IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 95-50497 Summary Calendar ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIM ALLEN SAUNDERS,
Defendant-Appellant.
_______________________________________________________________
Appeal from the United States District Court for the Western District of Texas (A-91-CR-79) _______________________________________________________________
May 21, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Kim Allen Saunders appeals the district court's denial of his
motion for a reduction of sentence pursuant to 18 U.S.C. §
3582(c)(2) and U.S.S.G. § 1B1.10. We affirm.
Pursuant to a plea agreement, Saunders pleaded guilty to
conspiracy to possess methamphetamine with the intent to distribute
in violation of 21 U.S.C. § 846. He was sentenced to 110 months in
prison, five years' supervised release, and a $50 special
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. assessment. This sentence constituted a significant downward
departure of four levels from Saunders's original sentencing range
under the United States Sentencing Guidelines ("U.S.S.G." or the
"Guidelines"). The government requested the initial sentence
reduction under U.S.S.G. § 5K1.1(a) because of Saunders's post-
arrest cooperation. Saunders later petitioned the court for a
reduction of sentence pursuant to Amendment 484 to the Guidelines.
This amendment modified the procedure for calculating the quantity
of methamphetamine used in establishing base offense levels. See
U.S.S.G. § 2D1.1. In an order dated June 9, 1995 (the "Order"),
the district judge denied Saunders's motion without a hearing.
-2- Relying on 18 U.S.C. § 3582(c)(2)1 and U.S.S.G. § 1B1.10,2
Saunders argues on appeal that the district court abused its
discretion because the court (1) failed to consider the sentence
that it would have imposed had Amendment 484 to the Guidelines been
in effect at the time of Saunders's sentencing; and (2) did not
hold a hearing to determine the exact amount of phenylacetone
1 Section 3582(c)(2) provides in pertinent part:
(c) Modification of an imposed term of imprisonment. ...
(2) 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 a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). 2 U.S.S.G. § 1B1.10 provides in pertinent part:
§ 1B1.10. Retroactivity of Amended Guideline Range (Policy Statement)
(a) Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual ... a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). ... (b) In determining whether, and to what extent, a reduction in sentence is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the sentence that it would have imposed had the amendment(s) to the guidelines ... been in effect at the time the defendant was sentenced.
U.S.S.G. § 1B1.10.
-3- ("P2P") present in the controlled substance that was seized from
Saunders, which the court should have done to determine the proper
sentence under Amendment 484.
The decision to reduce a sentence under 18 U.S.C. § 3582(c)(2)
is discretionary, and we therefore review the district court's
decision only for an abuse of that discretion. United States v.
Shaw, 30 F.3d 26, 28 (5th Cir. 1994). Our review of this record
reveals no such abuse.
Our court has previously explained that section 3582(c)(2)
permits a district court to reduce a defendant's sentence where the
term of imprisonment was originally based on a Guideline range that
was subsequently lowered, and where the reduction would be
consistent with the applicable policy statements in the Guidelines.
United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). The
statute also directs the district court to consider the factors
enumerated in 18 U.S.C. § 3553(a), which include: the nature and
the circumstances of the offense and the history and
characteristics of the defendant; the need for the sentence imposed
to reflect the seriousness of the offense and to protect the public
from further crimes of the defendant; the kinds of sentences
available; any pertinent Guidelines policy statement; and the need
to avoid unwarranted sentencing disparities among defendants with
similar records found guilty of similar conduct. 18 U.S.C. §
3553(a); United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.
1995). Our court has further explained that Amendment 484 of the
-4- Guidelines effectively reduced certain sentencing ranges by
excluding from a controlled substance's weight those substances,
such as waste water, that must be separated out before the drug can
be used. United States v. Bergman, No. 94-20878, slip op. at 2
(5th Cir. Sept. 20, 1995); see also Amendment 484, U.S.S.G. App. C
(1995); U.S.S.G. § 2D1.1, comment (n.1) (1995).
Neither the district court in its Order nor the government on
appeal dispute Saunders's eligibility for a reduction of sentence
under Amendment 484. Indeed, the district court's Order expressly
acknowledges Saunders's argument for a sentence reduction under
Amendment 484. The district court, however, declined to exercise
its discretion to reduce Saunders's sentence in the light of its
application of the section 3553(a) factors to the facts of
Saunders's case. After performing a factual inquiry that included
a review of the presentence investigation report and the complete
record of this case, the district court specifically noted that
Saunders was an organizer of a major drug conspiracy, that he had
prior criminal convictions for possession of methamphetamine and
that previous judicial intervention had had little effect upon
Saunders's criminal activities. The district court concluded that
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 95-50497 Summary Calendar ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIM ALLEN SAUNDERS,
Defendant-Appellant.
_______________________________________________________________
Appeal from the United States District Court for the Western District of Texas (A-91-CR-79) _______________________________________________________________
May 21, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Kim Allen Saunders appeals the district court's denial of his
motion for a reduction of sentence pursuant to 18 U.S.C. §
3582(c)(2) and U.S.S.G. § 1B1.10. We affirm.
Pursuant to a plea agreement, Saunders pleaded guilty to
conspiracy to possess methamphetamine with the intent to distribute
in violation of 21 U.S.C. § 846. He was sentenced to 110 months in
prison, five years' supervised release, and a $50 special
* 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. assessment. This sentence constituted a significant downward
departure of four levels from Saunders's original sentencing range
under the United States Sentencing Guidelines ("U.S.S.G." or the
"Guidelines"). The government requested the initial sentence
reduction under U.S.S.G. § 5K1.1(a) because of Saunders's post-
arrest cooperation. Saunders later petitioned the court for a
reduction of sentence pursuant to Amendment 484 to the Guidelines.
