In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-3809 & 08-3811
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EW AYNE H ALL and C ALVIN K EY,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01-CR-98—James T. Moody, Judge.
A RGUED JANUARY 15, 2010—D ECIDED A PRIL 9, 2010
Before W OOD , E VANS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. DeWayne Hall and Calvin Key
appeal the district court’s denial of their motions for
a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
based on the retroactive crack-cocaine amendments to
the Sentencing Guidelines. We reject their arguments
and affirm. The district court was well within its discre-
tion in finding each defendant responsible for distrib-
uting over 4.5 kilograms of crack cocaine, making them
2 Nos. 08-3809 & 08-3811
ineligible for a sentence reduction under the amended
guidelines. The court’s findings were not inconsistent
with its original sentencing findings and were therefore
properly within the scope of a § 3582(c)(2) proceeding.
I. Background
Hall and Key were members of the Concord Affiliated
street gang in Gary, Indiana, and their convictions stem
from an 18-person, 23-count indictment for conspiracy
and distribution of crack cocaine returned by a grand
jury in 2001. In 2002 both defendants entered into plea
agreements with the government. Hall pleaded guilty
to the conspiracy count, 18 U.S.C. § 846, and Key
pleaded guilty to distributing crack cocaine in violation
of 21 U.S.C. § 841. At their sentencing hearings, both
defendants started with a base offense level of 38—the
highest under the applicable guideline—based on stipu-
lations in their plea agreements that they were respon-
sible for more than 1.5 kilograms of crack cocaine. After
various downward adjustments, both defendants were
sentenced at the low end of their resulting guidelines
ranges—135 months for Hall and 188 months for Key.
In 2007 the United States Sentencing Commission
amended the guidelines for crack-cocaine offenses to
ameliorate the disparity between crack- and powder-
cocaine sentences. U.S.S.G. app. C, amend. 706. The
amendment effectively lowered the penalties for most
crack offenses by two levels. Id. The commission made
this reduction retroactive pursuant to 28 U.S.C. § 994(u).
See U.S.S.G. § 1B1.10. The retroactive amendment
Nos. 08-3809 & 08-3811 3
increased the drug-quantity threshold for the top base
offense level for crack offenses from 1.5 kilograms to
4.5 kilograms. Id. § 2D1.1(c)(2). Under the new guide-
line, a defendant responsible for distributing between
1.5 kilograms and 4.5 kilograms of crack cocaine starts
with a base offense level of 36, not 38. That meant that
if Hall and Key were responsible for less than 4.5 kilo-
grams of crack, they would have been entitled to an
additional two-level reduction in their offense level.
In light of this amendment, Hall and Key moved to
reduce their sentences pursuant to § 3582(c)(2), which
permits “a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commis-
sion” to file a motion for a reduced sentence. They
argued that although they had admitted in their plea
agreements that they were responsible for in excess of
1.5 kilograms of crack cocaine—the old threshold for a
base offense level of 38—they never admitted responsi-
bility for the new threshold drug quantity of 4.5 kilograms.
Hall’s original presentence investigation report (“PSR”)
had established that he distributed drugs for the Concord
Affiliated gang from at least 1996 to 2001. The report
also described two crack sales Hall made to a con-
fidential informant in 2000, and a 2001 incident in which
federal agents stopped a car he was driving and confis-
cated a plastic bag containing eight small baggies of
crack cocaine. Moreover, Hall admitted that the Concord
Affiliated gang regularly supplied him with crack
cocaine and that he would sell the drugs from a location
4 Nos. 08-3809 & 08-3811
known as “the hill.” He also admitted to selling crack
cocaine to the confidential informant on the dates men-
tioned in the PSR. Finally, and most importantly for
the present appeal, Hall’s PSR reported that a cocon-
spirator “supplied [Concord Affiliated] with at least 16.91
kilograms of crack cocaine, which was eventually distrib-
uted to addicts through street level [Concord Afilliated]
dealers, like DeWayne Hall.” Accordingly, the PSR con-
cluded Hall conspired to distribute well in excess of 1.5
kilograms of crack cocaine—and indeed far more than
the amended 4.5-kilogram crack-cocaine threshold.
