U.S. v. Townsend, 94-50572

• Citation: 55 F.3d 168
• Decision Date: 05 June 1995
• Docket Number: No. 94-50572,94-50572
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Wade TOWNSEND, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 168

55 F.3d 168

UNITED STATES of America, Plaintiff-Appellee, v. Robert Wade TOWNSEND, Defendant-Appellant.

No. 94-50572.

United States Court of Appeals,

Fifth Circuit.

June 5, 1995.

Robert Wade Townsend, Oakdale, LA, pro se.

Richard L. Durbin, Jr., Asst. U.S. Atty., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, KING and WIENER, Circuit Judges.

PER CURIAM:

Robert Wade Townsend was convicted of conspiracy to manufacture more than 100 grams of methamphetamine in violation of 21 U.S.C. Sec. 841(a) and 21 U.S.C. Sec. 846. Townsend was then sentenced to 300 months imprisonment, to be followed by eight years of supervised release. Additionally, Townsend was fined $5000. Subsequently, Townsend moved for a reduction in sentence under 18 U.S.C. Sec. 3582(c)(2), and the district court denied his motion. Townsend, proceeding pro se, appeals, arguing that the district court, in considering his Sec. 3582(c)(2) motion, improperly relied on testimony from a co-defendant's proceeding. Because we find that the district court did not inform Townsend that it intended to rely on that testimony and afford him a meaningful opportunity to respond to that testimony, we remand the decision of the district court.

I. BACKGROUND

Townsend was one of several individuals indicted and convicted in connection with a conspiracy to manufacture methamphetamine. Townsend appealed to this court, but we affirmed his conviction in United States v. Harris, 932 F.2d 1529 (5th Cir.1991), cert. denied, 502 U.S. 897, 112 S.Ct. 270, 116 L.Ed.2d 223 (1991). Townsend then attempted a collateral challenge to his conviction in a motion under 28 U.S.C. Sec. 2255, but this challenge was also unsuccessful.

On April 20, 1994, Townsend filed a motion for reduction in sentence pursuant to 18 U.S.C. Sec. 3582(c)(2). ¹ Specifically, Townsend argued that changes to Sec. 2D1.1 of the sentencing guidelines mandated a reduction in his sentence from a guideline range of 262-327 months to a guideline range of 100-125 months. ²

The court ordered the probation office to prepare an addendum to Townsend's presentencing report, taking into account the amended guidelines. The district court noted that "[u]sing the [amended] guidelines, the Probation Officer calculate[d] a [sentencing] range of 120-150 months." On May 16, 1994, the district court, "[h]aving reviewed the addendum prepared by the probation office," ordered the government to respond to Townsend's motion.

In its response, filed on May 27, 1994, the government argued that application note 12 to U.S.S.G. Sec. 2D1.1 was applicable to Townsend's sentence. Specifically, the government contended that because the amount of drugs seized did not reflect the severity of Townsend's offense, his sentence should be based in part on the size and capacity of the laboratory involved in the conspiracy, as well as the size of the conspiracy itself. Additionally, the government commented that:

If a hearing is held ... the Government would like to be given the opportunity to put on evidence to demonstrate the amount of methamphetamine that should be considered. At a hearing, a chemist could testify as to the amount of methamphetamine that could have reasonably been produced from the chemicals seized at the lab sites, and the size and capabilities of each lab, as well as any relevant conduct for which [Townsend] should be held accountable under the guidelines.

No hearing was held. Nevertheless, on June 15, the government filed a "supplemental response to defendant's motion for reduction of sentence," attaching, "for the Court's consideration, ... the transcript of the testimony of Joel Budge, Supervising Criminalist of the Texas Department of Public Safety Crime Laboratory, Drug Section...." Budge's testimony, taken in the hearing of one of Townsend's co-conspirator's motion for the reduction of sentence, indicated that the lab involved in the manufacture of the methamphetamines was capable of producing a maximum of five pounds of drugs.

