                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2344
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Cameron Foster,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 15, 2009
                                Filed: August 14, 2009
                                 ___________

Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and ROSENBAUM,1
      District Judge.
                             ___________

COLLOTON, Circuit Judge.

       Cameron Foster moved for a reduction of his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 706 to the sentencing guidelines. The district court
granted the motion in part, reducing Foster’s sentence from 162 months to 137
months’ imprisonment. On appeal, Foster argues that the district court erred by
refusing to appoint counsel to represent him and by failing to order a new presentence
investigation report (“PSR”) or to hold a hearing on his motion. He also contends that

      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
the district court abused its discretion by failing to consider Foster’s post-sentencing
conduct. As explained below, we conclude that a remand for further proceedings is
warranted under the unusual circumstances of this case, based on a procedural flaw
that came to light only during the proceedings in this court.

                                           I.

      In December 2002, Foster was convicted of possessing with intent to distribute
cocaine base, commonly known as “crack cocaine,” in violation of 21 U.S.C.
§ 841(a)(1). See United States v. Foster, 344 F.3d 799 (8th Cir. 2003). At sentencing
in February 2003, the district court found that Foster was responsible for at least 20
grams but less than 35 grams of cocaine base, calculated a guideline range of 130 to
162 months’ imprisonment under the then-mandatory sentencing guidelines, and
sentenced Foster to 162 months’ imprisonment. Foster was represented at sentencing
and on direct appeal by the federal public defender.

      In January 2008, Foster moved pro se for a reduction in his sentence pursuant
to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the sentencing guidelines, which
was declared retroactive by the Sentencing Commission. Amendment 706, as
modified by Amendment 711, changed the drug quantity table set forth at USSG
§ 2D1.1 to reduce by two levels the base offense levels for offenses involving cocaine
base. Foster also sought the appointment of counsel to represent him in the § 3582(c)
proceeding.

      On January 15, 2008, the same day that Foster’s motion was docketed, the
Chief Judge of the Eastern District of Missouri entered an administrative order
appointing the federal public defender to represent any defendant, like Foster,
“previously determined to have been entitled to appointment of counsel, to determine
whether or not that defendant may qualify to seek reduction of sentence and to present
any motions or applications for reduction” arising out of the amendments to the crack-

                                          -2-
                                           2
cocaine guidelines. The order also provided for alternative appointments if the federal
public defender determined that a conflict of interest prevented its representation of
a defendant.

       In response to Foster’s motion, the government acknowledged that Foster was
eligible for a reduced sentence, calculated an amended guideline range of 120 to 137
months’ imprisonment, and recommended that the district court resentence Foster to
137 months’ imprisonment. Foster filed a pro se reply, arguing that a 120-month
sentence was appropriate, in light of the sentencing factors set forth in 18 U.S.C.
§ 3553(a) and his post-sentencing rehabilitation while incarcerated. See USSG
§ 1B1.10, comment. (n.1(B)). He submitted a twelve-page appendix to support his
claims of rehabilitation, and requested that the court hold an evidentiary hearing.
Apparently unbeknownst to Foster, the district court also received a memorandum
from the probation office summarizing Foster’s initial sentence, the calculation of his
amended guideline range, and his “institutional adjustment” while incarcerated. The
record reflects that the memorandum was transmitted to the federal public defender’s
office, which represented Foster in his underlying case.

      On May 20, 2008, the district court granted Foster’s motion in part. The court
calculated an amended guideline range of 120 to 137 months’ imprisonment, and
resentenced Foster to 137 months’ imprisonment. The court also denied Foster’s
motion for appointment of counsel and his request for a hearing.

                                           II.

        Foster challenges, among other things, the procedures used by the district court
in considering his § 3582(c) motion. Because a sentence reduction proceeding is not
a full resentencing, see United States v. Starks, 551 F.3d 839 843 (8th Cir. 2008), cert.
denied, 129 S. Ct. 2746 (2009), a district court has “considerable leeway” in
determining the appropriate procedures. United States v. Young, 555 F.3d 611, 615

                                          -3-
                                           3
(7th Cir. 2009). We agree with other circuits that challenges to the procedures used
by the district court to adjudicate motions under § 3582(c)(2) should be reviewed for
abuse of discretion. See United States v. Styer, No. 08-2951, 2009 WL 766494, at *2
(3d Cir. Mar. 25, 2009); Young, 555 F.3d at 615.

