United States v. Piper

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 25, 2016

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 15-3288

FRANK SHARRON PIPER, III,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:12-CR-20141-KHV-4)

Paige A. Nichols, Research & Writing Specialist (Melody Brannon, Federal Public
Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas,
appearing for Appellant.

James A. Brown, Assistant United States Attorney (Thomas E. Beall, Acting United
States Attorney, with him on the brief), Office of the United States Attorney for the
District of Kansas, Topeka, Kansas, appearing for Appellee.

Before KELLY, HARTZ, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Federal prisoner Frank Sharron Piper, III, appeals the district court’s denial of his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we affirm.
 I. BACKGROUND

A. Conviction and Sentence

On November 28, 2012, a grand jury indicted Mr. Piper for participating in a

cocaine conspiracy in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and for

various related offenses. On January 8, 2014, he pled guilty to the conspiracy charge.

On May 14, 2014, the district court sentenced Mr. Piper to 135 months in prison. Mr.

Piper had been on release from December 6, 2012 until he was sentenced.

B. Motion to Reduce Sentence

On November 1, 2014, Amendment 782 to the United States Sentencing

Guidelines (“U.S.S.G.”) came into effect, retroactively lowering the base offense levels

for certain drug offenses. The parties agree that Amendment 782 applies to Mr. Piper’s

crime of conviction.

1. Mr. Piper’s Motion for a Sentence Reduction

On September 16, 2015, Mr. Piper moved for a reduced sentence under

Amendment 782 and 18 U.S.C. § 3582(c)(2) (authorizing district courts to modify

sentences based on retroactive guideline amendments). His supporting Memorandum of

Law included only broad policy-based arguments. He argued, for example, that long

drug sentences overcrowd prisons, limit inmate access to anti-recidivism programs,

incapacitate prisoners long after they are likely to threaten public safety, and fail to deter

crime.

-2-
2. The Government’s Response

In response, the Government argued that, despite Mr. Piper’s eligibility for a

reduction under Amendment 782, he should not receive one because, after he pled guilty

but before he was sentenced, he created a rap video to intimidate four cooperating

witnesses whose statements had appeared in Mr. Piper’s Presentence Investigation Report

(“PSR”).

The prosecution said the video was titled “No Leaks Frank James – State to

State,”1 and that “No Leaks” referred to a rap record label and a group of people whose

“CEO” was Mr. Piper. ROA, Vol. I at 113-14. The Government described the video in

its response brief to the motion as including:

 Photographs of pages from the PSR and excerpts from the PSR displayed
with photographs of the cooperating witnesses.

 The defendant rapping an anti-cooperation message—referencing
“conspiracy” as “the hardest charge to beat” and someone who “would try
to tell on me,” then using his index finger to simulate pulling a trigger.

 A bound and gagged hostage figure in a dark room, who is later shown with
his head hanging forward, nearly motionless.

 The defendant referencing those who “told on me” and stating “stop
snitchin’.”

 A screen caption instructing to send letters and pictures to the defendant’s
prison address.

Id. at 114-15.

1
The Government asserted “Frank James” was Mr. Piper’s alias. ROA, Vol. I at
114.

-3-
 Although the prosecution said the video “was saved onto a compact disc by law

enforcement,” the Government did not provide the district court with a copy, relied solely

on its own description and conclusions, and provided no sworn affidavit or transcript of

the video’s contents. Id. at 114.2 After describing the video, the Government asserted

the co-CEO of No Leaks, Michael Duane Mills, edited the video, uploaded it to YouTube

on November 13, 2014, when Mr. Piper was in prison, and removed it from YouTube

five days later.

The Government argued these facts demonstrated “a continued need to protect the

public from further crimes of [Mr. Piper] and a continued need to afford adequate

deterrence.” Id. at 126. A reduced sentence, it said, 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).3

3. Mr. Piper’s Reply

Mr. Piper’s reply did not contest the Government’s description of the video’s

contents. It instead argued for a reduced sentence because the Government had failed to

show “Mr. Piper had anything to do with disseminating the video.” Id. at 129. It noted

2
Accordingly, neither the district court nor the appellate record contains the video
or a sworn statement regarding its contents.
3
The Government also argued that Mr. Piper’s involvement in the video’s creation
while on release violated the court’s terms of release, which required him to “avoid all
contact, directly or indirectly with any person who is or may be a victim or witness in the
investigation or prosecution . . . .” ROA, Vol. I at 125.

