United States v. Tolliver

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-31258
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31258 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SYLVESTER TOLLIVER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 92-CR-20008-1 -------------------- August 22, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

Sylvester Tolliver, federal prisoner # 24806-013, appeals

the district court’s order denying his motion for a reduction of

his sentence pursuant to 18 U.S.C. § 3582(c)(2). Tolliver argues

that the amount of drugs on which his sentence was based, 50.12

kilograms of cocaine, included “impurities or mixtures” that

should be excluded under Amendment 484 of the Sentencing

Guidelines, which became effective after Tolliver was sentenced.

He asserts that the total net weight of the cocaine was less than

50 kilograms and that he should be resentenced under a base

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31258 -2-

offense level of 34. Tolliver additionally adopts the arguments

advanced by his codefendant, Troy A. Lawrence, who filed a

similar motion in the district court and whose appeal is decided

along with Tolliver’s. Lawrence has asserted that the 50.12

kilograms of cocaine used at sentencing included the weight of

the packaging materials in contravention of Amendment 484.

“Section 3582(c)(2) permits a district court to reduce a

term of imprisonment when it is based upon a sentencing range

that has subsequently been lowered by an amendment to the

Guidelines, if such a reduction is consistent with the policy

statements issued by the Sentencing Commission.” United States

v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The

current Sentencing Guidelines provide that “[u]nless otherwise

specified, the weight of a controlled substance set forth in the

[drug quantity] table refers to the entire weight of any mixture

or substance containing a detectable amount of the controlled

substance.” U.S.S.G. § 2D1.1(c), footnote A (May 2001).

Amendment 484 changed an application note to U.S.S.G. § 2D1.1 by

clarifying that a mixture or substance “does not include

materials that must be separated from the controlled substance

before the controlled substance can be used.” U.S.S.G. § 2D1.1,

comment. (n.1) (Nov. 1993); see U.S.S.G., App. C, amend. 484.

The Sentencing Commission gave this amendment retroactive effect.

U.S.S.G. § 1B1.10(c), p.s. (Nov. 1993); see United States v.

Levay, 76 F.3d 671, 673 (5th Cir. 1996) (recognizing retroactive

effect of Amendment 484). No. 00-31258 -3-

We review the district court’s decision whether to reduce a

sentence under 18 U.S.C. § 3582(c) for an abuse of discretion.

United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995).

The testimony of the chemist and the transcript from

Tolliver’s sentencing hearing reveal that whether the weight of

the packaging materials was included in determining the amount of

drugs involved was addressed at trial and was discussed at

sentencing in response to Tolliver’s inquiry. Tolliver’s 18

U.S.C. § 3582(c)(2) motion thus is an attempt to relitigate an

issue that was rejected at sentencing and that he could have

raised on direct appeal. Such an issue is not cognizable under

18 U.S.C. § 3582(c)(2). See United States v. Shaw, 30 F.3d 26,

29 (5th Cir. 1994) (holding that defendant’s attempt to

relitigate an issue that could have been raised at sentencing was

not cognizable under § 3582(c)(2)).

Tolliver’s arguments in support of a sentence reduction by

way of 18 U.S.C. § 3582(c)(2) are further complicated, as they

are challenges to the jury’s determination, beyond a reasonable

doubt, that the amount of drugs involved was approximately 50

kilograms of cocaine. The indictment in this matter alleged that

“approximately 50 kilograms of cocaine” were involved in the

offenses committed by Tolliver, and the jury found Tolliver

guilty as charged. Section 3582 governs the sentencing phase of

a criminal proceeding. See United States v. Alvarez, 210 F.3d

309, 310 (5th Cir. 2000) (stating that 18 U.S.C. § 3582 is a

criminal provision that governs the imposition and subsequent

modification of sentences of imprisonment). “Sentencing factors” No. 00-31258 -4-

are facts “not found by a jury,” but found by the sentencing

judge “by a preponderance of the evidence.” See Apprendi v. New

Jersey, 530 U.S. 466, 485-86 (2000) (explaining “sentencing

factors”) (citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)).

Because Tolliver’s arguments challenge a fact found by the jury,

and not merely a sentencing factor found by the sentencing judge

by a preponderance of the evidence, his arguments are not

available in an 18 U.S.C. § 3582(c)(2) proceeding.

Even if Tolliver were entitled to challenge the jury’s

verdict regarding the amount of drugs, he still would not be

entitled to any relief.** There was no evidence that the

“impurities” identified by the chemist at trial had to be

separated from the cocaine before use as contemplated by

Amendment 484. To the extent that Tolliver is arguing that the

weight of the drugs should be reduced to reflect the purity

levels of the cocaine, his argument is unavailing. See United

States v. Coleman, 166 F.3d 428, 432 (2nd Cir.) (issued after

Amendment 484 and stating that purity of the controlled substance

is not a factor in sentencing) (relying on Chapman v. United

States, 500 U.S. 453, 459-68 (1991), and citing United States v.

Cartwright, 6 F.3d 294, 303 (5th Cir. 1993)), cert. denied, 526

** The standard of review in assessing a sufficiency-of-the- evidence challenge is whether a “reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he evidence . . . must be considered in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices.” United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994). No. 00-31258 -5-

U.S. 1138 (1999). Tolliver’s argument regarding the weight of

the packaging is also unsupported by the evidence at trial.

Based on the foregoing, the district court did not abuse its

discretion in denying Tolliver’s 18 U.S.C. § 3582(c)(2) motion,

and its judgment is

AFFIRMED.