United States v. Piper
2016 U.S. App. LEXIS 19241
| 10th Cir. | 2016

Background

  • Frank S. Piper III pled guilty in 2014 to a cocaine conspiracy and was sentenced to 135 months; he had been on pretrial release for months before sentencing.
  • Amendment 782 (retroactively lowering drug offense base offense levels) applied to Piper’s conviction; he moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction.
  • The Government opposed reduction, asserting Piper created a rap video (titled "No Leaks Frank James – State to State") while on release that displayed PSR excerpts, photos of cooperating witnesses, simulated trigger-pulling, and a bound hostage figure — arguing this showed ongoing danger and warranted denial under the § 3553(a) factors.
  • The Government’s opposition described the video but did not submit the video or a sworn affidavit; Piper did not dispute the video content but argued he did not disseminate it and was in custody when it was uploaded.
  • The district court found, on the uncontested record, that Piper created the video while on release, allowed someone to preserve it, and intended it to be viewed and construed as a threat to cooperators; it denied the § 3582(c)(2) reduction, finding 135 months remained sufficient under § 3553(a).
  • Piper appealed, arguing the court (1) failed to address his policy arguments, (2) exceeded § 3582(c)(2) authority by considering newly alleged presentencing conduct, (3) erred by making findings without a hearing, and (4) clearly erred in finding intent to threaten.

Issues

Issue Piper's Argument Government's Argument Held
Whether the district court had to address Piper’s policy arguments Court must address all material, non-frivolous arguments (policy points about sentencing) Consideration of §3553(a) factors suffices; no duty to address every nonfrivolous argument Denial affirmed — court satisfied §3553(a) consideration; no obligation to discuss every policy argument.
Whether court exceeded §3582(c)(2) authority by considering new presentencing conduct (the video) §1B1.10 requires placing defendant in original posture and barring consideration of newly alleged presentencing conduct Court may consider relevant conduct in applying §3553(a); §1B1.10 does not clearly forbid considering newly discovered presentencing conduct Denial affirmed — no plain error; law and §1B1.10 do not clearly prohibit consideration of newly discovered presentencing conduct.
Whether a hearing was required before making findings about the video §6A1.3 and §3582(c)(2) require hearing when material facts disputed Piper never requested a hearing; defendant bears burden to request one Denial affirmed — plain-error review; no hearing required because Piper did not request one.
Whether the court’s finding that Piper intended the video to threaten cooperators was clearly erroneous The finding lacked sufficient support; alternative innocent explanations exist Video content and facts (performance, trigger gesture, hostage imagery, preserving copy) support inference of intent Denial affirmed — factual finding not clearly erroneous; reasonable view of record supports intent finding.

Key Cases Cited

  • Dillon v. United States, 560 U.S. 817 (district courts may reduce sentences under §3582(c)(2) consistent with Sentencing Commission policy statements and after considering §3553(a) factors)
  • United States v. Osborn, 679 F.3d 1193 (10th Cir.) (standard of review and that §3582(c)(2) reductions are discretionary)
  • United States v. Verdin-Garcia, 824 F.3d 1218 (10th Cir.) (§3582(c)(2) requires consideration of §3553(a) but not the §3553(c) statement requirement; no duty to address every nonfrivolous argument)
  • United States v. Battle, 706 F.3d 1313 (10th Cir.) (district court may rely on prior findings to make supplemental calculations in §3582(c)(2) proceedings; cannot make findings inconsistent with original sentencing)
  • United States v. Lucero, 713 F.3d 1024 (10th Cir.) (scope of district court authority in §3582(c)(2) proceedings reviewed de novo)
  • United States v. Powell, 767 F.3d 1026 (10th Cir.) (plain-error analysis requires error to be clear under existing precedent or statutory text)
  • United States v. Fortenbury, 917 F.2d 477 (10th Cir.) (no evidentiary hearing required when defendant disputes facts but never requests a hearing)
  • United States v. Craig, 808 F.3d 1249 (10th Cir.) (standard for reviewing factual findings for clear error)
  • Anderson v. City of Bessemer City, 470 U.S. 564 (view of record supporting one of two permissible inferences is not clearly erroneous)
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