United States v. Simkins

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20569
_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DAVID HAROLD SIMKINS

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(CR-H-89-420-1)

_________________________________________________________________

June 19, 1996
Before KING, DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

David Harold Simkins appeals the district court’s denial of

his motion for reduction of sentence under 18 U.S.C. §

*
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that this opinion should not be published and is not precedent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.
3582(c)(2). Finding no abuse of discretion, we affirm the

decision of the district court.

I. BACKGROUND

Simkins was charged with attempting to manufacture more than

100 grams of methamphetamine in violation of 21 U.S.C. §§

841(a)(1) and 846. Approximately five gallons of liquid reaction

mixture were found in Simkins's laboratory and tests revealed

that the strength of the p2p, the active-drug ingredient, was

20%. On February 4, 1991, Simkins entered a plea of guilty

pursuant to an agreement with the Government whereby the

Government agreed to recommend the minimum guideline sentence.

The Government recommended that the court calculate the quantity

of drugs charged to Simkins by using the five gallons of p2p and

converting it to a heroin equivalence of 3.16 kilograms.

Adopting this recommendation, the district court sentenced

Simkins to 210 months imprisonment. Simkins appealed, and this

court affirmed his sentence in United States v. Simkins, No. 91-

2445 (5th Cir. March 23, 1992) (unpublished).

On February 23, 1995, Simkins filed a motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2), and he requested

that the district court set the motion for a hearing. Simkins

based his request for sentence reduction upon a retroactive

amendment to §2D1.1 of the Sentencing Guidelines. The amendment

provides that waste material used in manufacturing drugs should

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not be used to calculate the amount of controlled substance

attributable to a defendant. USSG App. C., Amend. 484 (1993).

Simkins argued that, of the five gallons of liquid reaction

mixture seized from the illicit lab, 80% was excludable waste

water.

The district court ordered the Government to file a response

to Simkins's motion for sentence reduction. On April 27, 1995,

the Government responded that Simkins's sentence should not be

reduced because, among other things, "Simkins intended to produce

as much p2p as possible, up to two and one half gallons." The

Government attached a declaration from the DEA chemist who

originally analyzed the chemical substance: He indicated that,

with additional “cooking,” the strength of the substance might

have attained a level as high as 50%, yielding as much as 9.1

kilograms of pure methamphetamine HCL.

On July 11, 1995, without granting a hearing, the district

court denied Simkins's motion for sentence reduction. In part,

the court's decision was based on the fact that, because

Simkins’s methamphetamine laboratory was located in a hotel room,

he had endangered the lives of unsuspecting lodgers. The court

also based its decision on the calculations contained in the DEA

chemist's declaration about the possible strength of the

substance after further processing.

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 II. DISCUSSION

The trial court must sentence a convicted defendant to a

term within the range provided by the Sentencing Guidelines,

unless it finds an aggravating circumstance not contemplated

under the Guidelines. United States v. Otero, 868 F.2d 1412,

1414 (5th Cir. 1989). Section 2D1.1 of the Sentencing Guidelines

addresses unlawful trafficking, manufacturing, importing, and

exporting of drugs. USSG §2D1.1. At the time of Simkins's

original sentencing in 1991, the drug quantity table in §2D1.1

provided that “[u]nless otherwise specified, the weight of a

controlled substance set forth in the table refers to the entire

weight of any mixture or substance containing a detectable amount

of the controlled substance." USSG §2D1.1 at 2.47 (1990).

When, subsequent to sentencing, the guideline range is

lowered by a retroactive amendment, 18 U.S.C. § 3582(c)

authorizes the court to reduce the sentence. United States v.

Levay, 76 F.3d 671, 672 (5th Cir. 1996). Section 3582(c)(2)

provides that:

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 reduction is consistent
with applicable policy statements issued by the
Sentencing Commission.

18 U.S.C. § 3582(c)(2). In 1993, with Amendment 484, the

Sentencing Guidelines Commission specified that certain

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materials, including waste water, must be excluded from

controlled substances in calculating the weight at sentencing.1

The Commission gave Amendment 484 retroactive effect. Levay, 76

F.3d at 673; see also USSG §1B1.10(d), p.s. (1993). Thus, it is

appropriate for a defendant to bring a motion for resentencing in

light of Amendment 484, pursuant to § 3582(c)(2).

The decision to reduce a sentence is within the discretion

of the district court. Levay, 76 F.3d at 673. The Sentencing

Guidelines instruct the district court that, in exercising this

discretion, it “should consider the sentence that it would have

imposed had the amendment(s) . . . been in effect at the time the

defendant was sentenced.” United States v. Allison, 63 F.3d 350,

351 (5th Cir.) (quoting USSG §1B1.10(b), p.s. (1995)), cert.

denied, 116 S. Ct. 405 (1995). We review a district court's

decision whether to reduce a sentence under § 3582(c)(2) for

abuse of discretion; we review a court's findings of fact under §

1
Specifically, Amendment 484 altered the commentary to
§2D1.1 to provide, in pertinent part:

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.
If such material cannot readily be separated from the
mixture or substance that appropriately is counted in the
Drug Quantity Table, the court may use any reasonable
method to approximate the weight of the mixture or
substance to be counted.

USSG App. C., Amend. 484 (1993).

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3582(c)(2) for clear error. Levay, 76 F.3d at 673.

Simkins raises two issues on appeal: 1. Whether the

district court gave adequate consideration to the sentence it

would have imposed had Amendment 484 been in effect at the time

Simkins was sentenced. 2. Whether Simkins was given an

opportunity to respond to the Government’s opposition to his

motion. We address these issues in turn.

