Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 79 CR 10042 -- Robert D. Morgan, Judge .
Before Bauer and Cudahy, Circuit Judges and Bartels, Senior District Judge.*fn**
Defendant-appellant Donald S. Dawson appeals a district court order denying his motion under Rule 35, Fed.R.Crim.P., for reduction of sentence. We vacate and remand for further proceedings consistent with this order.
Dawson and two co-defendants were charged with one count of conspiring to deliver cocaine in violation of 21 U.S.C. § 846 and with four counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). One co-defendant pleaded guilty to two of the distributing counts and was sentenced to a term of ten years with a special parole term of three years; the other has not been apprehended. Dawson refused to plead guilty because he claimed that he was not involved in any of the transactions alleged in the indictment. The government re-indicted Dawson on one count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Dawson pled guilty to this charge and the first indictment was dismissed. He admitted that he had delivered 663.35 grams of cocaine to an undercover agent. The trial court sentenced Dawson to the maximum term of fifteen years to be served pursuant to 18 U.S.C. § 4205(a), which prevents the Parole Commission from considering a parole request until the completion of one-third of the sentence, with a special parole term of ten years.
At sentencing, the court informed Dawson that it would consider a motion to reduce sentence. The court stated
Now, as your attorney knows, the court can reduce this sentence within 120 days if you can show that you have really seen the light and are on the right side of this drug problem. I don't know what you know about your sources or anything at all, but you know whatever you know and you can be on the side of the law as well as on the opposite side. Actions speak louder than words.
Dawson did not appeal his sentence, but subsequently filed a Rule 35 motion supported by an affidavit in which he stated that he felt that a reduction of the sentence would be appropriate in view of the ten year sentence imposed upon the co-defendant. Dawson claimed that he was given a harsher sentence because he had not volunteered any information about his source. He explained that he had not assisted the government because of strongly held personal principles and because of fear and concern for the safety of his wife, family, and himself. He further added that federal authorities knew the identity of his source as well as his source's location as the government had the location under surveillance on the day of the offense alleged in the indictment. Dawson also requested that any sentence imposed be served pursuant to 18 U.S.C. § 4205(b)(2) so that his eligibility for parole would be determined solely by the Parole Commission's guidelines. Dawson sought an evidentiary hearing on his motion, which the district court in its discretion denied.
On April 30, 1980, the court denied Dawson's Rule 35 motion in a short order, stating that the sentence was sound when imposed, that it saw no need for a change of sentence, and that the "route to minimum custody time is through the Parole Commission." At the same time the court declined to allow the sentence to be served pursuant to section 4205(b)(2), even though section 4205(a) prevents the Parole Commission from considering a parole request until the completion of one-third of the sentence in prison.
A Rule 35 motion for reduction of sentence is addressed to the sound discretion of the trial court. United States v. Brown, 428 F.2d 1191 (7th Cir.), cert. denied, 400 U.S. 941, 91 S. Ct. 238, 27 L. Ed. 2d 245 (1970). The scope of our appellate review of a Rule 35 denial is narrow; the decision of the district court will be set aside only if the trial court abused its discretion. Id.; United States v. Donner, 528 F.2d 276 (7th Cir. 1976), overruled on other grounds, Lawary v. United States, 599 F.2d 218 (7th Cir. 1979). We have no power to change or reduce sentences imposed within the requisite legislative limits on the ground that the sentence is too severe, Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948), unless the trial court failed to exercise any discretion at all in imposing sentence. United States v. Main, 598 F.2d 1086, 1094 (7th Cir.), cert. denied, 444 U.S. 943, 100 S. Ct. 301, 62 L. Ed. 2d 311 (1979).
The trial court did exercise its discretion. It considered a number of factors before it initially sentenced Dawson. The court reviewed the presentence report and the letters filed by defendant and various friends and relatives. The court also considered the nature of the crime charged, Dawson's claimed religious conversion, and Dawson's background and childhood circumstances. The court, by stating that it would entertain a motion to reduce sentence if Dawson cooperated with the government by supplying information about his drug sources, implied that it had also considered the fact that Dawson had refused to cooperate with the government. When Dawson indicated his unwillingness in his Rule 35 motion to assist the government, the trial court refused to reduce the sentence. It was not improper for the district court to give some weight to defendant's failure to cooperate with the prosecution. Roberts v. United States, 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980).
While we agree with defendant that the sentence appears to be very harsh, we have no authority to take action based on the evaluation of the severity of the sentence. We find that the trial court did not abuse its discretion in denying Dawson's Rule 35 motion.
On June 16, 1980, subsequent to Dawson's notice of appeal filed on May 12, 1980, the Supreme Court held that Congress did not intend in 21 U.S.C. § 846 "to authorize special parole terms for conspiracy convictions." Bifulco v. United States, 447 U.S. 381, 398, 100 S. Ct. 2247, 2258, 65 L. Ed. 2d ...