This amendment modified the procedure for calculating the quantity
of methamphetamine used in establishing base offense levels. See
U.S.S.G. § 2D1.1. In an order dated June 9, 1995 (the "Order"),
the district judge denied Saunders's motion without a hearing.
-2- Relying on 18 U.S.C. § 3582(c)(2)1 and U.S.S.G. § 1B1.10,2
Saunders argues on appeal that the district court abused its
discretion because the court (1) failed to consider the sentence
that it would have imposed had Amendment 484 to the Guidelines been
in effect at the time of Saunders's sentencing; and (2) did not
hold a hearing to determine the exact amount of phenylacetone
1 Section 3582(c)(2) provides in pertinent part:
(c) Modification of an imposed term of imprisonment. ...
(2) 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 a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). 2 U.S.S.G. § 1B1.10 provides in pertinent part:
§ 1B1.10. Retroactivity of Amended Guideline Range (Policy Statement)
(a) Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual ... a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). ... (b) In determining whether, and to what extent, a reduction in sentence is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the sentence that it would have imposed had the amendment(s) to the guidelines ... been in effect at the time the defendant was sentenced.
U.S.S.G. § 1B1.10.
-3- ("P2P") present in the controlled substance that was seized from
Saunders, which the court should have done to determine the proper
sentence under Amendment 484.
The decision to reduce a sentence under 18 U.S.C. § 3582(c)(2)
is discretionary, and we therefore review the district court's
decision only for an abuse of that discretion. United States v.
Shaw, 30 F.3d 26, 28 (5th Cir. 1994). Our review of this record
reveals no such abuse.
Our court has previously explained that section 3582(c)(2)
permits a district court to reduce a defendant's sentence where the
term of imprisonment was originally based on a Guideline range that
was subsequently lowered, and where the reduction would be
consistent with the applicable policy statements in the Guidelines.
United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). The
statute also directs the district court to consider the factors
enumerated in 18 U.S.C. § 3553(a), which include: the nature and
the circumstances of the offense and the history and
characteristics of the defendant; the need for the sentence imposed
to reflect the seriousness of the offense and to protect the public
from further crimes of the defendant; the kinds of sentences
available; any pertinent Guidelines policy statement; and the need
to avoid unwarranted sentencing disparities among defendants with
similar records found guilty of similar conduct. 18 U.S.C. §
3553(a); United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.
1995). Our court has further explained that Amendment 484 of the
-4- Guidelines effectively reduced certain sentencing ranges by
excluding from a controlled substance's weight those substances,
such as waste water, that must be separated out before the drug can
be used. United States v. Bergman, No. 94-20878, slip op. at 2
(5th Cir. Sept. 20, 1995); see also Amendment 484, U.S.S.G. App. C
(1995); U.S.S.G. § 2D1.1, comment (n.1) (1995).
Neither the district court in its Order nor the government on
appeal dispute Saunders's eligibility for a reduction of sentence
under Amendment 484. Indeed, the district court's Order expressly
acknowledges Saunders's argument for a sentence reduction under
Amendment 484. The district court, however, declined to exercise
its discretion to reduce Saunders's sentence in the light of its
application of the section 3553(a) factors to the facts of
Saunders's case. After performing a factual inquiry that included
a review of the presentence investigation report and the complete
record of this case, the district court specifically noted that
Saunders was an organizer of a major drug conspiracy, that he had
prior criminal convictions for possession of methamphetamine and
that previous judicial intervention had had little effect upon
Saunders's criminal activities. The district court concluded that
a reduction of Saunders's sentence would minimize the seriousness
of his offense and that the original sentence was necessary to
promote respect for the law, to provide just punishment for the
offense, to afford adequate deterrence to criminal conduct and to
-5- protect the public from further crimes that might be committed by
Saunders.
We agree with the district court that on this record the
section 3553(a) factors compel a conclusion that no reduction is
warranted in Saunders's case. We are further persuaded, in the
light of these compelling factors, that a hearing to determine the
actual amount of P2P contained in the seized substance and a
recalculation of Saunders's sentence under the new Guidelines would
be a meaningless exercise and would serve no purpose consistent
with the overall goals and policies of the Guidelines. Even if
such a hearing were to result in a determination that Saunders's
base level under Amendment 484 would be lower than the reduced
sentence that he originally received, the district court would
still be required under section 3582(c)(2) to consider the
applicable section 3553(a) factors. Thus, based on the district
court's assumption that Saunders was eligible for a reduction in
his sentence under Amendment 484 and based on the section 3553(a)
factors that it has already articulated in its Order, the district
court would justifiably decline to reduce Saunders's sentence
notwithstanding the results of a hearing or a sentence
recalculation.3
3 Our holding today does not contravene our holding in a prior unpublished opinion, United States v. Bergman, No. 94-20878, slip op. (5th Cir. Sept. 20, 1995). In Bergman, we remanded to the district court for a determination of the actual amount of P2P present in the controlled substance that was seized from the defendant because the actual amount was in doubt and that amount
-6- The district court's judgment is therefore
A F F I R M E D.
had been the primary factor in determining the defendant's sentence range. On the facts of the Bergman case, we held that it was an abuse of discretion to deny a section 3582(c)(2) motion without further factual inquiry. Id. at 3. Unlike Bergman, the district court in this case acknowledged Saunders's argument that the actual amount of P2P was in doubt and then proceeded to perform the necessary factual inquiry. The district court reviewed Saunders's entire record and analyzed the relevant statutory factors listed in 18 U.S.C. § 3553(a). The district court's factual inquiry and resulting legal conclusions clearly support its decision to deny any further reduction of Saunders's sentence.
-7-