Submitted: March 6, 2017
from United States District Court for the District of North
Dakota - Fargo
BENTON, BEAM, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Tollefson pled guilty in 2005 to one count of conspiracy to
possess with intent to distribute controlled substances in
violation of 21 U.S.C. §§ 841(a)(1) and 846 and one
count of violent crime in aid of racketeering activity in
violation of 18 U.S.C. § 1959(a)(3). The district
court sentenced him to 227 months imprisonment.
Tollefson moved for a sentence reduction based upon amendment
782 to the sentencing guidelines which reduced base offense
levels by two for crimes involving controlled substances. The
district court denied the motion. Tollefson appeals, and we
in 2000, Tollefson conspired with others to distribute
cocaine, methamphetamine, and marijuana. The members of the
conspiracy would use violence and threats of violence to
promote their drug activities. For example, during the course
of the conspiracy Tollefson asked Charles Dewald to assault a
coconspirator in order to prevent him from sharing
information with the police. Dewald thereafter cut the
coconspirator's throat with a knife. Although the
coconspirator survived, the wound required approximately
twenty sutures to close.
Tollefson pled guilty to one count of conspiracy to possess
with intent to distribute controlled substances, in violation
of 21 U.S.C. §§ 841(a)(1) and 846, and one count of
violent crime in aid of racketeering activity, in violation
of 18 U.S.C. § 1959(a)(3). At sentencing the district
court determined that his total offense level was 40 and that
his criminal history category was II, resulting in a
guideline range of 324 to 405 months imprisonment. The
district court departed downward and sentenced Tollefson to
227 months, which accounted for 13 months Tollefson had
served in state prison.
the Chief Judge of the District of North Dakota issued a
standing order appointing the Office of the Federal Public
Defender for the Districts of South Dakota and North Dakota
to represent all defendants in North Dakota "who may be
eligible to seek a reduced sentence based upon retroactive
application of Amendment 782" to the sentencing
guidelines. Amendment 782 reduced base offense levels by two
for crimes involving cocaine, methamphetamine, marijuana, and
other controlled substances. U.S.S.G., app. C, amend. 782.
Amendment 788 made amendment 782 retroactive. U.S.S.G., app.
C, amend. 788.
15, 2015 Tollefson filed a pro se motion for a sentence
reduction under 18 U.S.C. § 3582(c) based upon amendment
782. Tollefson argued that his new offense level was 38,
making his new guideline range 262 to 327 months. After
detailing his rehabilitation efforts in prison, Tollefson
requested a new sentence of 165 months. On November 23, 2015
Tollefson's federal public defender filed a supplement to
his pro se motion. The public defender requested a new
sentence of 183 months, amounting to the same percentage
reduction from the bottom end of the amended guideline range
as his original sentence had been from the bottom end of the
original guideline range. The government objected to any
reduction to Tollefson's sentence.
March 1, 2016 the district court denied Tollefson's
motion for a sentence reduction. The court first noted that
"Tollefson is eligible for a sentence reduction"
under amendment 782, but it denied the reduction after
considering "the policy statements issued by the
Sentencing Commission and the factors set forth in 18 U.S.C.
§ 3553(a)." Tollefson filed a pro se motion to
reconsider, which the district court denied. Tollefson
argues that the district court violated his Sixth Amendment
right to proceed pro se when it "forced [counsel] upon
him such that Tollefson had no opportunity to present his
case in his own way." We review de novo this
constitutional challenge. See United States v.
Fernandez, 710 F.3d 847, 849 (8th Cir. 2013) (per
curiam). Under the Sixth Amendment, "[i]n all criminal
prosecutions, the accused shall . . . have the Assistance of
Counsel for his defence." U.S. Const. amend. VI. In
Faretta v. California, 422 U.S. 806, 807 (1975), the
Supreme Court held that the ...