United States Court of Appeals, Eleventh Circuit.
No. 96-8380
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Southerland CARTER, Defendant-Appellant.
April 18, 1997.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CR-592-2), B. Avant Edenfield, Chief
Judge.
Before TJOFLAT, EDMONDSON and COX, Circuit Judges.
PER CURIAM:
Michael Southerland Carter appeals the denial of his motion
for sentence reduction under 18 U.S.C. § 3582(c)(2). For the
reasons below, we vacate and remand.
FACTS:
Carter pled guilty in 1992 to one count of conspiracy to
possess marijuana with intent to distribute. The PSI found that
Carter was responsible for 950 kilograms of marijuana that he had
imported into Georgia from other states. Thus, the PSI assigned
Carter a base offense level of 30. After adding and subtracting
adjustments, the PSI calculated Carter's total adjusted offense
level to be 32. Carter fell in Criminal History Category I, and
thus his guideline sentencing range was 121 to 151 months.
At the sentencing hearing, Carter challenged the PSI's
quantity finding, arguing that it was based on the weight of wet
marijuana. He explained, through counsel, that the marijuana had
been soaked with water before transport to Georgia. Carter alleged
that he had to dry the marijuana before he could resell it, and he
further claimed that the dried marijuana "didn't probably weigh
half of what it weighed in its wet-down form." The court credited
Carter's allegations, but held that the weight to be used in
calculating his base offense level was the marijuana's gross
weight, which included the weight of the water. Thus, the court
adopted the PSI's factual findings and guideline calculations.
The district court initially sentenced Carter to 135 months'
imprisonment. Pursuant to a government motion under U.S.S.G. §
5K1.1, however, the court later departed downward to 97 months'
imprisonment to reflect Carter's substantial assistance in criminal
prosecutions. Subsequently, the government filed a motion under
Federal Rule of Criminal Procedure 35(b) to further reduce Carter's
sentence in acknowledgment of his continued assistance in
prosecutions. The district court granted this motion and reduced
Carter's sentence to 80 months' imprisonment.
Effective November 1, 1993, the Sentencing Commission amended
the guidelines to provide that a controlled substance's weight for
sentencing purposes "does not include materials that must be
separated from the controlled substance before the controlled
substance can be used." U.S.S.G.App. C, amend. 484 (codified as
U.S.S.G. § 2D1.1, comment. (n. 1)). The Commission authorized
retroactive application of this amendment. U.S.S.G. § 1B1.10(a),
(c), p.s.
Effective November 1, 1995, the Commission amended the
guidelines again to clarify the language added by the previous
amendment. This new amendment expressly provided that a court
should approximate the dry weight of marijuana that is too wet to
consume. U.S.S.G.App. C, amend. 518 (codified as U.S.S.G. § 2D1.1,
comment. (n. 1)). Unlike the previous amendment, however, this new
amendment was not made retroactive. See U.S.S.G. § 1B1.10(a), (c),
p.s.
In light of these amendments, Carter brought a motion for
sentence reduction under 18 U.S.C. § 3582(c)(2), seeking to have
his sentence recalculated based on the dry weight of the marijuana.
Carter again argued that the PSI's quantity finding was based on
the wet weight of the marijuana, and alleged that the dry weight of
the marijuana was less than half the wet weight. He also asserted
that three government witnesses—Vernon Smith, J.W. Edwards, and
Johnny Johnson—could verify his claims.
The district court denied relief. After reviewing Amendments
484 and 518, the court concluded that it was unclear whether
retroactive recalculation of dry marijuana weight was authorized.
Nevertheless, the court assumed, without deciding, that Carter was
eligible for such relief under Amendment 484. The Court also
credited Carter's allegation that the PSI's quantity finding was
based on the wet weight of the marijuana. Because this case
involved an "historical drug conspiracy" and little marijuana had
been seized, however, the court found that "it would be impossible
to estimate the weight of the dried marijuana."
Carter appeals the denial of his motion.
DISCUSSION:
Carter contends that the district court erred in denying his
motion. Citing United States v. Smith,
51 F.3d 980 (11th
Cir.1995), Carter argues that he is clearly entitled to the
retroactive benefit of Amendments 484 and 518. He further argues
that the district court should hold an evidentiary hearing to
determine the dry weight of the marijuana.
