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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-50572
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT WADE TOWNSEND,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(June 5, 1995)
Before REAVLEY, KING, and WIENER, Circuit Judges.
PER CURIAM:
Robert Wade Townsend was convicted of conspiracy to
manufacture more than 100 grams of methamphetamine in violation
of 21 U.S.C. § 841(a) and 21 U.S.C. § 846. Townsend was then
sentenced to 300 months imprisonment, to be followed by eight
years of supervised release. Additionally, Townsend was fined
$5000. Subsequently, Townsend moved for a reduction in sentence
under 18 U.S.C. § 3582(c)(2), and the district court denied his
motion. Townsend, proceeding pro se, appeals, arguing that the
district court, in considering his § 3582(c)(2) motion,
improperly relied on testimony from a co-defendant's proceeding.
Because we find that the district court did not inform Townsend
that it intended to rely on that testimony and afford him a

meaningful opportunity to respond to that testimony, we remand
the decision of the district court.
I. BACKGROUND
Townsend was one of several individuals indicted and
convicted in connection with a conspiracy to manufacture
methamphetamine. Townsend appealed to this court, but we
affirmed his conviction in United States v. Harris, 932 F.2d 1529
(5th Cir. 1991), cert. denied, 502 U.S. 897 (1991). Townsend
then attempted a collateral challenge to his conviction in a
motion under 28 U.S.C. § 2255, but this challenge was also
unsuccessful.
On April 20, 1994, Townsend filed a motion for reduction in
sentence pursuant to 18 U.S.C. § 3582(c)(2).1 Specifically,
Townsend argued that changes to § 2D1.1 of the sentencing
1 Section 3582(c) provides that:
The court may not modify a term of imprisonment once it
has been imposed except that --
. . .
(2) 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 pursuant to 28 U.S.C. § 994(o), upon motion
of the defendant or the Director of the Bureau of
Prisons, or on its own motion, the court may reduce the
term of imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2).
2

guidelines mandated a reduction in his sentence from a guideline
range of 262-327 months to a guideline range of 100-125 months.2
The court ordered the probation office to prepare an
addendum to Townsend's presentencing report, taking into account
the amended guidelines. The district court noted that "[u]sing
the [amended] guidelines, the Probation Officer calculate[d] a
[sentencing] range of 120-150 months." On May 16, 1994, the
district court, "[h]aving reviewed the addendum prepared by the
probation office," ordered the government to respond to
Townsend's motion.
In its response, filed on May 27, 1994, the government
argued that application note 12 to U.S.S.G. § 2D1.1 was
applicable to Townsend's sentence. Specifically, the government
contended that because the amount of drugs seized did not reflect
the severity of Townsend's offense, his sentence should be based
in part on the size and capacity of the laboratory involved in
2 A 1993 amendment to U.S.S.G. § 2D1.1 excluded waste water
used in a controlled substance manufacturing process from the
calculation of the weight of a controlled substance. See
U.S.S.G. App. C, amend. 484. Under the amended version of the
sentencing guidelines, "[m]ixture of a controlled substance does
not include materials that must be separated from the controlled
substance before the controlled substance can be used. Examples
of such materials include . . . waste water from an illicit
laboratory used to manufacture a controlled substance." Id. The
former version of the guidelines, under which Townsend was
sentenced, provided that "unless otherwise specified the weight
of a controlled substance set forth in the table refers to the
entire weight of any mixture or substance containing a detectable
amount of the controlled substance." U.S.S.G. § 2D1.1(c)
(footnote to drug quantity table); see also United States v.
Shaw, 30 F.3d 26, 27-28 (5th Cir. 1994) (discussing the
amendment.) This particular amendment was given retroactive
effect. See U.S.S.G. § 1B1.10; Shaw, 30 F.3d at 28.
3

the conspiracy, as well as the size of the conspiracy itself.
Additionally, the government commented that:
If a hearing is held . . . the Government would like to
be given the opportunity to put on evidence to
demonstrate the amount of methamphetamine that should
be considered. At a hearing, a chemist could testify
as to the amount of methamphetamine that could have
reasonably been produced from the chemicals seized at
the lab sites, and the size and capabilities of each
lab, as well as any relevant conduct for which
[Townsend] should be held accountable under the
guidelines.
No hearing was held. Nevertheless, on June 15, the
government filed a "supplemental response to defendant's motion
for reduction of sentence," attaching, "for the Court's
consideration, . . . the transcript of the testimony of Joel
Budge, Supervising Criminalist of the Texas Department of Public
Safety Crime Laboratory, Drug Section . . . ." Budge's
testimony, taken in the hearing of one of Townsend's co-
conspirator's motion for the reduction of sentence, indicated
that the lab involved in the manufacture of the metaphetamines
was capable of producing a maximum of five pounds of drugs.
On July 26, the district court issued an order denying
Townsend's motion for a reduction of sentence. The district
court found that Budge's testimony regarding the capabilities of
the lab was "credible and reasonable, [and] would result in a
base offense level of 32, which with a criminal history category
of VI would result in guideline range of 210-262 months." The
district court also discussed the magnitude of the conspiracy,
noting that Townsend "was a part of a very large conspiracy
involving a number of Defendants and a large amount of
4

