Court Could Consider Newly Disclosed Pretrial Conduct To Deny 3582 Sentence Reduction

United States v. Piper, 2016 WL 6211807 (October 25, 2016): Piper appealed the district court’s decision to deny his 18 U.S.C. § 3582 (c)(2) motion. In the lower court, the government agreed that his offense level had been retroactively lowered for the drug offense to which he pleaded guilty. But it opposed the reduction because of a rap video Piper made during his pretrial release. In that video he supposedly accused certain people of cooperating against him. The district court agreed that the video and Piper’s underlying offense demonstrated he was a significant danger to the community. Consequently it ruled he should not get the sentencing reduction. The panel affirmed that decision. It was unpersuaded by Piper’s four arguments. First, the panel said that the district court did not abuse its discretion by not addressing Piper’s policy arguments. Sec. 3582(c)(2) does not incorporate sec. 3553(c) which requires the court to state its reasons for the particular sentence. The court considered all the sec. 3553(a) factors and that was all it was required to do. Second, the court did not exceed its authority by considering the rap video which Piper labeled newly alleged presentencing conduct. The panel reasoned that nothing in USSG sec. 1B1.10 or Dillon require a court to disregard new allegations of presentencing conduct. Third, the court did not err in not having an evidentiary hearing before finding Piper created the video so it would be published and viewed as a threat to cooperators. To begin with, Piper did not request a hearing. According to USSG sec. 6A1.3(a), when an accused challenges certain facts the court does not have to hold a hearing unless the accused requests one. Finally, even without a hearing the court could glean Piper’s intent to threaten from watching the video. The court concluded that the video’s content and Piper’s decision to perform in a video in which he suggests a violent threat and leaving the video with a third party demonstrate the video was intended to be a threat to cooperating witnesses.