FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. No. 2:12-CR-20141-KHV-4)
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.
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.
KELLY, HARTZ, and MATHESON, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
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),
Conviction and Sentence
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.
Motion to Reduce Sentence
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.
Piper's Motion for a Sentence Reduction
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.
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
prosecution said the video was titled "No Leaks Frank
James - State to State, " 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
• 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
• 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.
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. 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
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 §
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.
District Court's Denial of Mr. Piper's Motion
district court denied Mr. Piper's motion for a reduced
sentence based ...