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United States v. Piper

United States Court of Appeals, Tenth Circuit

October 25, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
FRANK SHARRON PIPER, III, Defendant-Appellant.


          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.


         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. 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.

         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 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 ...

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