IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50474
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD LADD FALDYN,
Defendant-Appellant.
_______________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
(A-90-CR-79)
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May 08, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Ronald Ladd Faldyn appeals the district court's denial of his
motion for a reduction of sentence pursuant to 18 U.S.C. §
3582(c)(2) and U.S.S.G. § 1B1.10. We affirm.
Pursuant to a plea agreement, Faldyn pleaded guilty to two
offenses: maintaining a place for manufacturing methamphetamine in
violation of 21 U.S.C. 856(A)(1); and endangering human life while
illegally manufacturing methamphetamine in violation of 21 U.S.C.
§ 858. The district court sentenced Faldyn to concurrent prison
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
terms of 150 months for the first offense and 120 months for the
second. Faldyn's prison sentence constituted a significant
downward departure of seven levels from Faldyn's original
sentencing range under the United States Sentencing Guidelines
("U.S.S.G." or the "Guidelines"). This reduction was attributable
to Faldyn's acceptance of responsibility and his post-arrest
cooperation with the government. U.S.S.G. §§ 3E1.1, 5K1.1(a).
Faldyn appealed his sentence, and this court affirmed.
United States v. Faldyn, No. 91-81813, slip op. (5th Cir. Nov. 21,
1991). We noted in our decision that, under the Guidelines, the
district court should have used a sentencing range of 151-188
months in sentencing Faldyn. However, the court mistakenly used a
lower range of 135-168 months in arriving at Faldyn's 150-month
prison term.
Faldyn later filed a motion with the district court for a
reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2)1 and
1
Section 3582(c)(2) provides in pertinent part:
(c) Modification of an imposed term of imprisonment.
...
(2) 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 . . . the court may reduce
the term of imprisonment, after considering the factors
set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2).
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U.S.S.G. § 1B1.10.2 In his motion, Faldyn asked the court to
reduce his 150-month prison sentence to 30 months because of the
retroactive effect of Amendment 4843 to the Guidelines. Faldyn
claimed that he was eligible for resentencing under Amendment 484,
which would require a recalculation of his sentence based upon the
actual amount of methamphetamine (excluding any manufacturing
byproducts such as waste water) that was seized from him. Faldyn
maintained that he was sentenced for 14.8 kilograms of controlled
substances that contained only trace amounts of methamphetamine and
2
U.S.S.G. § 1B1.10 provides in pertinent part:
§ 1B1.10. Retroactivity of Amended Guideline Range (Policy
Statement)
(a) Where a defendant is serving a term of
imprisonment, and the guideline range applicable to
that defendant has subsequently been lowered as a
result of an amendment to the Guidelines Manual ...
a reduction in the defendant's term of imprisonment
is authorized under 18 U.S.C. § 3582(c)(2). ... (b)
In determining whether, and to what extent, a
reduction in sentence is warranted for a defendant
eligible for consideration under 18 U.S.C. §
3582(c)(2), the court should consider the sentence
that it would have imposed had the amendment(s) to
the guidelines ... been in effect at the time the
defendant was sentenced.
U.S.S.G. § 1B1.10.
3
Amendment 484 modified the Commentary to § 2D1.1 of the
Guidelines in order to address an inter-circuit conflict regarding
the meaning of the term "mixture or substance." In pertinent part,
the new language added to the Commentary provides: "Mixture or
substance does not include materials that must be separated from
the controlled substance before the controlled substance can be
used. Examples of such materials include ... waste water from an
illicit laboratory used to manufacture a controlled substance."
Amendment 484, U.S.S.G. App. C (1995).
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consisted primarily of manufacturing byproducts. According to
Faldyn, a quantitative analysis of the seized substances had never
been performed. He therefore asked that the actual amounts of
methamphetamine be established by the district court at a
resentencing.
The district court, without calculating the sentence that
Faldyn would have received if Amendment 484 had been in place when
Faldyn was originally sentenced and without conducting a hearing,
denied Faldyn's motion for a reduction of sentence. United States
v. Faldyn, No. A-90-CR-079(6) (W.D. Tex. June 9, 1995) (order
denying motion for reduction of sentence is referred to hereinafter
as the "Order").
On appeal, Faldyn argues that the district court abused its
discretion in denying his motion for reduction by (1) refusing to
hold an evidentiary hearing to compute the actual quantity of
methamphetamine contained in the substances that were seized; and
(2) failing to consider the sentence that would have been imposed
if Amendment 484 had been in effect at the time that Faldyn was
originally sentenced. See 18 U.S.C. § 3582(c)(2); U.S.S.G. §
1B1.10.