Without addressing the retroactivity of Amendment 484, the
government contends that Amendment 518 is not retroactive. The
government further contends that, even if Amendment 518 is
retroactive, the district court did not abuse its discretion in
denying Carter's motion. The government argues, inter alia, that
no evidence can be adduced concerning the dry weight of the
marijuana. Finally, the government asserts that Carter defaulted
on this claim by failing to raise it on direct appeal.
In reply, Carter argues, inter alia, that the dry weight of
the marijuana may be "difficult" to estimate, but that it is not
"impossible."
The government failed to raise its procedural-default
argument below, and thus the issue is waived for purposes of
appeal. Hansen v. United States,
956 F.2d 245, 247 (11th
Cir.1992).
ISSUE 1: Whether Carter is eligible for a sentence reduction
In cases where the defendant was sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission, the district court may reduce
the term of imprisonment if such a reduction is consistent with the
applicable policy statements issued by the Commission. 18 U.S.C.
§ 3582(c)(2). According to the applicable guidelines policy
statement, a defendant is eligible for retroactive application of
a subsequently enacted guideline amendment if the amendment is
listed in U.S.S.G. § 1B1.10(c). U.S.S.G. § 1B1.10(a), p.s.
Amendment 484, which established the initial rule excluding
unusable materials from drug weight, is among the amendments listed
in § 1B1.10(c). Amendment 518, which clarified this rule with
respect to wet marijuana, is not listed. Thus, Carter is eligible
for relief only if Amendment 484 is interpreted as excluding water
from the weight of marijuana.
In United States v. Smith,
51 F.3d 980 (11th Cir.1995), this
Court interpreted Amendment 484's language as requiring a
sentencing court to approximate the dry weight of marijuana that is
too wet to
consume. 51 F.3d at 981-82. The Court cited Amendment
518—which was then pending before Congress—as support for this
interpretation.
Id. at 981. Nevertheless, the Court merely used
Amendment 518 as "subsequent legislative history."
Id. The actual
language that the Court interpreted to require exclusion of water
weight was that of Amendment 484.
Thus, Smith appears to authorize the relief that Carter seeks.
ISSUE 2: Whether the district court abused its discretion in
denying Carter a sentence reduction
The decision whether to retroactively apply an amendment to
a particular defendant is a matter within the discretion of the
district court. United States v. Vazquez,
53 F.3d 1216, 1227-28
(11th Cir.1995).
When determining whether to reduce the defendant's sentence,
the court should consider the factors set forth in 18 U.S.C. §
3553(a) "to the extent they are applicable." 18 U.S.C. §
3582(c)(2). The court is not required to make specific findings
regarding the applicability of each § 3553(a) factor, but it should
state the reasons for its ruling. See United States v. Dorrough,
84 F.3d 1309, 1311 (10th Cir.1996), cert. denied --- U.S. ----,
117
S. Ct. 446,
136 L. Ed. 2d 342; cf. United States v. Parrado,
911 F.2d
1567, 1572-73 (11th Cir.1990) (a district court is not required to
rule on the applicability of each particular § 3553(a) factor when
imposing sentence, but it should tailor its comments to show that
the sentence imposed is appropriate in light of the these factors),
cert. denied,
498 U.S. 1104,
111 S. Ct. 1005,
112 L. Ed. 2d 1088
(1991). The court should also consider the sentence it would have
imposed had the amendment been in effect at the time the defendant
was sentenced. U.S.S.G. § 1B1.10(b), p.s.
Here, the district court provided only one reason for denying
Carter's motion: it found that estimating the dry weight of the
marijuana would be "impossible." The record does not support this
finding. Although the actual marijuana is not available to weigh,
there are witnesses who can testify concerning the degree of weight
reduction that drying entailed. Carter himself is such a witness.
Furthermore, the PSI indicates that Carter had partners in his
marijuana business. These individuals may be able to testify in
support or contradiction of Carter's allegations. Finally,
Carter's motion identified three witnesses that allegedly could
verify his claims.
Thus, because the district court erred in concluding that it
would be impossible to estimate the marijuana's dry weight, we
vacate and remand.
VACATED and REMANDED.