-4-
that Mr. Piper “had been in federal custody for months before the video was released.”

Id.

4. The District Court’s Denial of Mr. Piper’s Motion

The district court denied Mr. Piper’s motion for a reduced sentence based on the

following uncontested facts:

 “On November 18, 2014, government agents learned that a video
titled ‘No Leaks Frank James – State to State’ had been uploaded to
YouTube . . . . [I]t was removed later that day.”

 “The video includes still photographs of pages from defendant’s
presentence investigation report which summarize statements of
cooperators. The video displayed these excerpts next to still
photographs of the individuals who made the statements.”

 “The video also showed defendant and another individual simulating
a trigger-pulling motion with their index fingers when the rap lyrics
reached ‘. . . try to tell on me.’”

 Mr. Piper “created [the rap video] while on release in this case and
allowed someone else to preserve a copy.”

Id. at 136.

After reciting in a footnote that “[Mr. Piper did] not suggest any innocent motive

in creating the video,” the district court stated it had “reasonably conclude[d] that [Mr.

Piper] created the video so that it would be disclosed, viewed and construed as a threat to

cooperators.” Id. at 137-38 n.1.4

Having found these facts, the court denied Mr. Piper’s motion, reasoning:

4
Mr. Piper disputes this conclusion in this appeal.

-5-
 [T]he Court has considered the scope of defendant’s conduct in connection
with the instant offenses and the significant danger to the community by
defendant’s participation in the distribution of some 45 kilograms of
cocaine. After balancing the above factors and considering the post-
sentencing discovery of defendant’s rap video, the Court finds that a
sentence of 135 months in prison (the original sentence and near the middle
of the amended guideline range of 121 to 151 months) is sufficient but not
greater than necessary to meet the sentencing factors set forth in Section
3553(a).

Id. at 137-38.

II. DISCUSSION

Mr. Piper argues the district court (1) failed to address the policy arguments in his

motion, (2) exceeded its § 3582(c)(2) authority when it considered newly alleged

presentencing conduct not addressed at the original sentencing, (3) made fact findings

regarding the video without holding a hearing, and (4) erroneously concluded Mr. Piper

intended the video to be viewed by and construed as a threat to the cooperating witnesses.

A. Standards of Review

“We review for an abuse of discretion a district court’s decision to deny a

reduction of sentence under 18 U.S.C. § 3582(c)(2).” United States v. Osborn, 679 F.3d

1193, 1195 (10th Cir. 2012). “A district court abuses its discretion when it relies on an

incorrect conclusion of law or a clearly erroneous finding of fact.” United States v.

Battle, 706 F.3d 1313, 1317 (10th Cir. 2013). “The scope of a district court’s authority in

a sentencing modification proceeding under 18 U.S.C. § 3582(c)(2) is a question of law

that we review de novo.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir. 2013)

(brackets and citations omitted).

-6-
 We review arguments not raised in district court for plain error. United States v.

Rosales-Miranda, 755 F.3d 1253, 1257 (10th Cir. 2014). Under the plain error standard,

Mr. Piper must demonstrate: (1) an error, (2) that is plain, meaning clear or obvious

under current law, (3) that affects substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. at 1258.

B. Legal Background

“‘[A] judgment of conviction that includes [a sentence of imprisonment]

constitutes a final judgment’ and may not be modified by a district court except in limited

circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting § 3582(b)).

Under § 3582(c)(2), an exception exists “‘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 by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)’ and made

retroactive pursuant to § 994(u).” Id. at 824 (quoting § 3582(c)(2)). These ameliorative

amendments to the Guidelines do not create a right to a sentence reduction. United States

v. Osborn, 679 F.3d 1193, 1196 (10th Cir. 2012). Rather, even if a defendant is eligible,

such “a reduction is not mandatory but is instead committed to the sound discretion of the

trial court.” United States v. Telman, 28 F.3d 94, 96 (10th Cir. 1994).

