United States Court of Appeals

For the Eighth Circuit

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No. 16-1903

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Bruce Charles Tollefson

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of North Dakota - Fargo

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 Submitted: March 6, 2017

Filed: April 6, 2017

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Before BENTON, BEAM, and MURPHY, Circuit Judges.

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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 sentenced him to 227 months imprisonment. 1

The Honorable Ralph R. Erickson, then Chief Judge, United States District 1

Court for the District of North Dakota.
In 2015 Tollefson moved for a sentence reduction based upon amendment 782 to the

sentencing guidelines which reduced base offense levels by two for crimesinvolving

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 ofthe 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

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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 originalsentence had been fromthe bottomend 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

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held that the Sixth Amendment protects the right of a defendant "to proceed without

counsel when he voluntarily and intelligently elects to do so." 

The Supreme Court has since held that its holding in Faretta "was confined to

the right to defend oneself at trial" and that the "Sixth Amendment does not include

any right to appeal." Martinez v. Court of Appeal of Cal., 528 U.S. 152, 154, 160

(2000). The Court based this holding on the fact that the text of the Sixth

Amendment limits its protection to the "preparation for trial and at the trial itself" and

that the right of appeal "is purely a creature of statute." Id. at 160 (internal quotation

marks omitted). This reasoning applies equally to postconviction sentence reduction

proceedings. The Supreme Court has also held that a pro se defendant's Sixth

Amendment rights are not violated by the "unsolicited participation" of standby

counsel "outside the presence of the jury." McKaskle v. Wiggins, 465 U.S. 168, 179

(1984). The district court therefore did not violate Tollefson's Sixth Amendment

rights. 

Tollefson also argues that the district court violated his due process right to be

heard because it appointed the federal public defender to represent him. We review

Tollefson's due process arguments de novo. See Fernandez, 710 F.3d at 849. To

comply with its due process obligations, a district court must provide a defendant

"adequate notice and reasonable opportunity to be heard." Stump v. Bennett, 398

F.2d 111, 114 (8th Cir. 1968) (en banc). The Supreme Court in Martinez held that

defendants do not have a due process right to self representation on direct appeal of

their convictions. 528 U.S. at 160. Similar to the right to proceed pro se, we find no

reason why we should not extend the holding of Martinez to postconviction sentence

reduction proceedings. 

Tollefson argues that the district court also violated his due process right to be

heard because the court waited to rule on his pro se motion for a sentence reduction

until his appointed counsel filed a supplemental motion. A district court is not

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required "to entertain pro se motions filed by a represented party." Abdullah v.

United States, 240 F.3d 683, 686 (8th Cir. 2001). Tollefson was represented at the

time he filed his pro se motion and did not indicate his intent to reject assistance from

the federal public defender's office until after his attorney filed the supplemental

motion. The district court thus did not violate Tollefson's due process rights. 

Tollefson additionally argues that his attorney provided ineffective assistance. 

Because Tollefson had no right to counsel during his postconviction sentence

reduction proceedings, he cannot assert a "valid claimfor ineffective assistance." See

United States v. Edelmann, 458 F.3d 791, 803 (8th Cir. 2006). 

III.

Tollefson next argues that the district court improperly denied his motion for

a sentence reduction. We review de novo a district court's determination of whether

a defendant is "eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2)." 

United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012). A district court's

decision "to reduce a sentence and the extent of any reduction," however, isreviewed

"for an abuse of discretion." United States v. Burrell, 622 F.3d 961, 964 (8th Cir.

2010). 

If theSentencingCommission reduces a defendant's sentencing range, a district

court may reduce the defendant's term of imprisonment "after considering the factors

set forth in [§] 3553(a) . . . if such a reduction is consistent with applicable policy

statements issued by the" Commission. 18 U.S.C. § 3582(c)(2). The district court

must engage in a two part analysis. First, it must determine "'the amended guideline

range that would have been applicable to the defendant' had the relevant amendment

been in effect at the time of the initial sentencing." Dillon v. United States, 560 U.S.

817, 827 (2010) (quoting U.S.S.G. § 1B1.10(b)(1)). The court must then "consider

any applicable § 3553(a) factors and determine whether, in its discretion, the

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reduction authorized by reference to the policies relevant at step one is warranted in

whole or in part under the particular circumstances of the case." Id. 

Tollefson first argues that the district court erred by determining that he was

categorically ineligible for a sentence reduction. The record belies this argument. 

The district court's order stated "Tollefson is eligible for a sentence reduction under

Amendment 782." It also correctly applied step one of the § 3582(c)(2) analysis by

indicating that Tollefson's amended guideline range was 262 to 327 months. It then

denied Tollefson relief under step two after considering the § 3553(a) factors, the

offense conduct, and his "post-sentencing accomplishments." The district court

therefore did not consider Tollefson categorically ineligible for a sentence reduction.

Tollefson also argues that the district court committed procedural error by

failing to consider his postsentencing rehabilitation. "Although a district court may

consider evidence of a defendant's rehabilitation since his prior sentencing, it is not

required to adjust a sentence." United States v. Hernandez-Marfil, 825 F.3d 410, 412

(8thCir. 2016) (per curiam) (emphasisin original)(internal quotation marks omitted). 

The district court did not abuse its discretion here because it acknowledged

Tollefson's postsentencing rehabilitation efforts. See id. at 412–13.

Finally, Tollefson argues that the district court's denial of his motion for a

sentence reduction resulted in the imposition of an increased sentence and that the

district court did not adequately explain this new sentence. Although Tollefson was

eligible for a sentence reduction, "§ 3582(c)(2) does not create a right to it." See

Hernandez-Marfil, 825 F.3d at 412. The district court therefore did not create a new

sentence when it declined to modify his sentence. 

IV.

For these reasons we affirm the district court's order.

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