FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 8, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-1253
v. (D.C. No. 05-CR-00374-EWN-22)
VICTOR VALDEZ, a/k/a Vic, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and HARTZ, Circuit Judges.
In this case, we review the district court’s finding that the defendant, Victor
Valdez, was ineligible to receive a reduced sentence under 18 U.S.C. §
3582(c)(2). For the reasons that follow, we affirm.
B ACKGROUND
In 2005, a grand jury indicted Defendant and twenty-two others on multiple
counts related to a conspiracy to distribute powder and crack cocaine. Defendant
was charged with twenty-one counts but ultimately pled guilty to a single
conspiracy count in exchange for the dismissal of all other charges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
During the plea process, Defendant signed a Plea Agreement and Statement
of Facts Relevant to Sentencing. In addition to outlining the factual basis for the
plea, the agreement noted, “Defendant stipulates pursuant to USSG §
1B1.3(a)(1)(B) that the total foreseeable drug quantity for which he is
accountable is 1.5 kilograms or more of cocaine base.” (R. Vol. 1, Doc. 645 at
16.) At sentencing, the court determined this drug quantity put Defendant’s base
offense level at thirty-eight and concluded Defendant’s criminal history category
was II. After considering a motion by the government under U.S.S.G. § 5K1.1,
the court sentenced Defendant to 202 months’ imprisonment.
In March 2008, Defendant moved to reduce his sentence under 18 U.S.C. §
3582(c)(2), pursuant to Amendment 706 of the sentencing guidelines. After
appointment of counsel, Defendant’s attorney filed an amended motion. The
government responded, contending Defendant was ineligible for a reduction
because, even under the modified guidelines, his offense level remained at thirty-
eight. Specifically, the government argued that Defendant stipulated to conduct
involving more than 4.5 kg of cocaine base, Amendment 706’s threshold quantity.
Because this quantity left Defendant’s offense level unchanged, the court was not
authorized to reduce his sentence under § 3582(c)(2). Defendant countered that
he had accepted responsibility for only 1.5 kg or more of crack and that the court
had made no specific drug quantity finding. Instead, the court made only an
implicit quantity finding of 1.5 kg or more based on the stipulation in the plea
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agreement and the facts in the presentence report.
After a motion hearing on June 27, 2008, the court determined that, when
considered as a whole, the factual basis in the plea agreement and the unobjected-
to presentence report established that Defendant was responsible for more than
4.5 kg of crack, so his offense level remained at thirty-eight. Consequently, the
court denied Defendant’s motion for a sentence reduction:
At the sentencing hearing, the Court . . . adopted, as I said, the
recitations in the presentence report. The defendant stipulated to all
of these. There was no objection to any of this by the defendant.
And what I just read from [the plea agreement] indicated that he
stipulated to relevant conduct of 1.5 kilos or more. When you
consider the plea agreement as a whole, to which there was no
objection and indeed to which there was a stipulation, there is an
astronomical amount of cocaine involved here, significantly in excess
of 4.5 kilos.
(R. Vol. III at 8–9.)
A NALYSIS
We review the scope of a district court’s authority in a resentencing
proceeding under § 3582(c)(2) de novo. United States v. Rhodes, 549 F.3d 833,
837 (10th Cir. 2008); United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.
2008). However, we review a district court’s decision to deny a reduction in
sentence under § 3582(c)(2) for abuse of discretion. Sharkey, 543 F.3d at 1238.
“When a motion for [a] sentence reduction is not a direct appeal or a collateral
attack under 28 U.S.C. § 2255, the viability of [the] motion depends entirely on
18 U.S.C. § 3582(c).” Id. (alterations in original) (internal quotation marks
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omitted).
Amendment 706 authorized a reduction in certain sentences pursuant to §
3582(c)(2). “The Guidelines, through Amendment 706, generally adjust
downward by two levels the base offense level assigned to quantities of crack
cocaine.” Id. at 1237. However, a sentence reduction is only authorized under §
3582(c)(2) if the Amendment has “the effect of lowering the defendant’s
applicable guideline range.” Id. at 1239 (internal quotation marks omitted).
Before his § 3582(c)(2) motion, Defendant’s base offense level was thirty-
eight—predicated upon the district court’s acceptance of Defendant’s plea to a
drug quantity of 1.5 kg or more of crack cocaine. Now, post-Amendment 706, a
defendant must be responsible for 4.5 kg or more of crack cocaine to have a base
offense level of thirty-eight. See U.S.S.G. § 2D1.1(c)(1) (2007).
On appeal, Defendant argues the district court clearly erred by holding him
responsible for 4.5 kg or more of crack where the court originally made no
specific findings regarding drug quantity at sentencing. Instead, the court simply
accepted Defendant’s plea stipulation to a drug quantity of 1.5 kg or more of
crack. The drug quantity was pegged at 1.5 kg because that was the threshold
quantity in the sentencing guidelines at the time. Therefore, the court had no
need to make a separate, explicit quantity calculation. However, at the time of
the § 3582 hearing, the court did need to make a quantity calculation. To do so, it
correctly relied upon its factual findings at sentencing. At sentencing, Defendant
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filed no objections to the facts in the presentence report, which were taken
verbatim from the plea agreement. Consequently, the court adopted the factual
statements in the presentence report as its own findings. It was proper for the
court to rely at the § 3582 hearing on these findings it adopted at sentencing to
calculate a drug quantity.
Defendant also contends that the court’s adoption of the factual basis in the
presentence report is insufficient to support a finding that he was responsible for
4.5 kg of crack because ambiguity in the facts leaves the amount of crack open to
doubt. For instance, Defendant maintains that because it is impossible to
determine the exact form of the drugs in some of the transactions listed, the court
could not unambiguously determine the amount of crack attributable to him. He
also contends that even reading the facts liberally, only 2.7 to 3 kg of crack are
attributable to him—which would result in a base offense level of thirty-six.
However, we conclude the facts adopted by the court are sufficient to support a
finding that Defendant was responsible for 4.5 kg or more of crack. One para-
graph alone explains that during a two-month period, Defendant purchased at
least 10 kg of cocaine from one source and, with the assistance of others, con-
verted about half of it into crack for distribution. Without more, this establishes
Defendant’s responsibility for 4.5 kg or more of crack. But the report also details
many additional transactions by Defendant that clearly involved crack cocaine,
including a series of controlled purchases involving a total of nearly 0.5 kg.
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In conclusion, because the court adopted as its factual findings at
sentencing the statements in the presentence report showing Defendant was
responsible for more than 4.5 kg of crack, the court correctly relied upon the
higher quantity at the § 3582 hearing. Because this higher quantity meets
Amendment 706’s modified drug quantity threshold, the modification does not
alter Defendant’s base offense level of thirty-eight or lower his applicable
guideline range. Consequently, Defendant was not entitled to a reduced sentence
under § 3582(c)(2). See Sharkey, 543 F.3d at 1239.
For the foregoing reasons, we AFFIRM the district court’s denial of
Defendant’s § 3582(c)(2) motion.
Entered for the Court
Monroe G. McKay
Circuit Judge
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