Section 3582(c)(2) authorizes a district court to reduce an otherwise final sentence

under a Guidelines amendment if the reduction is consistent with U.S.S.G. § 1B1.10, the

Sentencing Commission’s relevant policy statement, and after considering the factors in

18 U.S.C. § 3553(a). Dillon, 560 U.S. at 821; 18 U.S.C. § 3582(c)(2) (stating that the

district court may reduce the term of imprisonment “after considering the factors set forth

-7-
in section 3553(a) to the extent that they are applicable, if it finds that . . . such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission”).

Thus, when the § 3582(c)(2) exception applies, courts follow “a two-step

approach.” Dillon, 560 U.S. at 827. At step one, a court “follow[s] the Commission’s

instructions in [U.S.S.G.] § 1B1.10 to determine the prisoner’s eligibility for a sentence

modification and the extent of the reduction authorized.” Id. At step two, a court

“consider[s] any applicable § 3553(a) factors and determine[s] whether, in its discretion,

the reduction authorized by reference to the policies relevant at step one is warranted in

whole or in part under the particular circumstances of the case.” Id.

The § 3553(a) factors include “the nature and circumstances of the offense and the

history and characteristics of the defendant” and “the need for the sentence imposed . . .

to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1),

(a)(2)(C). The court may also ‘“consider’ the defendant’s post-sentencing conduct.”

Osborn, 679 F.3d at 1196 (quoting U.S.S.G. § 1B1.10 cmt. n.1(B)(iii)).

The two-step process under § 3582(c)(2) “authorize[s] only a limited adjustment

to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon, 560

U.S. at 826; see also United States v. Verdin-Garcia, 824 F.3d 1218, 1221 (10th Cir.

2016) (“Section 3582(c)(2) invites a motion for a sentencing modification, not a new

sentencing proceeding.”).

-8-
 C. Analysis

We affirm the denial of Mr. Piper’s motion for a reduced sentence. Each of his

arguments lacks merit. The district court did not abuse its discretion or commit plain

error.

1. Failure to Address Mr. Piper’s Policy Arguments

Mr. Piper argues the district court abused its discretion by failing to address his

policy arguments. He contends the court must address all of a defendant’s material, non-

frivolous arguments.

Section 3582(c)(2) “requires the court to consider the factors in 18 U.S.C.

§ 3553(a).” Verdin-Garcia, 824 F.3d at 1221; see § 3582(c)(1)(A) (allowing a court to

reduce the term of imprisonment “after considering the factors set forth in section

3553(a)” (emphasis added)). Notably, § 3582(c)(2) does not incorporate § 3553(c),

which provides that a “court, at the time of sentencing, shall state in open court the

reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). “This

omission is significant because we have previously interpreted the meaning of both

subsections, holding that § 3553(a) requires consideration [of its factors], while § 3553(c)

requires an explanation of the sentence.” Verdin-Garcia, 824 F.3d at 1221 (emphasis

added). Consistent with § 3582(c)(2)’s reference to § 3553(a) but not § 3553(c), the

comments to the applicable policy statement—§ 1B1.10—instruct that “the court shall

consider § 3553(a) factors and shall consider the nature and seriousness of the danger to

the community.” Id. (quoting U.S.S.G. § 1B1.10 cmt. n.1(B)(i)-(ii) (2014)) (emphasis

altered). We have therefore found “no basis to impose upon the district court a

-9-
requirement to address every nonfrivolous, material argument raised by the defendant” in

a § 3582(c)(2) proceeding. Id. at 1222.

The district court denied Mr. Piper’s 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.” ROA, Vol.

I at 137. The court considered the § 3553(a) factors, which is all that was required. It

had no further duty to “address[] every nonfrivolous, material argument raised by a

defendant.” Verdin-Garcia, 824 F.3d at 1222. The court therefore acted within its

discretion in declining to address Mr. Piper’s policy arguments.

