     Case: 16-50237      Document: 00513900522         Page: 1    Date Filed: 03/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-50237                                 FILED
                                                                               March 7, 2017

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellee

v.

G. B. BUTCH COLEMAN, JR.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       G. B. Butch Coleman was convicted and sentenced to 168 months of
imprisonment for his role in a drug-smuggling conspiracy. Following an
amendment to the Sentencing Guidelines, Coleman and the government filed
a joint motion, seeking a reduction in Coleman’s sentence. Coleman appeals
the district court’s denial of that motion.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-50237     Document: 00513900522      Page: 2    Date Filed: 03/07/2017



                                  No. 16-50237
                                         I
      Coleman was part of a conspiracy to smuggle large quantities of cocaine
into the United States. He was convicted after a jury trial of conspiring to
possess with intent to distribute more than five kilograms of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The Presentence
Report calculated Coleman’s Sentencing Guidelines range as 151 to 188
months. The district court sentenced Coleman to 168 months of imprisonment,
five years of supervised release, and a $100 special assessment.
      The Sentencing Guidelines were amended subsequent to Coleman’s
sentencing, reducing the sentencing range for many offenses. See U.S.S.G.,
App. C, Amend. 782. Pursuant to the amendment, Coleman and the
government jointly moved to reduce Coleman’s sentence to 134 months. The
district court conducted a brief hearing on the matter and, exercising its
discretion under 18 U.S.C. § 3582(c)(2), denied the motion. Coleman timely
appealed.
                                         II
      We review a district court’s denial of a motion to reduce a sentence under
18 U.S.C. § 3582(c)(2) for abuse of discretion. See United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009). “A district court abuses its discretion if it bases
its decision on an error of law or a clearly erroneous assessment of the
evidence.” United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
                                        III
      Title 18 U.S.C. § 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 by the Sentencing Commission . . . the
court may reduce the term of imprisonment, after considering the factors set
forth in section 3353(a) . . . .” Section 3353(a) in turn provides a list of factors
for the district court to consider in determining whether to reduce a sentence,
                                         2
    Case: 16-50237     Document: 00513900522     Page: 3   Date Filed: 03/07/2017



                                  No. 16-50237
including, among others, “the nature and circumstances of the offense and the
history and characteristics of the defendant,” the “seriousness of the offense,”
and “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” The
district court must also consider “any pertinent policy statement,”
18 U.S.C. § 3353(a)(5), which here includes the Sentencing Commission’s
instruction that courts “may consider post-sentencing conduct of the defendant
that occurred after imposition of the term of imprisonment in determining . . .
whether a reduction in the defendant’s term of imprisonment is warranted.”
U.S.S.G. § 1B1.10, cmt. (n.1(B)(iii)).
                                         IV
      Coleman argues that the district court abused its discretion in not
granting him a sentence reduction because (1) it failed to properly consider
mitigating evidence of Coleman’s post-sentence conduct, and (2) it “refused the
reduction simply because Coleman had gone to trial.”
      Coleman’s argument regarding post-sentence conduct fails on two fronts.
First, a district court is not required to consider post-sentencing conduct when
making a determination as to a sentence reduction. See U.S.S.G. § 1B1.19, cmt.
(n.1(B)(iii)); see also United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011)
(explaining that a district court “may” consider post-sentence conduct); United
States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008) (district court is
“allow[ed]” to consider post-sentencing conduct). Second, in Coleman’s case, the
district court’s order denying the sentence reduction noted that the district
court “[took] into account the policy statement set forth at USSG §1B1.10 . . . .”
The district court did not abuse its discretion in its consideration of Coleman’s
post-sentence conduct.
      Coleman’s argument that the district court refused to grant him a
sentence reduction because he exercised his Sixth Amendment right to a jury
                                         3
    Case: 16-50237     Document: 00513900522       Page: 4   Date Filed: 03/07/2017



                                   No. 16-50237
trial is more compelling. The government contends that the district court
properly considered the appropriate Section 3353(a) factors. In particular, the
government points to the district court’s statement at the hearing that
Coleman was responsible for “multiple kilos of cocaine coming through” as
evidence that the district court was particularly swayed by the seriousness of
the offense—one of the factors articulated in Section 3353(a). But, although the
record is sparse, it appears that the district court did not restrict its inquiry to
the Section 3353(a) factors. Indeed, the record strongly indicates that
Coleman’s choice to go to trial—not one of the factors articulated in Section
3353(a)—was something the district court considered when it denied the
motion. At the hearing, for example, the district court noted that “Mr. Coleman
went to jury trial,” reiterated again that “Mr. Coleman, of all the defendants
went to trial,” and then finally stated that Coleman had “put a lot of people . .
. in peril . . . by having to testify against him as well.” Over the course of a very
brief hearing, the district court three times stressed the fact that Coleman, of
all the defendants connected the conspiracy of which he was a part, exercised
his constitutional right to a jury trial.
      Because the district court improperly considered Coleman’s choice to go
to trial when denying the motion, the district court based its decision on an
error of law. That error constituted an abuse of discretion. See Henderson, 636
F.3d at 717. We recognize, however, that the district court, having witnessed
the trial and interacted with Coleman, is still in the best position to determine
whether a sentence reduction is warranted. We therefore VACATE the district
court’s denial of the motion, and REMAND for rehearing, with instructions to
consider only those factors outlined in 18 U.S.C. § 3353(a).




                                            4
