United States Court of Appeals, Eleventh Circuit.
No. 96-8191.
UNITED STATES of America, Plaintiff-Appellee,
v.
Roger Franklin COTHRAN, Defendant-Appellant.
March 11, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 2:92-CR-12-2-WCO), William C. O'Kelley,
District Judge.
Before BIRCH, Circuit Judge, and HILL and FARRIS *, Senior Circuit
Judges.
HILL, Senior Circuit Judge:
Appellant Roger Franklin Cothran appeals the sentence imposed
by the district court pursuant to his post-conviction motion for
modification of sentence under 18 U.S.C. § 3582(c)(2) predicated on
a retroactive amendment to the federal sentencing guidelines. We
affirm.
I.
Cothran was convicted in a jury trial of possessing marijuana
with intent to distribute, manufacturing marijuana, and conspiracy.
See 21 U.S.C. §§ 841(a)(1) and 846; 18 U.S.C. § 2. Cothran's
Presentence Investigation Report (PSI) attributed 206 marijuana
plants to him.1 He did not contest the amount. The district court
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
1
Paragraph six of the PSI reads: "According to Agent
Ferrier, Patch No. 1 contained 110 plants total ... Patch No. 2
contained 96 standing marijuana plants, for a total of 206
plants." The record reflects that the two patches were 500 feet
apart.
2
sentenced Cothran to sixty-five months in prison. This court
affirmed his convictions and sentence. Subsequently, amendment 516
to USSG § 2D1.1 was adopted. USSG App.C, amend. 516 (Nov. 1,
1995). It gives a court authority to modify a sentence under §
3582(c)(2), see USSG § 1B1.10(a), and changes the weight
equivalence of a marijuana plant for sentencing purposes from one
kilogram to one hundred grams.
Id. The amendment was made
retroactive by the sentencing commission. USSG § 1B1.10(c).
Seeking to benefit from this guideline change, Cothran filed
a § 3582(c)(2) motion for modification of sentence. At hearing,
Cothran argued that the 206 plants were the equivalent of 20.6
kilograms of marijuana, and that his revised guideline sentencing
range was now twenty-seven to thirty-three months. The district
court disagreed, reducing Cothran's sentence, but only from
sixty-five to sixty months, the statutory mandatory minimum for
offenses involving one hundred or more marijuana plants. 21 U.S.C.
§ 841(b)(1)(B)(vii); USSG § 5G1.1(b).3
II.
2
The United States Sentencing Guidelines (USSG) in effect
for offenses involving more than fifty marijuana plants, assigned
a weight value of one kilogram to each marijuana plant involved,
USSG § 2D1.1(c) (1992). Cothran was sentenced on the basis of
206 kilograms of marijuana. His guideline offense level 26 and
criminal history category I gave him a guideline sentencing range
of sixty-three to seventy-eight months.
3
While admitting that "procedurally I find myself with Mr.
Cothran in a bind if I interpret the law ... correctly,"
nevertheless, the district judge found that "I don't believe I
have the—in a modification, that I have the prerogative to
readjudicate these matters. All of the matters that you're
arguing there today were adjudicated in Mr. Cothran's case
earlier and have been affirmed by the Eleventh Circuit Court of
Appeals...."
On appeal Cothran contends that the district court erred in
refusing to re-examine the number of marijuana plants attributable
to him at resentencing.4 He argues that, under the plain language
of § 3582(c)(2), referring the court to consider the factors listed
in § 3553(a), the district court is authorized to conduct an
evidentiary hearing to consider new evidence on issues of fact
relevant to the retroactive guideline amendment.
The Government contends that the district court has discretion
under § 3582(c)(2) whether to modify a defendant's sentence at all,
United States v. Vazquez,
53 F.3d 1216, 1227 (11th Cir.1995), and
that the factors listed in § 3553(a) merely inform the court
whether to exercise its discretion or not. Further, the Government
argues that a § 3582(c)(2) resentencing is not a "full-blown"
resentencing proceeding but merely a form of limited remand. The
Government claims that 206 plants, uncontested by Cothran at his
original sentencing, are now the law of the case.