2. Consideration of Presentencing Conduct

Mr. Piper argues for the first time on appeal that the district court exceeded its

§ 3582(c)(2) authority when it considered newly alleged presentencing conduct that was

not considered during the original sentencing proceedings—that is, Mr. Piper’s creation

of the video. Because Mr. Piper failed to raise this argument in district court, we review

it for plain error. See Fed. R. Crim. P. 52 (“A plain error that affects substantial rights

may be considered even though it was not brought to the court’s attention.”).

On appeal, Mr. Piper argues § 1B1.10 prohibits consideration of newly alleged

presentencing conduct that was not considered at the original sentencing because the

court must “determine the amended guideline range that would have been applicable to

the defendant if the amendment(s) to the guidelines . . . had been in effect at the time the

defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). Section 1B1.10 further instructs

that, “[i]n making such determination, the court shall substitute only the amendments . . .

- 10 -
for the corresponding guideline provisions that were applied when the defendant was

sentenced and shall leave all other guideline application decisions unaffected.” Id.

(emphasis added).

Mr. Piper also points to language in § 1B1.10(a)(3) stating that, “[c]onsistent with

subsection (b), proceedings under 18 U.S.C. 3582(c)(2) and this policy statement do not

constitute a full resentencing of the defendant.” Aplt. Br. at 13. He argues this language

“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. Id. at 14. He further asserts that,

consistent with § 1B1.10, we have held “if the district court is to make any new findings

with respect to presentence conduct during a modification proceeding, those findings

must be based on and consistent with facts that were adopted at the original sentencing.”

Id. at 14-15. He relies on United States v. Battle, 706 F.3d 1313 (10th Cir. 2013).

Mr. Piper’s arguments fail under plain error review. Any error the district court

may have made in considering newly alleged presentencing conduct was not clear and

therefore fails the second requirement of the plain error standard.

Under plain error review, “[a]n error is clear when it is contrary to well-settled

law.” United States v. Smith, 815 F.3d 671, 675 (10th Cir. 2016). To conclude a

proposition of law is well-settled, “we normally require precedent directly [o]n point

from the Supreme Court or our circuit or a consensus in the other circuits.” Id. “The

absence of such precedent will not, however, prevent the conclusion an error is plain

- 11 -
when statutory language”—or in this case, the Guideline language—“is clear and

obvious.” United States v. Powell, 767 F.3d 1026, 1035 (10th Cir. 2014).

Any error was not clear or obvious under current law. Nothing in Battle nor any

other case law we have found clearly required the district court to disregard newly

alleged presentencing conduct. In Battle, at the original sentencing, the court had held

the defendant responsible for “at least 1.5 kilograms” of the cocaine at issue. Battle, 706

F.3d at 1314. Later, during the § 3582(c)(2) sentence reduction proceedings, the court

concluded the defendant was responsible for 3.4 kilograms based on findings and

evidence adopted at the original sentencing, and it calculated his amended guideline

range accordingly. Id.

Despite the defendant’s argument that the court was bound to a finding of exactly

1.5 kilograms in the § 3582(c)(2) proceeding, we held that “a district court may look to its

previous findings . . . to make supplemental calculations of drug quantity at resentencing

if such calculations are necessary to ‘determine the amended guideline range that would

have been applicable’ in light of a retroactive Guideline amendment.” 706 F.3d at 1319

(emphasis added) (quoting U.S.S.G. § 1B1.10(b)(1)). The cases cited by Battle clarify

only that “district courts in § 3582(c)(2) proceedings cannot make findings inconsistent

with that of the original sentencing court.” Id. (citing United States v. Woods, 581 F.3d

531, 538-39 (7th Cir. 2009)).

- 12 -
 Contrary to Mr. Piper’s argument, Battle did not say that a district court must

disregard new allegations of presentencing conduct.5 Battle did not specifically address

that question. Moreover, the court’s findings about the video at issue here comport with

Battle: they 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

Without precedent directly on point, we may still find well-settled law if the

Guideline language is itself “clear and obvious.” Powell, 767 F.3d at 1035. But nothing

in § 1B1.10 requires a court to disregard new allegations of presentencing conduct.