Key’s PSR noted that he was a “major player” in the
Concord Affiliated street gang, sold crack on “the hill”
from 1995 to 2000, and bought drugs on a weekly basis
from another gang member named Seantai Suggs. Key’s
PSR also noted that he had on two occasions sold crack
cocaine to undercover agents. In the section detailing
Key’s acceptance of responsibility, the PSR noted that
Key had admitted selling crack to undercover agents,
albeit on different dates than the two occasions noted in
the report. The PSR totaled the drug quantities from
the various controlled buys and seizures involving Key,
added amounts attributable to relevant conduct, and
concluded that Key was responsible for the distribution
of “at least 17.1 kilograms of crack cocaine.”
Before his sentencing hearing, Key lodged three objec-
tions to his PSR. He objected to the assertion that he was
a “major player” in the gang, that he bought drugs
from Suggs on a weekly basis, and that he was respon-
sible for at least 17.1 kilograms of crack cocaine. At sen-
Nos. 08-3809 & 08-3811 5
tencing, however, Key withdrew these objections after
the court indicated that their resolution would have no
effect on the guidelines range.1 After confirming that
Key personally consented to the withdrawal of these
objections, the court adopted the factual statements of the
PSR “as to which there has been absolutely no objection.”
1
The following colloquy between Key, his attorney, and the
court occurred in relation to Key’s objection to the PSR’s finding
that he was responsible for distributing 17.1 kilograms of crack
cocaine:
THE COURT: And that’s the statement that the defendant
for sentencing purposes is responsible for 17.1 kilograms of
crack cocaine. He’s agreed—I mean, it doesn’t affect the
sentencing guidelines because he’s at a guideline 40 be-
cause he admitted responsibility for 1.5 kilos of crack
cocaine within Paragraph 9G2 of this plea agreement.
[DEFENSE COUNSEL]: I would withdraw that objection
because looking at the plea agreement, the plea agreement
states that the defendant agrees that he is responsible for at
least 1.5 kilograms, which does not exclude more than
that, up to and including 17.1 kilograms. So I would
withdraw that.
THE COURT: Mr. Key, do you hear what your lawyer just
said?
THE DEFENDANT: Yes.
THE COURT: Do you disagree or agree with him?
THE DEFENDANT: Agree.
THE COURT: Okay. All right. Then I will show the defen-
dant’s objection to Paragraph 18 [sic] on page five of the
pre-sentence report is now withdrawn.
6 Nos. 08-3809 & 08-3811
After receiving the § 3582(c)(2) motions, the district
court ordered briefing and requested an addendum
from the United States Probation Office regarding the
application of the retroactive crack amendment to the
defendants’ sentences. The Probation Office reported
that the amendment had no impact on either defendant’s
sentence because they were responsible for more than
4.5 kilograms of crack cocaine. More specifically, the
addendum referred the court to the amounts attributed
to the defendants in their original PSRs: 16.9 kilograms
of crack for Hall and 17.1 kilograms of crack for Key.
In separate rulings the district court denied the defen-
dants’ motions. The court noted that the Probation
Office had concluded in its addendum that Hall and
Key were responsible for distribution of more than
4.5 kilograms of crack and each defendant was therefore
ineligible for a sentence reduction. Referring back to
the defendants’ original sentencing hearings, the judge
noted that he had earlier adopted the PSR’s proposed
factual findings—17.1 kilograms of crack cocaine for
Key and 16.9 kilograms of crack cocaine for Hall—
amounts well above the 4.5-kilogram limit for a sentence
reduction. The judge also rejected Key’s argument that
he had preserved his objection to the 17.1-kilogram drug-
quantity finding in his original sentencing. Both defen-
dants appealed.
