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United States v. Tollefson

United States Court of Appeals, Eighth Circuit

April 6, 2017

United States of America Plaintiff-Appellee
v.
Bruce Charles Tollefson Defendant-Appellant

          Submitted: March 6, 2017

         Appeal from United States District Court for the District of North Dakota - Fargo

          Before BENTON, BEAM, and MURPHY, Circuit Judges.

          MURPHY, Circuit Judge.

         Bruce 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[1] sentenced him to 227 months imprisonment.

         In 2015 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 affirm.

         I.

         Beginning 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.

         In 2005 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.

         In 2014 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.

         On May 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.

         On 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 appeals.

         II.

         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 ...


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