UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7785
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRANCE JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:96-cr-00079-BO-1)
Submitted: June 30, 2010 Decided: July 20, 2010
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Clayton R. Kaeiser, CLAYTON R. KAEISER, PA, Miami, Florida, for
Appellant. George E. B. Holding, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torrance Jones appeals from the district court’s order
denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction
of sentence based upon the crack cocaine amendments to the
Sentencing Guidelines. The district court denied the motion,
finding Jones ineligible because his offense involved more than
4.5 kilograms of crack cocaine. On appeal, Jones asserts that,
at sentencing, he was only found responsible for 1.5 kilograms
of crack cocaine, that the district court is barred from holding
him responsible for a larger amount, and that he should,
accordingly, be eligible for a reduction. We affirm.
We review an order granting or denying a § 3582(c)(2)
motion for abuse of discretion. United States v. Munn, 595 F.3d
183, 186 (4th Cir. 2010). A district court abuses its
discretion if it fails or refuses to exercise discretion, or if
it relies on an erroneous factual or legal premise. DIRECTV,
Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008). In a § 3582
proceeding, the district court may only consider the effect of
the retroactive amendment, not any other sentencing or guideline
issues. U.S. Sentencing Guidelines Manual § 1B1.10, p.s.,
comment. (n.2) (2009).
Amendment 706 to the Guidelines lowered the offense
levels for drug offenses involving certain quantities of crack
and is retroactive. See USSG §§ 1B1.10(c), p.s. & 2D1.1(c)
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(2009); USSG App. C Amends. 706, 711, 715. However, the base
offense level for offenses involving 4.5 kilograms or more of
crack is unaffected by Amendment 706. USSG § 2D1.1(c)(1).
Accordingly, if Jones was responsible for more than 4.5
kilograms of crack cocaine, he would not be eligible for a
sentence reduction under Amendment 706, because the Amendment
did not lower his sentencing range. 18 U.S.C. § 3582(c)(2).
While the district court may not make new findings of
drug amounts inconsistent with those made during the original
sentencing, the court is permitted to make new findings that are
supported by the record and not inconsistent with the findings
at the original sentencing. See United States v. Hall, 600 F.3d
872, 876 (7th Cir. 2010). Specifically, “a finding that the
defendants were responsible for at least 4.5 kilograms is not
inconsistent with the conclusion of the original sentencing
court that the defendants were responsible for amounts in excess
of 1.5 kilograms.” United States v. Woods, 581 F.3d 531, 539
(7th Cir. 2009); see also United States v. Moore, 582 F.3d 641,
646 (6th Cir. 2009) (“We do not agree with [the defendant] that
the district court’s previous determination of ‘more than 1.5
kilograms’ means that it cannot also find more than 4.5
kilograms.”).
Thus, although the district court only explicitly
found Jones responsible for 1.5 kilograms of crack cocaine at
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his sentencing hearing, our review of the record convinces us
that the district court did not abuse its discretion by
concluding that, at Jones’ original sentencing, it implicitly
adopted the drug amounts in the presentence report (including
26.3 kilograms of crack cocaine). As such, the district court
properly concluded that Jones was not eligible for a reduction
under the crack cocaine amendments, and we therefore affirm the
district court’s judgment. We deny Jones’ motion for judicial
notice. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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