United States v. Simkins ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20569
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DAVID HAROLD SIMKINS
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-89-420-1)
_________________________________________________________________
June 19, 1996
Before KING, DAVIS and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
David Harold Simkins appeals the district court’s denial of
his motion for reduction of sentence under 18 U.S.C. §
*
Pursuant to Local 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
3582(c)(2). Finding no abuse of discretion, we affirm the
decision of the district court.
I. BACKGROUND
Simkins was charged with attempting to manufacture more than
100 grams of methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and 846. Approximately five gallons of liquid reaction
mixture were found in Simkins's laboratory and tests revealed
that the strength of the p2p, the active-drug ingredient, was
20%. On February 4, 1991, Simkins entered a plea of guilty
pursuant to an agreement with the Government whereby the
Government agreed to recommend the minimum guideline sentence.
The Government recommended that the court calculate the quantity
of drugs charged to Simkins by using the five gallons of p2p and
converting it to a heroin equivalence of 3.16 kilograms.
Adopting this recommendation, the district court sentenced
Simkins to 210 months imprisonment. Simkins appealed, and this
court affirmed his sentence in United States v. Simkins, No. 91-
2445 (5th Cir. March 23, 1992) (unpublished).
On February 23, 1995, Simkins filed a motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2), and he requested
that the district court set the motion for a hearing. Simkins
based his request for sentence reduction upon a retroactive
amendment to §2D1.1 of the Sentencing Guidelines. The amendment
provides that waste material used in manufacturing drugs should
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not be used to calculate the amount of controlled substance
attributable to a defendant. USSG App. C., Amend. 484 (1993).
Simkins argued that, of the five gallons of liquid reaction
mixture seized from the illicit lab, 80% was excludable waste
water.
The district court ordered the Government to file a response
to Simkins's motion for sentence reduction. On April 27, 1995,
the Government responded that Simkins's sentence should not be
reduced because, among other things, "Simkins intended to produce
as much p2p as possible, up to two and one half gallons." The
Government attached a declaration from the DEA chemist who
originally analyzed the chemical substance: He indicated that,
with additional “cooking,” the strength of the substance might
have attained a level as high as 50%, yielding as much as 9.1
kilograms of pure methamphetamine HCL.
On July 11, 1995, without granting a hearing, the district
court denied Simkins's motion for sentence reduction. In part,
the court's decision was based on the fact that, because
Simkins’s methamphetamine laboratory was located in a hotel room,
he had endangered the lives of unsuspecting lodgers. The court
also based its decision on the calculations contained in the DEA
chemist's declaration about the possible strength of the
substance after further processing.
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II. DISCUSSION
The trial court must sentence a convicted defendant to a
term within the range provided by the Sentencing Guidelines,
unless it finds an aggravating circumstance not contemplated
under the Guidelines. United States v. Otero, 868 F.2d 1412,
1414 (5th Cir. 1989). Section 2D1.1 of the Sentencing Guidelines
addresses unlawful trafficking, manufacturing, importing, and
exporting of drugs. USSG §2D1.1. At the time of Simkins's
original sentencing in 1991, the drug quantity table in §2D1.1
provided that “[u]nless otherwise specified, the weight of a
controlled substance set forth in the table refers to the entire
weight of any mixture or substance containing a detectable amount
of the controlled substance." USSG §2D1.1 at 2.47 (1990).
When, subsequent to sentencing, the guideline range is
lowered by a retroactive amendment, 18 U.S.C. § 3582(c)
authorizes the court to reduce the sentence. United States v.
Levay, 76 F.3d 671, 672 (5th Cir. 1996). Section 3582(c)(2)
provides that:
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 . . . the 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 such reduction is consistent
with applicable policy statements issued by the
Sentencing Commission.
