United States v. Piper

• Decision Date: 25 October 2016
• Docket Number: No. 15-3288,15-3288
• Parties: United States of America, Plaintiff–Appellee, v. Frank Sharron Piper, III, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

839 F.3d 1261

United States of America, Plaintiff–Appellee,

v.Frank Sharron Piper, III, Defendant–Appellant.

No. 15-3288

United States Court of Appeals, Tenth Circuit.

Filed October 25, 2016

Paige A. Nichols, Research & Writing Specialist (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas, appearing for Appellant.

James A. Brown, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Topeka, Kansas, appearing for Appellee.

Before KELLY, HARTZ, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Federal prisoner Frank Sharron Piper, III, appeals the district court's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we affirm.

I. BACKGROUND

A. Conviction and Sentence

On November 28, 2012, a grand jury indicted Mr. Piper for participating in a cocaine conspiracy in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and for various related offenses. On January 8, 2014, he pled guilty to the conspiracy charge. On May 14, 2014, the district court sentenced Mr. Piper to 135 months in prison. Mr. Piper had been on release from December 6, 2012 until he was sentenced.

B. Motion to Reduce Sentence

On November 1, 2014, Amendment 782 to the United States Sentencing Guidelines (“U.S.S.G.”) came into effect, retroactively lowering the base offense levels for certain drug offenses. The parties agree that Amendment 782 applies to Mr. Piper's crime of conviction.

1. Mr. Piper's Motion for a Sentence Reduction

On September 16, 2015, Mr. Piper moved for a reduced sentence under Amendment 782 and 18 U.S.C. § 3582(c)(2) (authorizing district courts to modify sentences based on retroactive guideline amendments). His supporting Memorandum of Law included only broad policy-based arguments. He argued, for example, that long drug sentences overcrowd prisons, limit inmate access to anti-recidivism programs, incapacitate prisoners long after they are likely to threaten public safety, and fail to deter crime.

2. The Government's Response

In response, the Government argued that, despite Mr. Piper's eligibility for a reduction under Amendment 782, he should not receive one because, after he pled guilty but before he was sentenced, he created a rap video to intimidate four cooperating witnesses whose statements had appeared in Mr. Piper's Presentence Investigation Report (“PSR”).

The prosecution said the video was titled “No Leaks Frank James—State to State,”¹ and that “No Leaks” referred to a rap record label and a group of people whose “CEO” was Mr. Piper. ROA, Vol. I at 113–14. The Government described the video in its response brief to the motion as including:

• Photographs of pages from the PSR and excerpts from the PSR displayed with photographs of the cooperating witnesses.

• he defendant rapping an anti-cooperation message—referencing “conspiracy” as “the hardest charge to beat” and someone who “would try to tell on me,” then using his index finger to simulate pulling a trigger.

• A bound and gagged hostage figure in a dark room, who is later shown with his head hanging forward, nearly motionless.

• The defendant referencing those who “told on me” and stating “stop snitchin'.”

• A screen caption instructing to send letters and pictures to the defendant's prison address.

Id. at 114–15.

Although the prosecution said the video “was saved onto a compact disc by law enforcement,” the Government did not provide the district court with a copy, relied solely on its own description and conclusions, and provided no sworn affidavit or transcript of the video's contents. Id. at 114.² After describing the video, the Government asserted the co-CEO of No Leaks, Michael Duane Mills, edited the video, uploaded it to YouTube on November 13, 2014, when Mr. Piper was in prison, and removed it from YouTube five days later.

The Government argued these facts demonstrated “a continued need to protect the public from further crimes of [Mr. Piper] and a continued need to afford adequate deterrence.” Id. at 126. A reduced sentence, it said, was therefore unwarranted under the 18 U.S.C. § 3553(a) factors, which a district court must consider when determining whether to reduce a sentence under § 3582(c)(2).³

3. Mr. Piper's Reply

Mr. Piper's reply did not contest the Government's description of the video's contents. It instead argued for a reduced sentence because the Government had failed to show “Mr. Piper had anything to do with disseminating the video.” Id. at 129. It noted that Mr. Piper “had been in federal custody for months before the video was released.” Id .