       One of Foster’s specific complaints is that the district court should have ordered
the preparation of a new presentence report before ruling on the motion. It turns out,
however, that the United States Probation Office (“USPO”) did prepare a
memorandum regarding Foster’s request for reduction of sentence, and the
memorandum was provided to the court for use in the § 3582(c) proceeding. Foster
evidently was unaware of this memorandum because the probation office transmitted
the document only to the federal public defender and not to Foster directly. The
federal public defender represented Foster in the underlying criminal case, but never
appeared on behalf of Foster in the § 3582(c) proceeding.2

       The district court, having received the USPO memorandum, relied on certain
derogatory information about Foster’s behavior in prison as a basis to limit the extent
of the reduction granted pursuant to § 3582(c), saying that Foster’s institutional
adjustment was “mixed at best.” In another quirk of procedure, however, Foster was
unaware that the district court had relied on a memorandum from the USPO in
resolving the § 3582(c) motion, because the district court’s order of May 20, 2008,
which explained the court’s rationale for its decision, was not docketed by the clerk
of the district court.

      Only after oral argument in this court did the district court learn that its
explanatory order was not docketed. The order was finally docketed on April 15,
2009, and transmitted to this court. The district court explained in this order that

      2
        When the clerk of this court appointed the federal public defender to represent
Foster on appeal, the public defender moved to withdraw based on an asserted conflict
of interest. This court granted the motion, and appointed substitute counsel.

                                          -4-
                                           4
while it granted Foster’s motion under § 3582(c), the court was not persuaded to
reduce his sentence to the bottom of the amended guideline range. Rather, the court
stated that it had “carefully considered the matter and [was] persuaded again to
sentence defendant at the top of the now-applicable Guidelines range, in view of all
appropriately considered factors, including [Foster’s] institutional adjustment after
sentencing, which is mixed at best.” (R. Doc. 104, at 3) (emphasis added).

        The district court has considerable discretion in deciding how to evaluate a
§ 3582(c) motion, but the procedure used in this case violates the generally accepted
principle that a criminal defendant should have access to the material on which the
court will base its sentencing decision and an opportunity to respond to information
that is prejudicial to the defendant’s cause. This principle is embodied in Federal Rule
of Criminal Procedure 32 with respect to original sentencing proceedings, see United
States v. Lovelace, 565 F.3d 1080, 1091-93 (8th Cir. 2009); United States v. Hayes,
171 F.3d 389, 392 (6th Cir. 1999), and although Rule 32 does not by its terms apply
to a § 3582(c) proceeding, the basic right to be apprised of information on which the
court will rest its decision should be incorporated into the procedures employed by a
district court under § 3582(c). See United States v. Mueller, 168 F.3d 186, 189 (5th
Cir. 1999) (holding that a defendant must be apprised of the contents of a PSR
addendum considered by the district court in a § 3582(c) proceeding); United States
v. Curran, 926 F.2d 59, 62-63 (1st Cir. 1991) (invoking supervisory authority to
require disclosure to defendant of documents to which Rule 32 does not apply at an
original sentencing). Here, apparently due to a misunderstanding about whether
Foster was represented by the federal public defender in the § 3582(c) proceeding, the
district court and the probation office failed to provide Foster with the USPO
memorandum. As a result, Foster was not aware that this document was before the
court, and he was unable to respond to information in that memorandum on which the
district court relied to reject Foster’s request for a greater reduction in sentence.




                                          -5-
                                           5
       Foster did not raise this precise argument on appeal, but we have authority to
consider the matter sua sponte. See DeRoo v. United States, 223 F.3d 919, 926 (8th
Cir. 2000); United States v. Granados, 168 F.3d 343, 346 (8th Cir. 1999) (per curiam).
The propriety of the district court’s reliance on a memorandum that was not furnished
to Foster is closely related to Foster’s arguments that the district court erred by failing
to order a supplemental PSR and failing to consider his post-sentencing conduct.
Foster had no way to know about the USPO memorandum until after he filed his
opening brief in this court, at which time the memorandum was mentioned in the
government’s brief, discussed at oral argument, and revealed to have been relied upon
in the newly docketed order of the district court. Given that the district court
specifically relied on negative information from the memorandum as a basis to
sentence Foster at the top of the amended guideline range, we cannot say that the
procedural error was harmless.

      For these reasons, we conclude that the procedure employed with respect to the
USPO memorandum was an abuse of discretion under the circumstances of this case,
and that Foster is entitled to an opportunity to review and respond to the memorandum
before the district court resolves the § 3582(c) motion. Accordingly, the district
court’s amended judgment filed on May 20, 2008, is vacated, and the case is
remanded for further proceedings with respect to Foster’s motion for reduction of
sentence under 18 U.S.C. § 3582(c).
                          ______________________________




                                           -6-
                                            6