18 U.S.C. § 3582(c)(2). In 1993, with Amendment 484, the
Sentencing Guidelines Commission specified that certain
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materials, including waste water, must be excluded from
controlled substances in calculating the weight at sentencing.1
The Commission gave Amendment 484 retroactive effect. Levay, 76
F.3d at 673; see also USSG §1B1.10(d), p.s. (1993). Thus, it is
appropriate for a defendant to bring a motion for resentencing in
light of Amendment 484, pursuant to § 3582(c)(2).
The decision to reduce a sentence is within the discretion
of the district court. Levay, 76 F.3d at 673. The Sentencing
Guidelines instruct the district court that, in exercising this
discretion, it “should consider the sentence that it would have
imposed had the amendment(s) . . . been in effect at the time the
defendant was sentenced.” United States v. Allison, 63 F.3d 350,
351 (5th Cir.) (quoting USSG §1B1.10(b), p.s. (1995)), cert.
denied, 116 S. Ct. 405 (1995). We review a district court's
decision whether to reduce a sentence under § 3582(c)(2) for
abuse of discretion; we review a court's findings of fact under §
1
Specifically, Amendment 484 altered the commentary to
§2D1.1 to provide, in pertinent part:
Mixture or substance does not include materials that must
be separated from the controlled substance before the
controlled substance can be used. Examples of such
materials include . . . waste water from an illicit
laboratory used to manufacture a controlled substance.
If such material cannot readily be separated from the
mixture or substance that appropriately is counted in the
Drug Quantity Table, the court may use any reasonable
method to approximate the weight of the mixture or
substance to be counted.
USSG App. C., Amend. 484 (1993).
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3582(c)(2) for clear error. Levay, 76 F.3d at 673.
Simkins raises two issues on appeal: 1. Whether the
district court gave adequate consideration to the sentence it
would have imposed had Amendment 484 been in effect at the time
Simkins was sentenced. 2. Whether Simkins was given an
opportunity to respond to the Government’s opposition to his
motion. We address these issues in turn.
First, Simkins contends that the district court abused its
discretion by denying his § 3582(c)(2) motion without considering
the sentence it would have imposed had Amendment 484 been in
effect when he was sentenced. Simkins concedes that the district
court determined that if he were sentenced today Simkins could
only be sentenced for 20% of the mixture found in his lab.
According to Simkins, however, the district court did not give
adequate consideration to the specific sentence Simkins would
receive today based on that amount. We disagree. After
examining the record, we conclude that the district court
adequately considered the sentence it would have imposed
originally had the guidelines as amended been in effect at the
time.
Simkins's second argument on appeal is that the district
court abused its discretion by relying on the DEA chemist’s
declaration without affording Simkins a meaningful opportunity to
respond. Although Simkins requested a hearing in his motion for
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sentence reduction under § 3582(c)(2), the district court ruled
on his motion without holding a hearing or notifying Simkins that
it was taking into account the declaration of the DEA chemist.
Based on Simkins’s reading of United States v. Townsend, 55 F.3d
168, 172 (5th Cir. 1995), Simkins contends that the district
court erred in not allowing him an opportunity to answer or
confront the DEA chemist.
Townsend was a § 3582(c)(2) proceeding with facts similar to
the case sub judice. As one of several individuals convicted of
conspiracy to manufacture more than 100 grams of methamphetamine,
Townsend was sentenced to 300 months imprisonment. Townsend
filed a motion for reduction in sentence and the district court
ordered the Government to respond. After filing its initial
response, the Government filed a supplemental response to which
was attached the transcript of testimony taken during the hearing
of one of Townsend’s co-conspirators. Although, Townsend “was
served with a copy of the transcript, he was never notified that
the court intended to rely on it in reaching a decision nor was
he told to respond to the testimony.” Townsend, 55 F.3d at 172.
No hearing was held. Based on the transcript submitted by the
Government, the district court denied Townsend’s motion for a
reduction in sentence. In vacating the order of the district
court, we held that the court must give the defendant notice and
an opportunity to respond if it intends to base its resentencing
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decision on evidence not presented at the original sentencing
hearing. Id.Townsend, however, is distinguishable from the case at bar.
