United States v. Edwards ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60326
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHESTER DAVID EDWARDS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:93cr008-B)
_________________________________________________________________
August 06, 1998
Before KING, SMITH, and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-appellant Chester David Edwards appeals the
district court’s order denying his motion for a reduction of his
sentence pursuant to 18 U.S.C. § 3582(c). We vacate the order
and remand the case.
I. BACKGROUND
Defendant-appellant Chester David Edwards was convicted
after a jury trial on two counts of witness intimidation in
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
relation to a federal probe into Edwards’s marijuana possession
and distribution. After the trial but before sentencing, Edwards
also pleaded guilty to possession with intent to distribute
marijuana, a lesser-included offense on one count of a
superseding indictment. The remaining counts of the superseding
indictment were dismissed.
Applying the Sentencing Guidelines in effect at the time,
the district court treated each of the 388 marijuana plants
involved in Edwards’s offense as equivalent to one kilogram of
marijuana. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c) (1993).
Using the figure of 388 kilograms of marijuana, Edwards’s base
offense level for the possession of marijuana count was 26; the
base offense level for the witness-intimidation counts was 22.
See id. §§ 2D1.1(c)(9), 2J1.2(c)(1), 2X3.1. Because the
conviction were grouped together for sentencing purposes pursuant
to § 3D1.2, the offense level for the marijuana count was used as
the offense level for all of the counts of convictions as it was
the highest offense level. See id. § 3D1.2. After the court’s
addition of two offense levels for obstruction of justice and
denial of an adjustment for acceptance of responsibility, Edwards
had a total offense level of 28 and a criminal history category
of I. These figures resulted in a Guidelines range of seventy-
eight to ninety-seven months of imprisonment. See id. ch. 5, pt.
A (sentencing tbl.). The maximum statutory term of imprisonment
for the witness-intimidation counts is not more than ten years
while the maximum term for the marijuana-possession count is not
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more than five years. See 18 U.S.C. §§ 1512(b), 1513(b)1; 21
U.S.C. § 841(b)(1)(D). The district court sentenced Edwards to
seventy-eight months of imprisonment on the witness-intimidation
counts and sixty months of imprisonment on the marijuana-
possession count to be served concurrently. The district court
also sentenced Edwards to three years of supervised release for
the witness-intimidation counts and five years of supervised
release for the marijuana-possession count, with all of the terms
to be served concurrently.
On direct appeal, we affirmed Edwards’s conviction and
sentence. Edwards subsequently filed a 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence, which the district
court denied. Edwards appealed the denial, but later voluntarily
withdrew his appeal. Edwards then filed the instant motion
pursuant to 18 U.S.C. § 3582(c)(2) to reduce his sentence based
upon a retroactive amendment to the Sentencing Guidelines and
upon other grounds. The district court denied the § 3582(c)(2)
motion, and Edwards appeals the denial of this motion.
II. DISCUSSION
Edwards claims error in the district court’s denial of his
§ 3582(c)(2) motion and its denial of the motion without first
1
Section 1513 has been amended since Edwards’s conviction
redesignating subsection (a), under which he was convicted, as
subsection (b).
3
conducting an evidentiary hearing.2 We will address each issue
in turn.
Section 3582(c)(2) permits a district court to reduce a term
of imprisonment if the sentencing range upon which the term was
determined is lowered by the Sentencing Commission and if the
reduction is consistent with the applicable policy statements of
the Sentencing Guidelines. See 18 U.S.C. § 3582(c)(2); United
States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). The applicable
policy statement is Sentencing Guidelines § 1B1.10, and it
2
Edwards also raises several other challenges to his
sentence: (1) the district court erred in its findings regarding
the amount of marijuana attributed to him, which did not have an
adequate factual basis; (2) the district court erred by upwardly
enhancing his offense level pursuant to § 3C1.1 for obstruction
of justice; and (3) the district court erred by denying him a
reduction in his offense level for acceptance of responsibility.
However, a § 3582(c)(2) motion is not the appropriate vehicle for
raising these issues because they do not involve a retroactive
application of a subsequently lowered Sentencing Guidelines
range. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir.
1994); United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994)
(holding that an unauthorized motion in district court could not
be considered a § 3582(c)(2) motion because the motion did not
address the retroactive application of a Sentencing Guidelines
amendment and should have been dismissed for lack of
jurisdiction); see also U.S. SENTENCING GUIDELINES MANUAL § 1B1.10
application note 2 (1997) (noting that all other Sentencing
Guidelines application decisions besides the application of the
amended guideline remain unaffected); United States v. Adams, 104
F.3d 1028, 1030-31 (8th Cir. 1997). On appeal, Edwards also
asserts that (1) the district court erred in not reducing his
offense level for being a minor or minimal participant, (2) the
district court erred in considering hearsay evidence at his
sentencing, (3) his counsel was ineffective, (4) he is “‘Actually
innocent’ of the sentence imposed,” and (5) application of
§ 2X1.1 requires a three-level reduction in his offense level.
Even if these issues were cognizable under a § 3582(c)(2) motion,
we will not consider them because Edwards did not raise them
before the district court. See Quenzer v. United States (In re
Quenzer), 19 F.3d 163, 165 (5th Cir. 1993).
4
designates Amendment 516, the 1995 amendment to § 2D1.1(c) which
reduces the marijuana plant equivalency from 1000 grams to 100
grams per plant, as retroactive. See U.S. SENTENCING GUIDELINES
MANUAL § 1B1.10(c) (1997); id. app. C, amend. 516; see also id.
§ 2D1.1(c) & tbl. note (E); Boe, 117 F.3d at 831.