The decision to reduce a sentence under 18 U.S.C. § 3582(c)(2)
is discretionary, and we therefore review the district court's
decision only for an abuse of that discretion. United States v.
Shaw, 30 F.3d 26, 28 (5th Cir. 1994). Our review of this record
reveals no such abuse.
-4-
Our court has previously explained that section 3582(c)(2)
permits a district court to reduce a defendant's sentence where the
term of imprisonment was originally based on a Guideline range that
was subsequently lowered, and where the reduction would be
consistent with the applicable policy statements in the Guidelines.
United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). The
statute also directs the district court to consider the factors
enumerated in 18 U.S.C. § 3553(a), which include: the nature and
the circumstances of the offense and the history and
characteristics of the defendant; the need for the sentence imposed
to reflect the seriousness of the offense and to protect the public
from further crimes of the defendant; the kinds of sentences
available; any pertinent Guidelines policy statement; and the need
to avoid unwarranted sentencing disparities among defendants with
similar records found guilty of similar conduct. 18 U.S.C. §
3553(a); United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.
1995). Our court has further explained that Amendment 484 of the
Guidelines effectively reduced certain sentencing ranges by
excluding from a controlled substance's weight those substances,
such as waste water, that must be separated out before the drug can
be used. United States v. Bergman, No. 94-20878, slip op. at 2
(5th Cir. Sept. 20, 1995); see also Amendment 484, U.S.S.G. App. C
(1995); U.S.S.G. § 2D1.1, comment (n.1) (1995).
Neither the district court in its Order nor the government on
appeal dispute Faldyn's eligibility for a reduction of sentence
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under Amendment 484. Indeed, the district court's Order expressly
acknowledges Faldyn's argument that he is eligible for a sentence
reduction under Amendment 484 because waste water was used in
calculating Faldyn's base offense level. Order at 2. The district
court, however, declined to exercise its discretion to reduce
Faldyn's sentence in the light of its application of the section
3553(a) factors to the facts of Faldyn's case. After performing a
factual inquiry that included a review of the presentence
investigation report and the complete record of this case, the
district court specifically noted that Faldyn was involved with
many other persons in the manufacture and distribution of multi-
pound quantities of methamphetamine and that his criminal history
reflected that he had been involved in the manufacture of
methamphetamine on other occasions. The district court concluded
that Faldyn's sentence was necessary to reflect the seriousness of
his offense, promote respect for the law, provide just punishment,
afford adequate deterrence, and protect the public from further
crimes that Faldyn might commit.
We agree with the district court that on this record the
section 3553(a) factors compel a conclusion that no reduction is
warranted in Faldyn's case. We are further persuaded, in the light
of these compelling factors, that a hearing to determine the actual
amount of methamphetamine contained in the seized substances and a
recalculation of Faldyn's sentence under the new Guidelines would
be a meaningless exercise and would serve no purpose consistent
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with the overall goals and policies of the Guidelines. Even if
such a hearing were to result in a determination that Faldyn's base
level under Amendment 484 would be lower than the already-reduced
sentence that he originally received, the district court would
still be required under section 3582(c)(2) to consider the
applicable section 3553(a) factors. Thus, based on the district
court's assumption of Faldyn's eligibility for a reduction of his
sentence under Amendment 484 and based on the section 3553(a)
factors that it has already articulated in its Order, the district
court would justifiably decline to reduce Faldyn's sentence
notwithstanding the results of a hearing or a sentence
recalculation.4
4
Our holding today does not contravene our holding in a prior
unpublished opinion, United States v. Bergman, No. 94-20878, slip
op. (5th Cir. Sept. 20, 1995). In Bergman, we remanded to the
district court for a determination of the actual amount of
phenylacetone (a precursor chemical necessary for the manufacture
of methamphetamine) present in the controlled substance that was
seized from the defendant because the actual amount was in doubt
and that amount had been the primary factor in determining the
defendant's sentence range. On the facts of the Bergman case, we
held that it was an abuse of discretion to deny a section
3582(c)(2) motion without further factual inquiry. Id. at 3.
Unlike Bergman, the district court in this case acknowledged
Faldyn's argument that the actual amount of methamphetamine was in
doubt and that waste water was used in calculating his base
sentence; the court then proceeded to perform the necessary factual
inquiry. The district court reviewed Faldyn's entire record and
analyzed the relevant statutory factors listed in 18 U.S.C. §
3553(a). The district court's factual inquiry and resulting legal
conclusions clearly support its decision to deny any further
reduction of Faldyn's sentence.
-7-
The district court's judgment is therefore
A F F I R M E D.
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