II. Discussion
The district court has substantial discretion in adjudi-
cating sentence-reduction motions under § 3582(c)(2), see
Nos. 08-3809 & 08-3811 7
United States v. Young, 555 F.3d 611, 612 (7th Cir. 2009), and
our review is deferential, see United States v. Hall, 582
F.3d 816, 817 (7th Cir. 2009) (“We review the trial
judge’s determination of a § 3582(c)(2) motion . . . for
abuse of discretion.”). Hall and Key argue that the
district court abused its discretion by adopting unsup-
ported factual findings. They acknowledge responsi-
bility for more than 1.5 kilograms of crack but not
more than 4.5 kilograms and argue that finding them
responsible for more than 4.5 kilograms is inconsistent
with the court’s original sentencing findings.
We have previously held that in deciding a sentence-
reduction motion pursuant to § 3582(c), the district court
may not make factual findings that are inconsistent
with those made during the original sentencing. United
States v. Woods, 581 F.3d 531, 538 (7th Cir. 2009). But
nothing prevents the court from making new findings
that are supported by the record and not inconsistent
with the findings made in the original sentencing deter-
mination. Indeed, new findings may be necessary where,
as here, the retroactive amendment to the guidelines
altered the relevant drug-quantity thresholds for deter-
mining the defendant’s base offense level. See Hall, 582
F.3d at 819 (new factual finding as to drug quantity
necessary to determine whether retroactive crack amend-
ment was applicable). Accordingly, in ruling on a
§ 3582(c)(2) motion, the district court may consider the
record as a whole, including any addenda to the PSR.
Woods, 581 F.3d at 538. That’s what the district court did
here, and there is no inconsistency between the court’s
original sentencing findings and its § 3582(c)(2) findings.
8 Nos. 08-3809 & 08-3811
Hall contends that when his original PSR referred to
a drug-quantity total of 16.9 kilograms of crack, it was not
suggesting he was individually responsible for that
quantity. Hall’s PSR reported that a source had “supplied
[Concord Affiliated] with at least 16.91 kilograms of
crack cocaine, which was eventually distributed to
addicts through street level [Concord Affiliated] dealers,
like DeWayne Hall.” True, this statement was imprecise.
But its meaning is inescapable: The drug conspiracy was
responsible for distributing more than 16 kilograms of
crack cocaine, and Hall was responsible for that amount
by virtue of his participation in that conspiracy. He ad-
mitted the gang supplied him with drugs and that he
resold those drugs on “the hill” and at other locations
in Gary for at least six years. Accordingly, under the
rubric of relevant conduct, Hall is responsible for the
drug quantities sold in furtherance of the conspiracy,
which in this case eclipsed 16.9 kilograms of crack
cocaine. See United States v. Easter, 553 F.3d 519, 523 (7th
Cir. 2009) (“In a drug conspiracy, the amount of drugs
attributable to any one codefendant as ‘relevant conduct’
for guidelines purposes is limited to the reasonably
foreseeable transactions in furtherance of that
codefendant’s ‘jointly undertaken criminal activity . . . .’ ”
(quoting U.S.S.G. § 1B1.3(a)(1)(B))). Any doubt about
the court’s 16.9-kilogram finding should have been ex-
tinguished by the addendum to the PSR, which again
concluded that Hall was responsible for that amount.
The district court did not abuse its discretion in denying
Hall’s motion for a sentence reduction under § 3582(c)(2).
We also reject Key’s arguments for a sentence reduc-
tion. Key expends considerable energy—needlessly so—
Nos. 08-3809 & 08-3811 9
in arguing that his objection to the 17.1-kilogram drug-
quantity finding at his original sentencing hearing was
not waived. Key contends that he only withdrew his
objection when the court made clear that it would not
affect his sentence. To withdraw an objection under these
circumstances, Key insists, should not be treated as a
waiver; he claims he had no strategic basis to withdraw
the objection but was simply responding to the court’s
determination that it would make no difference in the
guidelines analysis. But we do not see how this matters.
