 766 (emphasis added). “[These modifications are] more consistent with Congress’ likely intent in enacting the Sentencing Reform Act (1) to preserve important elements of that system while severing and excising two provisions (§§ 3553(b)(1) and 3742(e)) than (2) to maintain all provisions of the Act and engraft today’s constitutional requirement onto that statutory scheme.” Id. at 768 (emphasis added). . 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 congressional 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, 240 F.3d 246, 247 (3d Cir.2001) (observing that when jurisdiction depends on petitioner's success on the merits, we dismiss for lack of jurisdiction if petitioner’s argument fails on the merits). Here, the majority concludes that Cooper’s sentence is reasonable, but it nonetheless affirms the District Court rather than dismissing the appeal for lack of jurisdiction. By affirming rather than dismissing, the majority is exercising jurisdiction over an appeal from a sentence that was reasonable. Surely, the majority cannot mean to say that a reasonable sentence is also "imposed in violation of law” under § 3742(a)(1). . Although I cannot reach the question of whether the sentence received by Cooper was reasonable, see Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 , 101 S.Ct. 669 , 66 L.Ed.2d 571 (1981) (“If the appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over.”), were I permitted to discuss this point, I would agree with the majority's formulation of reasonableness. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498671. Public record. Not legal advice.