United States v. Gary Wyche

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2013 Decided January 31, 2014

No. 12-3034

UNITED STATES OF AMERICA,
APPELLEE

v.

GARY WYCHE, ALSO KNOWN AS GARY GUNTER, ALSO KNOWN
AS DRAGO,
APPELLANT

Consolidated with 12-3058

Appeals from the United States District Court
for the District of Columbia
(No. 1:89-cr-00036)

Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant Gary Wyche. Jonathan S. Zucker,
appointed by the court, argued the cause for appellant Richard
A. Smith. A.J. Kramer, Federal Public Defender, was on
brief.
Jay Apperson, Assistant United States Attorney, argued
the cause for the appellee. Ronald C. Machen, Jr., United
States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt
 2
and Mary Ann Snow, Assistant United States Attorneys, were
on brief.
Before: HENDERSON and SRINIVASAN, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Opinion concurring in part and dissenting in part filed by
Circuit Judge SRINIVASAN.
KAREN LECRAFT HENDERSON, Circuit Judge: In 1989,
Appellants Gary Wyche (Wyche) and Richard Smith (Smith)
were convicted of drug and firearms offenses for their
participation in a Washington, D.C., drug distribution ring.
The district court sentenced them to life in prison. In 2008,
Wyche and Smith moved for sentence reductions after
amendments to the United States Sentencing Guidelines
(Sentencing Guidelines) lowered the sentencing ranges for
cocaine base crimes. The district court granted Smith’s
motion but did not then rule on Wyche’s motion. Wyche and
Smith subsequently filed resentencing motions in 2011 after
the United States Sentencing Commission (Sentencing
Commission) once again lowered the sentencing ranges for
cocaine base offenses. On May 21, 2012, the district court
denied Smith’s most recent resentencing motion and both of
Wyche’s motions, concluding that neither was eligible for a
sentence reduction under the amended guidelines. We affirm.

I. Background

A. Gary Wyche

In 1989, Wyche was arrested and charged with multiple
narcotics and firearm offenses resulting from his involvement
in a drug conspiracy operating in Washington, D.C. On July
17, 1989, a jury convicted Wyche on six counts of a
 3
twenty-three count indictment1: conspiracy to distribute and to
possess with intent to distribute cocaine and cocaine base in
violation of 21 U.S.C. §§ 841(a), 846 (Count One); conspiracy
to carry and use firearms during and in relation to drug
trafficking offenses in violation of 18 U.S.C. §§ 371, 924(c)
(Count Three); use of juveniles in drug trafficking in violation
of 21 U.S.C. § 845b (1988) (Count Four); assault with a
dangerous weapon in violation of D.C. Code § 22-502 (1981)
(Count Thirteen); use of a firearm in aid of drug trafficking in
violation of 18 U.S.C. § 924(c) (Count Fourteen); and
possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g) (Count Fifteen).

Following trial, the United States Probation Office
prepared a presentence report (PSR) for the district court. The
PSR indicated that the conspiracy began as early as January
1987, with Michael Palmer, Tony Flow and Anthony Watson
selling cocaine base as partners in various Washington, D.C.,
neighborhoods. According to the PSR, which relied on trial
testimony, sometime after December 1, 1987, Wyche acted as
Flow’s right-hand man in the conspiracy and continued to do
so until at least June 1988, when Flow was killed. The PSR
indicated that after Flow’s death, Wyche continued to
participate in the conspiracy through September 1988. 2
Regarding the conspiracy’s distributed drug quantity, the PSR
stated that “testimony indicated the [conspiracy] to be selling
two pounds of cocaine base every two to three days” and
“bringing in approximately one pound of cocaine base every
two or three days.” PSR ¶ 17, United States v. Wyche, Crim.
No. 89-0036-05 (D.D.C. Aug. 21, 1989) (Sealed Appendix

1
Wyche was indicted on eight of the twenty-three counts.
2
The PSR stated that Wyche, Smith and Lamar Harris were
involved in the September 1988 assault of Brenda March, suggesting
that Wyche was still part of the conspiracy.
 4
(SA) 40). “Projecting a conservative estimate from testimony
at trial,” the PSR continued, “the U.S. Attorney’s Office
indicated that the group distributed in excess of 150 kilograms
of cocaine base from January 1987 until July 1988.” Id.

