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DON’T SING

An old Russian proverb warns that “when you’re in it up to your neck, don’t sing.” Frank Piper could tell you something about that.

Frank’s doing 135 months for a cocaine conspiracy. He filed a motion for sentence reduction in response to the 2-level reduction adopted by the Sentencing Commission. The public defender filed a boiler-plate 18 U.S.C. 3582(c)(2) motion that was heavy on policy arguments but bereft of any meaningful discussion about why Frank should get a sentence cut.

The government had a few good reasons why Frank’s motion should be denied, not the least of which was that – after he pled guilty but before he was sentenced – Frank had created a rap video posted to YouTube in order to intimidate four cooperating witnesses whose statements had appeared in his Presentence Report. The video rapped “an anti-cooperation message – referencing ‘conspiracy’ as ‘the hardest charge to beat’ and someone who ‘would try to tell on me’,” as well as darkly warning people to “stop snitchin’.”

Images in the video included Frank using his index finger to simulate pulling a trigger and a bound-and-gagged hostage in a dark room, who is later shown in a posture suggesting he’d been killed. A screen caption instructing to send letters and pictures to the defendant’s prison address.

The government argued the video demonstrated Frank was a public safety hazard, and thus, that “a reduced sentence… 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).”

Strangely, Frank did not contest the provenance of the video, but instead just claimed he had had nothing to do with putting the video on YouTube. Unsurprisingly, the district court was not impressed with the argument, denying Frank’s sentence reduction motion based on “the scope of defendant’s conduct in connection with the [underlying] offenses, the significant danger to the community by defendant’s participation in” that offense, and his “rap video.”

This week, the 10th Circuit agreed, sweeping aside Frank’s claim that the district court was not allowed to consider newly alleged presentencing conduct not addressed at the original sentencing and that the court erroneously concluded Frank intended the video to be viewed by and construed as a threat to the cooperating witnesses.

In determining whether a 3582(c)(2) reduction should be granted, a judge first determines the defendant qualifies. If he or she does qualify (and more than two out of five don’t), the judge must then consider any applicable § 3553(a) sentencing factors. Additionally, the judge may (but not must) consider the defendant’s post-sentencing conduct. After those considerations, the judge may pretty much do whatever he or she wants to do, grant the whole reduction, part of the reduction, or – as in Frank’s case – none of it.

Under 3582(c)(2) and its implementing Guideline, § 1B1.10, the district court cannot monkey with any of the Guidelines determinations in the original sentencing except for the change authorized by the Sentencing Commission.

Frank figured he could drive his truck through the hole this created. His unfortunate video was not post-sentencing conduct, because he had made it before sentencing. But because the government didn’t find out about it until after sentencing, it was not part of his original sentencing, so – as Frank argued it – the judge couldn’t use it against him now. Frank argued § 1B1.10 “requires the court to place the defendant in the posture he was at his original sentencing, with the only difference being the substituted guideline” and that a court must therefore disregard new allegations of presentencing conduct.

Nice try, the Circuit said. It said its precedent holds only that “district courts in § 3582(c)(2) proceedings cannot make findings inconsistent with that of the original sentencing court… not that a district court must disregard new allegations of presentencing conduct.” In Frank’s case, the new findings about the old video “are not and cannot be inconsistent with the findings from the original sentencing proceedings because the video’s existence and its contents were not even known at the time of Mr. Piper’s original sentencing.” After all, the Court of Appeals said, 1BI.10 directs court to “consider the factors” in 18 U.S.C. 3553(a), and “because § 3553(a) includes consideration of presentencing conduct, including the ‘nature and circumstances of the [underlying] offense and the history and characteristics of the defendant,’ Mr. Piper’s argument that the court may consider only post-sentencing conduct is inconsistent with § 1B 1.10.”

Finally, the Court said, 1B1.10’s requirement that a court substitute the amended guideline and “leave all other guideline application decisions unaffected” does not mean the court must disregard newly alleged presentencing conduct at step two when the court considers the § 3553(a) factors. “Because nothing in the case law or in § 1BI.10 clearly requires a district court to disregard new allegations of presentencing conduct,” the Court held, Frank was out of luck.

As for the claim that the district court was wrong in its conclusions that Frank created the video “so that it would be disclosed, viewed and construed as a threat to cooperators,” the 10th let the video speak for itself: “The video shows Mr. Piper and another individual extend their hands toward the camera and make a trigger-pulling motion with their index fingers, while the lyrics ‘try to tell on me’ play.”

C’mon, man. Next time, be a little more subtle. Or better yet, you want to sing, do it in the shower.

United States v. Piper, Case No. 15-3288 (10th Cir., Oct. 25, 2016)