4. The District Court's Denial of Mr. Piper's Motion

The district court denied Mr. Piper's motion for a reduced sentence based on the following uncontested facts:

• “On November 18, 2014, government agents learned that a video titled ‘No Leaks Frank James—State to State’ had been uploaded to YouTube.... [I]t was removed later that day.”

• “The video includes still photographs of pages from defendant's presentence investigation report which summarize statements of cooperators. The video displayed these excerpts next to still photographs of the individuals who made the statements.”

• “The video also showed defendant and another individual simulating a trigger-pulling motion with their index fingers when the rap lyrics reached ‘... try to tell on me.’ ”

• Mr. Piper “created [the rap video] while on release in this case and allowed someone else to preserve a copy.”

Id. at 136.

After reciting in a footnote that “[Mr. Piper did] not suggest any innocent motive in creating the video,” the district court stated it had “reasonably conclude[d] that [Mr. Piper] created the video so that it would be disclosed, viewed and construed as a threat to cooperators.” Id. at 137–38 n.1.⁴

Having found these facts, the court denied Mr. Piper's motion, reasoning:

[T]he Court has considered the scope of defendant's conduct in connection with the instant offenses and the significant danger to the community by defendant's participation in the distribution of some 45 kilograms of cocaine. After balancing the above factors and considering the post-sentencing discovery of defendant's rap video, the Court finds that a sentence of 135 months in prison (the original sentence and near the middle of the amended guideline range of 121 to 151 months) is sufficient but not greater than necessary to meet the sentencing factors set forth in Section 3553(a).

Id. at 137–38.

II. DISCUSSION

Mr. Piper argues the district court (1) failed to address the policy arguments in his motion, (2) exceeded its § 3582(c)(2) authority when it considered newly alleged presentencing conduct not addressed at the original sentencing, (3) made fact findings regarding the video without holding a hearing, and (4) erroneously concluded Mr. Piper intended the video to be viewed by and construed as a threat to the cooperating witnesses.

A. Standards of Review

“We review for an abuse of discretion a district court's decision to deny a reduction of sentence under 18 U.S.C. § 3582(c)(2).” United States v. Osborn , 679 F.3d 1193, 1195 (10th Cir. 2012). “A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” United States v. Battle , 706 F.3d 1313, 1317 (10th Cir. 2013). “The scope of a district court's authority in a sentencing modification proceeding under 18 U.S.C. § 3582(c)(2) is a question of law that we review de novo.” United States v. Lucero , 713 F.3d 1024, 1026 (10th Cir. 2013) (brackets and citations omitted).

We review arguments not raised in district court for plain error. United States v. Rosales–Miranda , 755 F.3d 1253, 1257 (10th Cir. 2014). Under the plain error standard, Mr. Piper must demonstrate: (1) an error, (2) that is plain, meaning clear or obvious under current law, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1258.

B. Legal Background

“ ‘[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment’ and may not be modified by a district court except in limited circumstances.” Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting § 3582(b) ). Under § 3582(c)(2), an exception exists “ ‘in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o) ’ and made retroactive pursuant to § 994(u).” Id. at 824, 130 S.Ct. 2683 (quoting § 3582(c)(2) ). These ameliorative amendments to the Guidelines do not create a right to a sentence reduction. United States v. Osborn , 679 F.3d 1193, 1196 (10th Cir. 2012). Rather, even if a defendant is eligible, such “a reduction is not mandatory but is instead committed to the sound discretion of the trial court.” United States v. Telman , 28 F.3d 94, 96 (10th Cir. 1994).

Section 3582(c)(2) authorizes a district court to reduce an otherwise final sentence under a Guidelines amendment if the reduction is consistent with U.S.S.G. § 1B1.10, the Sentencing Commission's relevant policy statement, and after considering the factors in 18 U.S.C. § 3553(a). Dillon , 560 U.S. at 821, 130 S.Ct. 2683 ; 18 U.S.C. § 3582(c)(2) (stating that the district court may reduce the term of imprisonment “after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... such a reduction is consistent with applicable policy statements issued by the Sentencing Commission”).

Thus, when the § 3582(c)(2) exception applies, courts follow “a two-step approach.” Dillon , 560 U.S. at 827, 130 S.Ct. 2683. At step one, a court “follow[s] the Commission's...