At the original October 18, 1989 sentencing hearing, the
district court found that Wyche was “a principal member of the
. . . conspiracy” and “a major participant in all the activities of
the . . . conspiracy, including the distribution of 100 to 200
kilos of crack in the District of Columbia.” Sentencing Hr’g
Tr. 2-3 (Wyche Sentencing Tr.), United States v. Wyche, Crim.
No. 89-0036-05 (D.D.C. Oct. 18, 1989) (Appendix for
Appellants (AA) Tab 2 at 2-3). “On the basis of the
distribution of crack alone, over 500 grams,” the district court
assigned Wyche the then-highest base offense level of 36, as
500 grams or more of cocaine base triggered that offense level
under the Sentencing Guidelines. Id. at 4 (AA Tab 2 at 4); see
U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.)
§ 2D1.1(a)(3)(tbl.) (1988). The district court added a
three-level enhancement because Wyche played a managerial
role in the conspiracy, a two-level increase for the conspiracy’s
restraint of a victim during the period in which Wyche was
involved and a two-level enhancement for possession of a
firearm by a felon, making the offense level 43. With a total
offense level of 43 and a criminal history category of 5,
Wyche’s guideline range was life imprisonment. The district
court sentenced Wyche to life in prison plus a consecutive
five-year term based on his conviction of unlawful use of a
firearm in aid of drug trafficking. See 18 U.S.C. § 924(c).

Wyche appealed his convictions following sentencing and
we affirmed. United States v. Harris, 959 F.2d 246, 264 (D.C.
Cir. 1992), abrogated on other ground by United States v.
Stewart, 246 F.3d 728 (D.C. Cir. 2001). We did, however,
remand to the district court for resentencing, concluding that
 5
“verification of the correct drug amount” was necessary
because language in Wyche’s PSR indicated that Wyche may
have been responsible for only 250 grams of cocaine base,
which would not have triggered a base offense level of 36. Id.
at 264-65. We also determined that the district court erred by
imposing a two-level increase for possession of a firearm
during a drug conspiracy. Id. at 266-67. We affirmed the
two-level enhancement for the conspiracy’s restraint of a
victim and the three-level enhancement for Wyche’s
managerial role in the conspiracy. Id. at 265-66. With
respect to the district court’s conclusion that Wyche “was a
major participant in all the activities of the . . . conspiracy,
including the distribution of 100 to 200 kilos of crack,” we
concluded that the finding was not clearly erroneous. Id. at
266 (quotation marks omitted).

On remand, the Probation Office prepared a revision of the
original PSR (Revised PSR). The Revised PSR, dated July
15, 1992, stated that Wyche was “Tony Flow’s right hand man,
and that Mr. Wyche had a number of individuals who were
working for him.” Mem. 1 (Revised PSR), United States v.
Wyche, Crim. No. 89-0036-05 (D.D.C. July 15, 1992) (SA 59).
Although the Revised PSR did not indicate precisely when
Wyche joined the conspiracy, it concluded that Wyche actively
participated until September 1988. It also clarified the
original PSR’s drug quantity finding:

[T]estimony at the trial indicate[d] that the organization
received at least two pounds of cocaine base a week
(453.6 grams per pound or 907.2 grams per week) from
January 1987 to September of 1988. Therefore, a
conservative calculation provides that this organization
received at least 70.761 kilograms of cocaine base
during this 78-week time span. As a member of the
conspiracy at this time, the defendant is held
 6
accountable for all of the drugs the organization
received.

Id. at 2 (SA 60). Wyche did not contest the Revised PSR’s
drug quantity calculation3 but instead claimed that he did not
play a managerial role in the conspiracy and that there was no
evidence linking him to the conspiracy before December 1987.