Indeed, § 1B1.10 arguably allows the court to consider conduct that occurred before

sentencing: the court “may consider post-sentencing conduct of the defendant that

occurred after imposition of the term of imprisonment,” and the court “shall consider the

factors set forth in 18 U.S.C. 3553(a).” U.S.S.G. § 1B1.10 cmt. n.1(B)(i), (iii) (2014)

(emphasis added). Because § 3553(a) includes consideration of presentencing conduct,

including the “nature and circumstances of the [underlying] offense and the history and

5
“[B]ecause it is unnecessary to the resolution of this appeal, we need not decide
whether the district court is permitted to engage in new fact-finding in determining the
amended guideline range in a § 3582(c)(2) proceeding.” Battle, 706 F.3d at 1319. See
also United States v. Vann, 593 F. App’x 782, 786 (10th Cir. Nov. 25, 2014)
(unpublished) (summarizing Battle and stating “[w]e declined to decide whether the
district court could engage in new fact-finding in determining the amended guideline
range in a § 3582(c)(2) proceeding” (quotations omitted)). The unpublished cases cited
in this opinion are included for their persuasive value. See Fed. R. App. P. 32.1, 10th Cir.
R. 32.1.

- 13 -
characteristics of the defendant,” Mr. Piper’s argument that the court may consider only

post-sentencing conduct is inconsistent with § 1B1.10.6

Additionally, § 1B1.10’s requirement that a court substitute the amended guideline

and “leave all other guideline application decisions unaffected” at step one of the Dillon

analysis does not indicate the court must disregard newly alleged presentencing conduct

at step two when the court considers the § 3553(a) factors. Similarly, § 1B1.10’s

statement that a § 3582(c)(2) proceeding “do[es] not constitute a full resentencing of the

defendant” does not speak to whether a district court must disregard new allegations of

presentencing conduct.7

Because nothing in the case law or in § 1B1.10 clearly requires a district court to

disregard new allegations of presentencing conduct, Mr. Piper fails to demonstrate that

the district court committed plain error.

3. Failure to Hold a Hearing

Mr. Piper argues the district court erred in finding he created the video “so that it

would be disclosed, viewed and construed as a threat to cooperators” without first

6
See also United States v. Meridyth, 573 F. App’x 791, 794 (10th Cir. Aug. 11,
2014) (unpublished) (referencing defendant’s extensive pre-incarceration, presentencing
criminal history throughout his adult life as well as his characteristics and behavior
during incarceration to determine that a full sentence reduction would be inappropriate).
7
Furthermore, although application note 1(B)(iii) of § 1B1.10 states that a court
“may consider post-sentencing conduct . . . in determining: (I) Whether a reduction in
the defendant’s term of imprisonment is warranted; and (II) the extent of such reduction”
(emphasis added), nothing in § 1B1.10 or its application notes clearly addresses whether
a court must disregard new allegations of presentencing conduct. Thus, Mr. Piper has
failed to demonstrate plain error from the text of § 1B1.10.

- 14 -
holding a hearing. ROA, Vol. I at 137 n.1. Mr. Piper did not request a hearing in district

court. We therefore review for plain error. See Fed. R. Crim. P. 52; Rosales-Miranda,

755 F.3d at 1257.8

Mr. Piper argues the failure to hold a hearing was plain error based on

§ 3582(c)(2)—which directs courts to make reduction decisions “consistent with

applicable policy statements issued by the Sentencing Commission”—and U.S.S.G.

§ 6A1.3(a), a policy statement providing that, “[w]hen any factor important to the

sentencing determination is reasonably in dispute, the parties shall be given an adequate

opportunity to present information to the court regarding that factor.” Aplt. Reply Br. at

6-7.