The district court’s decision whether to reduce a sentence
under § 3582(c) is reviewed for an abuse of discretion. See
United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995).
In exercising that discretion, the court is to “‘consider the
sentence it would have originally imposed had the guidelines, as
amended, been in effect at the time.’” Id. (quoting U.S.
SENTENCING GUIDELINES MANUAL § 1B1.10(b)). The district court should
also consider the applicable factors set forth in 18 U.S.C.
§ 3553(a). See 18 U.S.C. § 3582(c); see also U.S. SENTENCING
GUIDELINES MANUAL § 1B1.10 background. These factors include (1)
the nature and the circumstances of the offense and the history
and characteristics of the defendant, (2) the need for the
sentence imposed to reflect the seriousness of the offense and to
protect the public from further crimes of the defendant, (3) the
kinds of sentences available, (4) any pertinent Guidelines policy
statement, and (5) the need to avoid unwarranted sentencing
disparities among defendants with similar records found guilty of
similar conduct. See 18 U.S.C. § 3553(a).
Edwards argued in his § 3582(c)(2) motion in the district
court that Amendment 516 should be applied to his case to reduce
his sentence. Amendment 516 to the Sentencing Guidelines treats
5
each marijuana plant as equivalent to 100 grams. See U.S.
SENTENCING GUIDELINES MANUAL § 2D1.1(c) & tbl. note (E) (1997); id.
app. C, amend. 516. Under the amendment, the amount of marijuana
attributable to Edwards would have been 38.8 kilograms, with a
resulting base offense level of 18. See id. § 2D1.1(c)(11).
After adding two offense levels for obstruction of justice, the
total offense level for the marijuana-possession count would have
been 20. The base and total offense level for the two witness-
intimidation counts would also have been 20. See id. § 2J1.2.
Accordingly, if the amendment were applied, Edwards’s highest
offense level would be 20. An offense level of 20 and a criminal
history category of I yield a sentencing range of thirty-three to
forty-one months of imprisonment. See id. ch. 5, pt. A
(sentencing tbl.).
In denying Edwards’s § 3582(c)(2) motion, the district court
acknowledged Amendment 516’s retroactivity and that it changed
the weight equivalency for marijuana plants. The district court
stated that
[i]t is well established that this decision is
within the discretion of this court. Upon due
consideration of the record in the underlying criminal
case and the factors generally considered in imposing
sentence set forth in 18 U.S.C. § 3553(a), the court
declines to exercise its discretion.
This statement by the district court failed to indicate in any
way which factors it found relevant to its decision or that it
considered, as required by the Sentencing Guidelines, the
sentence it would have imposed had the amended guideline been in
effect at the time of sentencing.
6
The government argues that this court can affirm the
district court based upon United States v. Whitebird, 55 F.3d
1007 (5th Cir. 1995). In Whitebird, we affirmed the district
court’s denial of the defendant’s § 3582(c)(2) motion without
stating any explicit reasons because it implicitly considered the
factors in § 3553(a). Id. at 1010. However, in Whitebird, the
district court made explicit reference to the motion and the
authorities cited in support and in opposition to the motion.
Id. Therefore, a review of the record in Whitebird made clear
the reasons upon which the district court relied in making its
decision. The instant case is unlike Whitebird because the
government never responded to Edwards’s motion in the district
court, which would provide an indication as to the factors which
the district court possibly found relevant. Nor is this case
like United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994), in
which we affirmed the district court’s denial of a reduction of
sentence based upon the district court’s stated reasons which
made no explicit reference to § 3553(a) or the factors listed
therein. In Shaw, the stated reasons indicated the relevant
factors that the district court considered in its decision and
that the district court would have imposed the same sentence
under the amended guideline by departing downward to a lesser
degree. See id. at 28-29.
Without a clear indication in the record regarding the
sentence the district court would have imposed under the amended
guideline or which § 3553(a) factors the district court was
7
implicitly relying upon, we cannot determine whether the district
court considered the sentence under the amended guideline or
relied upon relevant considerations in denying Edwards’s
§ 3582(c) motion. While the district court need not mechanically
list every consideration in § 3553(a), it must provide a clear
indication in the record “that the court has considered the
relevant matters, and that some reason is stated for the court’s
decision.” Adams, 104 F.3d at 1031.
Edwards also contends that the district court should have
held an evidentiary hearing prior to denying his § 3582(c)(2)
motion. Section 3582(c)(2) is silent regarding the right to a
hearing. See 18 U.S.C. § 3582(c)(2); see also United States v.
Townsend, 55 F.3d 168, 171-72 (5th Cir. 1995). Generally, a
district court must hold a hearing only if it is necessary
because the facts are in dispute. See Dickens v. Lewis, 750 F.2d
1251, 1255 (5th Cir. 1984). In deciding a § 3582(c)(2) motion,
the general rule applies requiring a factual dispute before an
evidentiary hearing is necessary applies. See United States v.
Shackleford, No. 94-50556, slip op. at 8-11 (5th Cir. June 5,
1995) (unpublished)3 (finding that a hearing was unnecessary
because no factual dispute was raised in the district court’s
denial of the § 3582 motion). Edwards does not allege any
factual disputes, nor does he demonstrate any need for the
3
“Unpublished opinions issued before January 1, 1996, are
precedent.” 5TH CIR. R. 47.5.3.
8
district court to conduct an evidentiary hearing on the motion.
See Shackleford, No. 94-50556, slip op. at 11.
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s
order and REMAND the case for the district court to reconsider
Edwards’s motion in a manner consistent with this opinion.
9