On July 26, the district court issued an order denying Townsend's motion for a reduction of sentence. The district court found that Budge's testimony regarding the capabilities of the lab was "credible and reasonable, [and] would result in a base offense level of 32, which with a criminal history category of VI would result in guideline range of 210-262 months." The district court also discussed the magnitude of the conspiracy, noting that Townsend "was a part of a very large conspiracy involving a number of Defendants and a large amount of methamphetamine. The seriousness of the overall conspiracy is reflected in the fact that one co-conspirator received a life sentence and several others received sentences in the range of 200-300 months." Finally, after noting that Townsend was "implicated in the operation of additional methamphetamine laboratories," the court concluded that:

In considering whether to exercise the Court's discretion in this matter, the Court considers the factors set forth in Sec. 3553, particularly paragraphs (1), (2) and (6). Having done so, the Court is convinced that the 300 month sentence originally imposed is appropriate under either the current guidelines or those in effect in June of 1990.

Townsend appeals.

II. STANDARD OF REVIEW

The decision whether to reduce a sentence under Sec. 3582(c)(2) is discretionary, and, therefore, we review the district court's determination for abuse of discretion. United States v. Pardue, 36 F.3d 429, 430 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995); Shaw, 30 F.3d at 28-29.

III. DISCUSSION

Townsend argues that the district court erred in not reducing his sentence under the guidelines and in accepting Budge's testimony without allowing Townsend the opportunity to confront it.

The Guidelines themselves instruct that:

In determining whether, and to what extent, a reduction in sentence is warranted for a defendant eligible for consideration under 18 U.S.C. Sec. 3582(c)(2), the court should consider the sentence it would have imposed had the amendment[ ] to the guidelines ... been in effect at the time the defendant was sentenced.

U.S.S.G. Sec. 1B1.10(d). Additionally, Sec. 3582(c)(2) gives the district court discretion to reconsider a sentence when a change in the guidelines results in the possibility of a lower sentencing range. See Shaw, 30 F.3d at 28; United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990). When a court considers the propriety of a reduction of a sentence, Sec. 3582(c)(2) also mandates an examination of the factors set forth in 18 U.S.C. Sec. 3553(a) (the same factors considered in the initial sentence) ³ to the "extent they are applicable," and it allows the court to reduce the sentence of a defendant "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. Sec. 3582(c)(2).

In the context of the initial sentencing decision, the court may consider many factors in determining the appropriate punishment. Congress provided that "[n]o limitation shall be placed on the information concerning the background character, and conduct of a person convicted of an offense which a court ... may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. Sec. 3661; see also United States v. Berzon, 941 F.2d 8, 21 (1st Cir.1991) ("Generally, there is no limitation on the information which a court may consider in sentencing other than that the information bear sufficient indicia of reliability to support its probable accuracy."). Accordingly, we have held that "the court may base its sentence on matters outside the presentence report." United States v. Landry, 903 F.2d 334, 340 (5th Cir.1990); accord United States v. Otero, 868 F.2d 1412, 1415 (5th Cir.1989). Moreover, other courts have found that testimony from separate proceedings involving a co-defendant also properly may be considered in computing a sentence. See, e.g., Berzon, 941 F.2d at 19; United States v. Notrangelo, 909 F.2d 363, 365-66 (9th Cir.1990); United States v. Romano, 825 F.2d 725, 730 (2d Cir.1987).

In this case, we are not confronted with, nor do we reach, the question of whether the procedures involved in a Sec. 3582(c)(2) resentencing determination must match the procedures in an initial sentencing determination. In fact, in the instant case no resentencing took place. Nevertheless, given the broad discretion the district court has in considering whether resentencing is appropriate and considering the fact that Congress has dictated that the factors included in Sec. 3553 apply both to sentencing and to resentencing, we conclude that in deciding whether to resentence a prisoner under Sec. 3582(c)(2), a court may consider the testimony from other proceedings. This consideration, however, is not unrestrained; a defendant must have notice that the court is considering the testimony such that he will have the opportunity to respond to that testimony.

One of the factors Sec. 3553(a) requires a court to consider when deciding whether to modify a sentence (or when imposing a sentence) is "any pertinent policy statement issued by the Sentencing Commission ... that is in effect on the date the defendant is sentenced." The policy statement found at U.S.S.G. Sec. 6A1.3(a) states that "[w]hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor."

Similarly, in the sentencing context, we have stated that when a court intends to rely on matters beyond those in the presentencing report, "the district court must provide defense counsel with an opportunity to address the court on th[ose] issue[s]." Landry, 903 F.2d at 340; see also Otero, 868 F.2d at 1415 ("If ... the court intends to...