Townsend was a pro se defendant who maintained that he did not
know that he was allowed to reply to the Government's response.
Id. Noting that the defendant "had no notification that he could
respond [to] the testimony, nor any indication that the court
intended to consider the testimony in its § 3582(c)(2)
determination," we concluded that the defendant did not have
adequate notice under the circumstances. In the instant case,
Simkins was represented by counsel when he presented his §
3582(c)(2) motion to the district court. Unlike a pro se
defendant, an attorney is expected to know when he is required to
respond.
Section 3553(a) requires a court, when deciding whether to
modify a sentence, to consider "any pertinent policy statement
issued by the Sentencing Commission . . . that is in effect on
the date the defendant is sentenced." 18 U.S.C. § 3553(a). It
is true, as noted in Townsend, that according to one of the
relevant policy statements issued by the Sentencing Commission,
"[w]hen any factor important to sentencing determination is
reasonably in dispute, the parties shall be given an adequate
opportunity to present information to the court regarding that
factor." Townsend, 55 F.3d at 172 (quoting USSG §6A1.3(a),
p.s.). To be entitled to an evidentiary hearing, a defendant
8
must demonstrate that: 1. a fact issue material to his sentence
is reasonably in dispute; and 2. the court cannot resolve it
without a full hearing. See United States v. Pologruto, 914 F.2d
67, 69 (5th Cir. 1990) (citing United States v. Mueller, 902 F.2d
336, 347 (5th Cir. 1990)). Whether to grant an evidentiary
hearing is within the discretion of the court. Mueller, 902 F.2d
at 347.
In the instant case, Simkins presented no evidence that
there was a dispute over any material fact. Moreover, the
district court did not deny Simkins's motion for resentencing
until approximately ten weeks after the Government filed its
response. Thus, Simkins had ample opportunity to rebut the
Government's facts. Nonetheless, in all that time, Simkins did
not object to the filing of the DEA chemist’s declaration. Nor
did Simkins explicitly apprise the court in any way of his
opposition to the declaration. In the context of a resentencing
inquiry, simply requesting a hearing will not suffice. In order
to counter the Government’s response, it was incumbent on Simkins
to raise a fact dispute.
Furthermore, the district court based its denial of
Simkins’s motion for sentence reduction, in part, on an
assessment of the facts peculiar to this case. In addition to
considering policy statements issued by the Sentencing
Commission, a court is required to consider a number of other
factors when deciding whether to reduce a defendant’s sentence.
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18 U.S.C. §§ 3553(a)& 3582(c)(2). “These factors include: the
nature and circumstances of the offense and the history and
characteristics of the defendant; the need for the sentence
imposed; and the kinds of sentences available. 18 U.S.C. §
3553(a).” United States v. Shaw, 30 F.3d 26, 29 n.1. (1994).
The district court determined that “in view of the nature and
circumstances of this case a sentence reduction should not be
made [because] Simkins operated a methamphetamine chemical
laboratory in [a] hotel room next to non-suspecting customers and
thereby endangered their lives.” Such a finding was not an abuse
of discretion.
A § 3582(c)(2) motion “is simply a vehicle through which
appropriately sentenced prisoners can urge the court to exercise
leniency to give certain defendants the benefits of an amendment
to the Guidelines.” United States v. Whitebird, 55 F.3d 1007,
1011 (5th Cir. 1995). By its own terms, application of §
3582(c)(2) is discretionary. United States v. Shaw, 30 F.3d at
28.
Based on the language of the statute and a review of the
facts of this case, we conclude that the district court did not
abuse its discretion in denying Simkins’s request for a hearing.
Additionally, we conclude that Simkins was afforded both notice
of the Government's response and ample opportunity to respond
thereto.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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