methamphetamine. The seriousness of the overall conspiracy is
reflected in the fact that one co-conspirator received a life
sentence and several others received sentences in the range of
200-300 months." Finally, after noting that Townsend was
"implicated in the operation of additional methamphetamine
laboratories," the court concluded that:
In considering whether to exercise the Court's
discretion in this matter, the Court considers the
factors set forth in § 3553, particularly paragraphs
(1), (2) and (6). Having done so, the Court is
convinced that the 300 month sentence originally
imposed is appropriate under either the current
guidelines or those in effect in June of 1990.
Townsend appeals.
II. STANDARD OF REVIEW
The decision whether to reduce a sentence under § 3582(c)(2)
is discretionary, and, therefore, we review the district court's
determination for abuse of discretion. United States v. Pardue,
36 F.3d 429, 430 (5th Cir. 1994), cert. denied, 63 U.S.L.W. 3817
(U.S. May 17, 1995); Shaw, 30 F.3d at 28-29.
III. DISCUSSION
Townsend argues that the district court erred in not
reducing his sentence under the guidelines and in accepting
Budge's testimony without allowing Townsend the opportunity to
confront it.
The Guidelines themselves instruct that:
In determining whether, and to what extent, a reduction
in sentence is warranted for a defendant eligible for
5

consideration under 18 U.S.C. § 3582(c)(2), the court
should consider the sentence it would have imposed had
the amendment[] to the guidelines . . . been in effect
at the time the defendant was sentenced.
U.S.S.G. § 1B1.10(d). Additionally, Section 3582(c)(2) gives the
district court discretion to reconsider a sentence when a change
in the guidelines results in the possibility of a lower
sentencing range. See Shaw, 30 F.3d at 28; United States v.
Miller, 903 F.2d 341, 349 (5th Cir. 1990). When a court
considers the propriety of a reduction of a sentence, §
3582(c)(2) also mandates an examination of the factors set forth
in 18 U.S.C. § 3553(a) (the same factors considered in the
initial sentence)3 to the "extent they are applicable," and it
3
Section 3553(a) lists the following as factors to be
considered in imposing a sentence:
(1)
the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2)
the need for the sentence imposed --
(A)
to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B)
to afford adequate deterrence to criminal conduct;
(C)
to protect the public from further crimes of the
defendant; and
(D)
to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner;
(3)
the kinds of sentences available;
(4)
the kinds of sentence and the sentencing range
established for --
(A)
the applicable category of offense committed by
the applicable category of defendant as set forth
in the guidelines issued by the Sentencing
Commission pursuant to section 994(a)(3) of title
28, United States Code;
(B)
in the case of a violation of probation or
supervised release, the applicable guidelines or
policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title
6

allows the court to reduce the sentence of a defendant "if such a
reduction is consistent with applicable policy statements issued
by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).
In the context of the initial sentencing decision, the court
may consider many factors in determining the appropriate
punishment. Congress provided that "[n]o limitation shall be
placed on the information concerning the background character,
and conduct of a person convicted of an offense which a court . .
. may receive and consider for the purpose of imposing an
appropriate sentence." 18 U.S.C. § 3661; see also United States
v. Berzon, 941 F.2d 8, 21 (1st Cir. 1991) ("Generally, there is
no limitation on the information which a court may consider in
sentencing other than that the information bear sufficient
indicia of reliability to support its probable accuracy.").
Accordingly, we have held that "the court may base its sentence
on matters outside the presentence report." United States v.
Landry, 903 F.2d 334, 340 (5th Cir. 1990); accord United States
v. Otero, 868 F.2d 1412, 1415 (5th Cir. 1989). Moreover, other
courts have found that testimony from separate proceedings
involving a co-defendant also properly may be considered in
28, United States Code;
(5)
any pertinent policy statement issued by the Sentencing
Commission pursuant to 28 U.S.C. 994(a)(2) that is in
effect on the date the defendant is sentenced;
(6)
the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7)
the need to provide restitution to any victims of the
offense.
7