III.
While we have not yet addressed this issue in this circuit,
others have. They are in agreement that § 3582(c)(2) and related
sentencing guidelines do not contemplate a full de novo
resentencing. See United States v. Adams,
104 F.3d 1028, 1030-31
(8th Cir.1997); see United States v. Torres,
99 F.3d 360 (10th
Cir.1996), petition for cert. filed, --- U.S.L.W. ---- (U.S. Jan.
28, 1997) (No. 96-7743); see United States v. Breen,
928 F. Supp.
977 (D.Alaska), aff'd,
103 F.3d 141 (9th Cir.1996).
4
Cothran claims that new evidence would prove that he was
aware only of Patch No. 2 containing ninety-six plants, just
under the statutory mandatory minimum floor.
A court's power to reduce sentences under § 3582(c)(2) is
discretionary.
Vazquez, 53 F.3d at 1226. The district court may
reduce the previously imposed sentence "after considering the
factors set forth in section 3553(a) to the extent they are
applicable, if such a reduction is consistent with the applicable
policy statements issued by the Sentencing Commission." 18 U.S.C.
§ 3582(c)(2); see United States v. Brown,
104 F.3d 1254 (11th
Cir.1997). A court should "consider the sentence that it would
have imposed had the [retroactive] amendment(s) to the guidelines
listed in [USSG § 1B1.10(c) ] been in effect at the time the
defendant was sentenced." USSG § 1B1.10(b). In determining the
amended guideline range under USSG § 1B1.10(b), the court shall
substitute only the [retroactive] amendment ... for the
corresponding guideline provisions that were applied when the
defendant was sentenced. All other guideline application decisions
remain unaffected. USSG § 1B1.10, comment. (n.2) (Nov. 1, 1994).
This case is not unlike the Eighth Circuit case of
Adams, 104
F.3d at 1030-31. In Adams, federal agents discovered 110 marijuana
plants on property owned by Adams and his wife. In accordance with
a plea agreement, Adams was charged with the manufacture of
seventy-three plants and his son was charged with the manufacture
of thirty-seven plants. Adams was sentenced to thirty months in
prison.
Id.
Subsequently, Adams filed § 3582(c)(2) motions urging the
court to reconsider his sentence in light of amendment 516. The
district court denied both motions asserting that "[h]ad the
defendant been held accountable for the entire 110 marijuana
plants, the statutorily required minimum term of imprisonment would
have been five years."
Id. at 1030.
Finding error, the Eighth Circuit remanded for resentencing,
stating:
We ... believe ... that the district court was bound by its
previous determination with respect to the number of marijuana
plants that was relevant to Mr. Adams's sentence. In the
first place, although the finding is perhaps not technically
res judicata, it is unusual, for efficiency reasons if no
other, for trial courts to revisit factual findings. In the
second place, the district court had already made a finding
that the seventy-three plants for which Mr. Adams was going to
be held responsible "adequately reflect[ed] the seriousness of
the actual offense behavior," else the court could not have
approved the reduction in the charges against Mr. Adams at
all. See USSG § 6B1.2(a). In the third place, the sentencing
guidelines direct a district court in situations like the
present one to "consider the sentence that it would have
imposed had the amendment[ ] ... been in effect" at the time
of the original sentencing. See USSG § 1B1.10(b). We think
it implicit in this directive that the district court is to
leave all of its previous factual decisions intact when
deciding whether to apply a guideline retroactively.
Id. at 1030-31 (emphasis added).
We conclude that the district court was correct in declining
to re-examine the number of plants charged to Cothran. Cothran
received all to which he was entitled when the court, within its
discretion, reduced his sentence to the statutory mandatory
minimum.5
IV.
The district court is affirmed.
AFFIRMED.
5
As we find that the district court was bound by its
previous determination with respect to the number of marijuana
plants that were relevant to Cothran's sentence, we need not
reach Cothran's alternative argument that, as his original
guideline sentence was greater than his statutory minimum
sentence, the district court had never previously considered
number of marijuana plants for purposes of § 841(b)(1)(B)(vii).