Regardless of whether Key’s on-the-record withdrawal
of his original objection should be considered a waiver,
nothing prevented the district court from adopting the
PSR’s proposed 17.1-kilogram finding in connection with
the proceedings on Key’s § 3582(c)(2) motion. And the
court did just that. The court based this finding on the
original PSR, which said Key was responsible for the 17.1-
kilogram amount, as well as the addendum to the
PSR, which confirmed that Key was not entitled to the
reduction because the drug quantity attributable to him
exceeded the new 4.5-kilogram threshold under the
amended guideline.
Key also argues that the judge never actually adopted
the 17.1-kilogram figure as a factual finding at his
original sentencing, but this is another red herring.
Key argues that the 17.1-kilogram finding could not
have been adopted because the judge said only that he
was adopting those findings “as to which there was
absolutely no objection.” Because this statement immedi-
ately followed the colloquy about Key’s drug-quantity
objection, Key contends the judge never actually made a
10 Nos. 08-3809 & 08-3811
factual finding that he was responsible for the
17.1 kilograms of crack the PSR attributed to him. Even
if we were inclined to agree, it would not help Key as
much as he would like. Let’s assume the court never
entered an explicit 17.1-kilogram finding at the original
sentencing; the court was required to determine how
much crack cocaine Key was responsible for in order to
adjudicate his § 3582(c)(2) motion. The district court did
so by relying on the figure in the original PSR, which
the Probation Office confirmed in its addendum.
Key bears the burden of showing that the PSR was
based on inaccurate or unreliable information, see United
States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007), and has
done nothing in the § 3582(c)(2) proceeding to call into
question the Probation Office’s calculation of the drug
quantity attributable to him. There are certainly some
circumstances in which ambiguities in the original
PSR may be significant enough that the district court
should not rely on it to deny a § 3582(c)(2) motion. For
example, in Hall—a case involving the same retro-
active crack amendment—we held that the district court
abused its discretion in denying a motion for a sen-
tence reduction based on a crack-cocaine/powder-
cocaine discrepancy in the original PSR. 582 F.3d at 818.
While the total drug quantity at issue in Hall exceeded
the 4.5-kilogram threshold for sentence-reduction eligi-
bility, the original PSR was unclear what proportion of
that total was made up of crack cocaine as opposed
to powder cocaine. Because a “reasonable reading
of the facts could result in a finding that [the defen-
dant’s] conduct involved less than 4.5 kg of crack,” we
Nos. 08-3809 & 08-3811 11
reversed the denial of the defendant’s § 3582(c)(2) mo-
tion. Id.
Here, by contrast, Key has not cast doubt on the
original PSR’s recommendation that he was responsible
for 17.1 kilograms of crack cocaine. It is undisputed that
Key participated in a large-scale crack-cocaine opera-
tion, and he makes no attempt to refute the substantial
evidence arrayed against him: that the FBI recovered crack
cocaine from Concord Affiliated gang members on
25 separate occasions; that he sold crack for the gang on
“the hill” for six years; that a confidential source saw
him buy drugs from Seantai Suggs and that he did so
at least once a week; that his sale of 5 grams of crack to a
confidential informant was captured by video and
audio surveillance; that a confidential informant iden-
tified him as a street-level dealer in the gang; and that he
told Michael Carter, a codefendant, that Bobby Suggs
cooked powder cocaine into crack for him.
Moreover, testimony at the trial of Bobby Suggs, the
leader of Concord Affiliated, indicated that Suggs
received 7 kilograms of powder cocaine from a supplier
and after cooking the powder into crack, gave 6.2 kilo-
grams of crack to street-level dealers, including Key.
Testimony at that trial also established that Anthony
Evans, another member of the conspiracy, obtained at
least 12 kilograms of powder cocaine to be distributed
by Concord Affiliated street dealers, which when pro-
cessed into crack amounts to 10.68 kilograms of crack
cocaine. Based on all this evidence, Key’s PSR concluded
that he was responsible for at least 17.1 kilograms of crack
12 Nos. 08-3809 & 08-3811
cocaine—far above the 4.5-kilogram limit for eligibility
for a sentence reduction. The district court did not abuse
its discretion in denying Key’s § 3582(c)(2) motion.
A FFIRMED.
4-9-10