computing a sentence. See, e.g., Berzon, 941 F.2d at 19; United
States v. Notrangelo, 909 F.2d 363, 365-66 (9th Cir. 1990);
United States v. Romano, 825 F.2d 725, 730 (2d Cir. 1987).
In this case, we are not confronted with, nor do we reach,
the question of whether the procedures involved in a § 3582(c)(2)
resentencing determination must match the procedures in an
initial sentencing determination. In fact, in the instant case
no resentencing took place. Nevertheless, given the broad
discretion the district court has in considering whether
resentencing is appropriate and considering the fact that
Congress has dictated that the factors included in § 3553 apply
both to sentencing and to resentencing, we conclude that in
deciding whether to resentence a prisoner under § 3582(c)(2), a
court may consider the testimony from other proceedings. This
consideration, however, is not unrestrained; a defendant must
have notice that the court is considering the testimony such that
he will have the opportunity to respond to that testimony.
One of the factors § 3553(a) requires a court to consider
when deciding whether to modify a sentence (or when imposing a
sentence) is "any pertinent policy statement issued by the
Sentencing Commission . . . that is in effect on the date the
defendant is sentenced." The policy statement found at U.S.S.G.
§ 6A1.3(a) states that "[w]hen any factor important to the
sentencing determination is reasonably in dispute, the parties
shall be given an adequate opportunity to present information to
the court regarding that factor."
8

Similarly, in the sentencing context, we have stated that
when a court intends to rely on matters beyond those in the
presentencing report, "the district court must provide defense
counsel with an opportunity to address the court on th[ose]
issue[s]." Landry, 903 F.2d at 340; see also United States v.
Otero, 868 F.2d at 1415 (5th Cir. 1989) ("If . . . the court
intends to rely on an[] . . . additional factor to make an upward
adjustment of the sentence, defense counsel must be given an
opportunity to address the court on the issue."). Thus, when a
court relied on the testimony from a different proceeding in
sentencing a defendant, the First Circuit noted, "[a]ll the
sentencing court need to have done . . . was to timely advise
[the defendant] in advance of sentencing that it heard or read,
and was taking into account, that testimony, thus enabling him to
respond to it before the sentence was set." Berzon, 941 F.2d at
21.
Section 3582(c)(2) is silent regarding the right to a
hearing, and in the instant case, we do not reach the question of
whether § 3582(c)(2) requires a hearing. Instead, as courts have
held in the sentencing context, we merely hold that when a court
intends to rely on testimony from a different proceeding in its
resentencing decision, the court must timely advise the defendant
in advance of its decision that it has heard or read and is
taking into account that testimony, such that the defendant has
the opportunity to contest the testimony. See Berzon, 941 F.2d
at 21; United States v. Smith, 13 F.3d 860, 867 (5th Cir.)
9

(noting that it was clearly improper for a sentencing court to
consider information about a defendant contained in the
presentencing report of a different defendant without "at least
giving [the first defendant] the opportunity to see it and
contest its accuracy"), cert. denied, 114 S. Ct. 2151 (1994).
In the instant case, the government stated that "[i]f a
hearing is held . . . the Government would like to be given the
opportunity to put on evidence to demonstrate the amount of
methamphetamine that should be considered." Although no hearing
was held, the government did submit testimony taken from the
hearing of one of Townsend's co-conspirators. In reaching its
decision not to resentence, the district court noted that it
found the testimony "credible and reasonable." While the pro se
movant, Townsend, was served with a copy of the transcript, he
was never notified that the court intended to rely on it in
reaching a decision nor was he told to respond to the testimony.
As Townsend states, he "had no idea that he could o[r] was
allowed to reply or respond to the government's response. The
appellant thought he had done all that he could do under the law,
and he was just going to wait back for a hearing . . . ." We
find that in these circumstances, Townsend did not have an
adequate opportunity to respond to the government's proffered
testimony. He had no notification that he could respond the
testimony, nor any indication that the court intended to consider
the testimony in its § 3582(c)(2) determination.
10

This ruling is not contrary to our recent decision in
Shackleford v. United States, No. 94-50556, (5th Cir. June ,
1995) (unpublished opinion). In that case, we found that the
district court did not abuse its discretion "by denying
Shackleford's § 3582(c)(2) motion on th[o]se particular facts."
Shackleford responded to the government's submission of the
testimony of the chemist. The court need only tell a defendant
that it intends to rely on testimony from another proceeding in
order to alert the defendant to his opportunity to respond to
that testimony. When the defendant has responded to the
submitted testimony, there is, of course, no defect in the
district court's failure to inform that defendant that it intends
to rely on that testimony.
IV. CONCLUSION
For the foregoing reasons, we VACATE the order of the
district court and REMAND this case to the district court for
further proceedings not inconsistent with this opinion.
11