First, Simkins contends that the district court abused its

discretion by denying his § 3582(c)(2) motion without considering

the sentence it would have imposed had Amendment 484 been in

effect when he was sentenced. Simkins concedes that the district

court determined that if he were sentenced today Simkins could

only be sentenced for 20% of the mixture found in his lab.

According to Simkins, however, the district court did not give

adequate consideration to the specific sentence Simkins would

receive today based on that amount. We disagree. After

examining the record, we conclude that the district court

adequately considered the sentence it would have imposed

originally had the guidelines as amended been in effect at the

time.

Simkins's second argument on appeal is that the district

court abused its discretion by relying on the DEA chemist’s

declaration without affording Simkins a meaningful opportunity to

respond. Although Simkins requested a hearing in his motion for

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sentence reduction under § 3582(c)(2), the district court ruled

on his motion without holding a hearing or notifying Simkins that

it was taking into account the declaration of the DEA chemist.

Based on Simkins’s reading of United States v. Townsend, 55 F.3d

168, 172 (5th Cir. 1995), Simkins contends that the district

court erred in not allowing him an opportunity to answer or

confront the DEA chemist.

Townsend was a § 3582(c)(2) proceeding with facts similar to

the case sub judice. As one of several individuals convicted of

conspiracy to manufacture more than 100 grams of methamphetamine,

Townsend was sentenced to 300 months imprisonment. Townsend

filed a motion for reduction in sentence and the district court

ordered the Government to respond. After filing its initial

response, the Government filed a supplemental response to which

was attached the transcript of testimony taken during the hearing

of one of Townsend’s co-conspirators. Although, Townsend “was

served with a copy of the transcript, he was never notified that

the court intended to rely on it in reaching a decision nor was

he told to respond to the testimony.” Townsend, 55 F.3d at 172.

No hearing was held. Based on the transcript submitted by the

Government, the district court denied Townsend’s motion for a

reduction in sentence. In vacating the order of the district

court, we held that the court must give the defendant notice and

an opportunity to respond if it intends to base its resentencing

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decision on evidence not presented at the original sentencing

hearing. Id.

Townsend, however, is distinguishable from the case at bar.

Townsend was a pro se defendant who maintained that he did not

know that he was allowed to reply to the Government's response.

Id. Noting that the defendant "had no notification that he could

respond [to] the testimony, nor any indication that the court

intended to consider the testimony in its § 3582(c)(2)

determination," we concluded that the defendant did not have

adequate notice under the circumstances. In the instant case,

Simkins was represented by counsel when he presented his §

3582(c)(2) motion to the district court. Unlike a pro se

defendant, an attorney is expected to know when he is required to

respond.

Section 3553(a) requires a court, when deciding whether to

modify a sentence, to consider "any pertinent policy statement

issued by the Sentencing Commission . . . that is in effect on

the date the defendant is sentenced." 18 U.S.C. § 3553(a). It

is true, as noted in Townsend, that according to one of the

relevant policy statements issued by the Sentencing Commission,

"[w]hen any factor important to sentencing determination is

reasonably in dispute, the parties shall be given an adequate

opportunity to present information to the court regarding that

factor." Townsend, 55 F.3d at 172 (quoting USSG §6A1.3(a),

p.s.). To be entitled to an evidentiary hearing, a defendant

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must demonstrate that: 1. a fact issue material to his sentence

is reasonably in dispute; and 2. the court cannot resolve it

without a full hearing. See United States v. Pologruto, 914 F.2d

67, 69 (5th Cir. 1990) (citing United States v. Mueller, 902 F.2d

336, 347 (5th Cir. 1990)). Whether to grant an evidentiary

hearing is within the discretion of the court. Mueller, 902 F.2d

at 347.

In the instant case, Simkins presented no evidence that

there was a dispute over any material fact. Moreover, the

district court did not deny Simkins's motion for resentencing

until approximately ten weeks after the Government filed its

response. Thus, Simkins had ample opportunity to rebut the

Government's facts. Nonetheless, in all that time, Simkins did

not object to the filing of the DEA chemist’s declaration. Nor

did Simkins explicitly apprise the court in any way of his

opposition to the declaration. In the context of a resentencing

inquiry, simply requesting a hearing will not suffice. In order

to counter the Government’s response, it was incumbent on Simkins

to raise a fact dispute.

Furthermore, the district court based its denial of

Simkins’s motion for sentence reduction, in part, on an

assessment of the facts peculiar to this case. In addition to

considering policy statements issued by the Sentencing

Commission, a court is required to consider a number of other

factors when deciding whether to reduce a defendant’s sentence.

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18 U.S.C. §§ 3553(a)& 3582(c)(2). “These factors include: the

nature and circumstances of the offense and the history and

characteristics of the defendant; the need for the sentence

imposed; and the kinds of sentences available. 18 U.S.C. §

3553(a).” United States v. Shaw, 30 F.3d 26, 29 n.1. (1994).

The district court determined that “in view of the nature and

circumstances of this case a sentence reduction should not be

made [because] Simkins operated a methamphetamine chemical

laboratory in [a] hotel room next to non-suspecting customers and

thereby endangered their lives.” Such a finding was not an abuse

of discretion.

A § 3582(c)(2) motion “is simply a vehicle through which

appropriately sentenced prisoners can urge the court to exercise

leniency to give certain defendants the benefits of an amendment

to the Guidelines.” United States v. Whitebird, 55 F.3d 1007,

1011 (5th Cir. 1995). By its own terms, application of §

3582(c)(2) is discretionary. United States v. Shaw, 30 F.3d at

28.

Based on the language of the statute and a review of the

facts of this case, we conclude that the district court did not

abuse its discretion in denying Simkins’s request for a hearing.

Additionally, we conclude that Simkins was afforded both notice

of the Government's response and ample opportunity to respond

thereto.

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 III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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