Mr. Piper’s argument fails. In imposing an original sentence, a district court need

not hold a § 6A1.3(a) hearing when a defendant disputes facts but fails to request a

8
Mr. Piper argues we should not review for plain error because he disputed the
Government’s facts in district court. In short, he argues that raising a fact dispute is
tantamount to requesting a hearing. As we made clear in United States v. Fortenbury,
917 F.2d 477 (10th Cir. 1990), it is not. 917 F.2d at 480 (rejecting a defendant’s
complaint “that he was denied an evidentiary hearing” at his initial sentencing where he
“disputed matters in the presentencing report” but “never requested an evidentiary
hearing”).
Mr. Piper also argues the “district court’s reliance on its finding that Mr. Piper
intentionally threatened the cooperators, rather than on the government’s argument that
Mr. Piper violated his conditions of pretrial release, excuses Mr. Piper from not
predicting that he needed to request a hearing, and saves him from plain error review.”
Aplt. Br. at 19 n.3. We disagree. In its response brief in district court, the Government
put Mr. Piper’s creation of the video at issue by arguing it rendered a reduced sentence
unwarranted. The brief specifically asserted that Mr. Piper’s involvement in the
creation of the rap video was “designed to intimidate witnesses.” ROA, Vol. I at 111.
With this knowledge, Mr. Piper could have requested a hearing at any point thereafter,
but he did not. We therefore review for plain error.

- 15 -
hearing. See United States v. Fortenbury, 917 F.2d 477, 480 (10th Cir. 1990) (rejecting a

defendant’s complaint “that he was denied an evidentiary hearing on disputed matters

. . . . [because he] never requested an evidentiary hearing”). The requirements “imposed

on the court at [§ 3582(c)(2)] proceedings cannot be greater than those imposed at an

original sentencing.” Verdin-Garcia, 824 F.3d at 1221. Thus, when a defendant disputes

facts but fails to request a hearing in a § 3582(c)(2) proceeding, a district court need not

hold a hearing. We accordingly find no error.

4. Fact Finding of Intent

We review factual findings made by sentencing courts for clear error, including

findings made in response to § 3582(c)(2) motions.9 Mr. Piper argues the district court’s

finding that he “created the video so that it would be disclosed, viewed and construed as a

threat to cooperators” was clearly erroneous. ROA, Vol. I at 137 n.1. We disagree.

“A factual finding is clearly erroneous only if it is without factual support in the

record or if, after reviewing all the evidence, we are left with a definite and firm

conviction that a mistake has been made.” United States v. Craig, 808 F.3d 1249, 1255

(10th Cir. 2015) (brackets and quotations omitted).

The district court did not commit clear error. It is undisputed that:

9
This is consistent with circuits that have reviewed cases decided under
§ 3582(c)(2). See, e.g., United States v. Zayas-Ortiz, 808 F.3d 520, 523 (1st Cir. 2015);
United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013); United States v. Valentine, 694
F.3d 665, 669-70 (6th Cir. 2012); United States v. Cooley, 590 F.3d 293, 295 (5th Cir.
2009).

- 16 -
  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.

 The video shows a hostage figure who is initially “bound and gagged in a dark
room” and whose head ultimately hangs forward, motionless.

 After creating and performing in the video, Mr. Piper allowed someone to
preserve a copy of it.

ROA, Vol. I at 115, 136.

Based on the foregoing content and Mr. Piper’s decisions to (1) perform in a video

suggesting a violent threat and (2) leave the video with a third party, we lack a “definite

and firm conviction” that the district court erred in finding Mr. Piper intended the video

to be viewed by and construed as a threat to the cooperating witnesses. Craig, 808 F.3d

at 1255 (quotations omitted).

The possibility of an innocent explanation for the video does not transform the

district court’s finding into clear error. If the “court’s account of the evidence is plausible

in light of the record viewed in its entirety,” we may not reverse it even if we might have

weighed the evidence differently. Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985). Put simply, “[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Id. Because the district

court’s interpretation of the video is plausible, another potential interpretation does not

make the court’s finding about Mr. Piper’s intent clearly erroneous.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of Mr. Piper’s

motion for sentence reduction.

- 17 -