United States of America v. Bruce Charles Tollefson
No. 16-1903
United States Court of Appeals For the Eighth Circuit
April 6, 2017
Submitted: March 6, 2017
Before BENTON, BEAM, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Bruce Tollefson pled guilty in 2005 to one count of conspiracy to possess with intent to distribute controlled substances in violation of
I.
Beginning in 2000, Tollefson conspired with others to distribute cocaine, methamphetamine, and marijuana. The members of the conspiracy would use violence and threats of violence to promote their drug activities. For example, during the course of the conspiracy Tollefson asked Charles Dewald to assault a coconspirator in order to prevent him from sharing information with the police. Dewald thereafter cut the coconspirator‘s throat with a knife. Although the coconspirator survived, the wound required approximately twenty sutures to close.
In 2005 Tollefson pled guilty to one count of conspiracy to possess with intent to distribute controlled substances, in violation of
In 2014 the Chief Judge of the District of North Dakota issued a standing order appointing the Office of the Federal Public Defender for the Districts of South Dakota and North Dakota to represent all defendants in North Dakota “who may be eligible to seek a reduced sentence based upon retroactive application of Amendment 782” to the sentencing guidelines. Amendment 782 reduced base offense levels by two for crimes involving cocaine, methamphetamine, marijuana, and other controlled
On May 15, 2015 Tollefson filed a pro se motion for a sentence reduction under
On March 1, 2016 the district court denied Tollefson‘s motion for a sentence reduction. The court first noted that “Tollefson is eligible for a sentence reduction” under amendment 782, but it denied the reduction after considering “the policy statements issued by the Sentencing Commission and the factors set forth in
II.
Tollefson argues that the district court violated his Sixth Amendment right to proceed pro se when it “forced [counsel] upon him such that Tollefson had no opportunity to present his case in his own way.” We review de novo this constitutional challenge. See United States v. Fernandez, 710 F.3d 847, 849 (8th Cir. 2013) (per curiam). Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.”
The Supreme Court has since held that its holding in Faretta “was confined to the right to defend oneself at trial” and that the “Sixth Amendment does not include any right to appeal.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 154, 160 (2000). The Court based this holding on the fact that the text of the Sixth Amendment limits its protection to the “preparation for trial and at the trial itself” and that the right of appeal “is purely a creature of statute.” Id. at 160 (internal quotation marks omitted). This reasoning applies equally to postconviction sentence reduction proceedings. The Supreme Court has also held that a pro se defendant‘s Sixth Amendment rights are not violated by the “unsolicited participation” of standby counsel “outside the presence of the jury.” McKaskle v. Wiggins, 465 U.S. 168, 179 (1984). The district court therefore did not violate Tollefson‘s Sixth Amendment rights.
Tollefson also argues that the district court violated his due process right to be heard because it appointed the federal public defender to represent him. We review Tollefson‘s due process arguments de novo. See Fernandez, 710 F.3d at 849. To comply with its due process obligations, a district court must provide a defendant “adequate notice and reasonable opportunity to be heard.” Stump v. Bennett, 398 F.2d 111, 114 (8th Cir. 1968) (en banc). The Supreme Court in Martinez held that defendants do not have a due process right to self representation on direct appeal of their convictions. 528 U.S. at 160. Similar to the right to proceed pro se, we find no reason why we should not extend the holding of Martinez to postconviction sentence reduction proceedings.
Tollefson argues that the district court also violated his due process right to be heard because the court waited to rule on his pro se motion for a sentence reduction until his appointed counsel filed a supplemental motion. A district court is not
Tollefson additionally argues that his attorney provided ineffective assistance. Because Tollefson had no right to counsel during his postconviction sentence reduction proceedings, he cannot assert a “valid claim for ineffective assistance.” See United States v. Edelmann, 458 F.3d 791, 803 (8th Cir. 2006).
III.
Tollefson next argues that the district court improperly denied his motion for a sentence reduction. We review de novo a district court‘s determination of whether a defendant is “eligible for a sentence reduction under
If the Sentencing Commission reduces a defendant‘s sentencing range, a district court may reduce the defendant‘s term of imprisonment “after considering the factors set forth in [
Tollefson first argues that the district court erred by determining that he was categorically ineligible for a sentence reduction. The record belies this argument. The district court‘s order stated “Tollefson is eligible for a sentence reduction under Amendment 782.” It also correctly applied step one of the
Tollefson also argues that the district court committed procedural error by failing to consider his postsentencing rehabilitation. “Although a district court may consider evidence of a defendant‘s rehabilitation since his prior sentencing, it is not required to adjust a sentence.” United States v. Hernandez-Marfil, 825 F.3d 410, 412 (8th Cir. 2016) (per curiam) (emphasis in original) (internal quotation marks omitted). The district court did not abuse its discretion here because it acknowledged Tollefson‘s postsentencing rehabilitation efforts. See id. at 412–13.
Finally, Tollefson argues that the district court‘s denial of his motion for a sentence reduction resulted in the imposition of an increased sentence and that the district court did not adequately explain this new sentence. Although Tollefson was eligible for a sentence reduction, ”
IV.
For these reasons we affirm the district court‘s order.