United States v. Davis, 679 F.3d 190, 195–96 (4th Cir.2012); Tadio, 663 F.3d at 1052;United States v. Rublee, 655 F.3d 835, 839 (8th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1647, 182 L.Ed.2d 243 (2012); United States v. Chapman, 532 F.3d 625, 629 (7th Cir.2008) (“[W]e conclude that the district court did not act in violation of the law when it considered the defendants' prior criminal histories and the seriousness of their offenses in determining the extent of the reductions granted under Rule 35(b).”); United States v. Neary, 183 F.3d 1196, 1198 (10th Cir.1999); United States v. Manella, 86 F.3d 201, 205 (11th Cir.1996) (per curiam).Rublee, 655 F.3d at 839;United States v. Shelby, 584 F.3d 743, 748–49 (7th Cir.2009); Manella, 86 F.3d at 204;see Davis, 679 F.3d at 196–97;Neary, 183 F.3d at 1198.

Although there exists some disagreement as to whether an appellate court retains jurisdiction over the appeal once it concludes that the sentence was lawfully imposed, compare Chapman, 532 F.3d at 629, 632 (affirming after concluding sentence was lawful pursuant to § 3742(a)), with United States v. Neary, 183 F.3d 1196, 1198 (10th Cir.1999) (dismissing after reaching same conclusion), the Supreme Court has made clear that the courts of appeals have jurisdiction to determine, at a minimum, whether the sentence was lawfully imposed.

"Jurisdiction to review the district court's grant of a Rule 35(b) motion arises, if at all, under 18 U.S.C. § 3742(a)." United States v. Neary, 183 F.3d 1196, 1197 (10th Cir. 1999). Section 3742 permits a defendant to appeal his sentence only if the sentence:

Under normal circumstances, we lack jurisdiction to review a sentencing court's discretionary denial of a downward departure. United States v. Neary, 183 F.3d 1196, 1197 (10th Cir. 1999); United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) (citing United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994)). However, we retain the ability to review a refusal to depart when the denial is based on an illegal factor, or an incorrect application of the Guidelines.

See United States v. Marks, 244 F.3d 971, 973 n. 1 (8th Cir. 2001) (listing cases). See, e.g., United States v. Neary, 183 F.3d 1196, 197-98 (10th Cir. 1999); United States v. Manella, 86 F.3d 201, 204-05 (11th Cir. 1996). This asymmetry results from the fact that the Rule says the court "may" (not must) reduce the sentence for substantial assistance, combined with the absence of any language "in the text of the rule [that] purports to limit what factors may militate against granting a Rule 35(b) reduction."

United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir. 1997) (quotation omitted). This court has also held that the term "illegal sentence" refers to cases in which the sentence imposed exceeds the statutory maximum, see United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n. 10 (10th Cir. 2005); the sentence is unconstitutional, see United States v. Groves, 369 F.3d 1178, 1182 (10th Cir. 2004); the sentence exceeds the court's statutory jurisdiction, see United States v. Hudson, 483 F.3d 707, 710 (10th Cir. 2007); or the sentence is based on race, gender, or other considerations contravening clearly established public policy, see United States v. Neary, 183 F.3d 1196, 1198 (10th Cir. 1999) (construing the term "facially illegal sentence"). Mr. Lyman has not argued, nor do the materials before us suggest, that his sentence is deficient in any such fundamental respect.

While we have held that the district court may consider only the defendant's assistance in deciding how far it will depart downward to reward the defendant, United States v. Pearce, 191 F.3d 488, 492 (4th Cir. 1999), several circuits have held the court may consider other factors in limiting the extent of the departure. United States v. Neary, 183 F.3d 1196, 1198 (10th Cir. 1999); United States v. Manella, 86 F.3d 201, 203-05 (11th Cir. 1996); United States v. Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir. 1994). Thus, the sentencing court may not grant a substantial assistance departure or augment such a departure based on factors other than assistance, but it may consider other factors to limit the departure.

The Guidelines unequivocally state that race, sex, national origin, creed, religion and socio-economic status are factors that "are not relevant in the determination of a sentence." U.S.S.G. § 5H1.10; see also United States v. Neary, 183 F.3d 1196, 1198 (10th Cir.1999). In response, the Government insists that the sentence is not based on gender. Of course, reliance on gender would be impermissible, but we do not need to reach the issue.

Stated differently, § 5K1.1 itself provides that, in deciding whether, and to what extent, to depart from the Guidelines, the court is free to consider any factors that it deems appropriate, and once the Government has filed a motion requesting a departure under § 5K1.1, the court is in no way constrained by the Guidelines in selecting a particular sentence which it deems appropriate. See also United States v. Neary, 183 F.3d 1196, 1197-98 (10th Cir. 1999). The Government in this case filed a motion under § 5K1.1 recommending that the court depart from the Guidelines by imposing a sentence of imprisonment 32 percent shorter than would otherwise be required by the Guidelines.

Rule 35(b) does not prohibit the consideration of these factors in deciding to what extent a defendant's sentence should be reduced for substantial assistance. 86 F.3d at 204-05 (footnotes omitted; emphasis added); accord United States v. Neary, 183 F.3d 1196, 1198 (10th Cir. 1999) (holding that district court may consider factors other than substantial assistance "in determining the size of a Rule 35(b) sentence reduction"). There is also a line of cases addressing whether a court may consider factors other than substantial assistance when deciding whether to reduce a sentence below a statutory mandatory minimum pursuant to 18 U.S.C. § 3553(e).