Wyche was resentenced on January 12, 1993. Based on
the evidence at trial, the original sentencing district judge
found that 500 grams or more of cocaine base were attributable
to Wyche. Accordingly, the court assigned Wyche a base
offense level of 36 and again added a three-level enhancement
for Wyche’s role as a manager and a two-level enhancement
for the conspiracy’s restraint of a victim, bringing the total
offense level to 41. An offense level of 41 and a criminal
history category of 5 produced a guideline range of thirty years
to life and the district court again sentenced Wyche to life plus
five years consecutive. Wyche again appealed and we
affirmed the sentence. See United States v. Wyche, No.
93-3003, 1993 WL 478952, at *1 (D.C. Cir. Nov. 12, 1993)
(per curiam).

In November 2007, the Sentencing Commission lowered
various guideline ranges for cocaine base offenses, see
U.S.S.G. suppl. to app. C, amends. 706, 711 (Nov. 1, 2007),
and later made the reductions retroactive. Id. amend. 713
(Nov. 1, 2009). While 500 grams or more of cocaine base had
triggered a base offense level of 36 at Wyche’s 1993
resentencing, see U.S.S.G. § 2D1.1(a)(3)(tbl.) (1988), the 2007
amendment provided that between 500 grams and 1.5
kilograms of cocaine base produced a base offense level of 34,

3
Wyche in fact suggested a base offense level of 36 because the
conspiracy distributed more than 500 grams of cocaine base.
 7
see U.S.S.G. suppl. to app. C, amend. 706 (Nov. 1, 2007);
U.S.S.G. § 2D1.1(c)(3)(2007). In light of the lower guideline
range, Wyche moved pro se for a sentence reduction pursuant
to 18 U.S.C. § 3582(c)(2). Wyche subsequently
supplemented his motion through appointed counsel. Before
the district court ruled on the motion, however, the guideline
ranges for cocaine base offenses were further reduced so that
500 grams of cocaine base now results in a base offense level
of 32. See U.S.S.G. suppl. to app. C, amend. 750 (Nov. 1,
2011) (repromulgating temporary amend. 748); U.S.S.G.
§ 2D1.1(c)(4) (2011). Wyche then moved for resentencing
under the 2011 amendment.

After considering “the motion, the government’s
opposition, the defendant’s reply, the applicable law, and the
entire record herein,” the district court (2012 district court)
found that Wyche was not eligible for a sentence reduction and
denied both of his outstanding motions. Mem. & Order 1,
United States v. Wyche, Crim. No. 89-36-5 (RCL) (D.D.C.
May 21, 2012) (AA 262) (citations omitted). Because the
original sentencing court did not make a specific drug quantity
determination at Wyche’s 1993 resentencing, the 2012 district
court made its own factual finding that Wyche “was
responsible for more than 8.4 kilograms of crack.” Id. at 7
(AA 268). It relied on the original sentencing court’s finding
at Wyche’s 1989 sentencing hearing that “the conspiracy
handled roughly 100 to 200 kilograms of crack,” an estimate
the 2012 district court noted was “in line with the one in
[Wyche’s PSR].” Id. Citing our decision in United States v.
Law, 528 F.3d 888, 906 (D.C. Cir. 2008),4 the 2012 district
4
In Law, the district court sentenced the defendant based on “all
of the crimes reasonably foreseeable within [the] conspiracy,”
including “the entire sum of the drugs within the conspiracy.” 528
F.3d at 906. We found that “the district court did not commit plain
error by relying on the jury’s aggregated drug quantity.” Id.
 8
court then, it appears from the record,5 determined that Wyche
was responsible for the entire drug quantity distributed by the
conspiracy. Mem. & Order 7 (AA 268). Because the
quantity attributable to Wyche exceeded 8.4 kilograms of
cocaine base––the threshold for a base offense level of 38
under the current guideline range––the 2012 district court kept
Wyche’s base offense level of 36 intact, concluding that the
amended guideline range had not lowered it. Accordingly, the
court denied his motions.

B. Richard Smith

Like Wyche, Smith was arrested and charged in 1989 with
multiple drug and firearms offenses for his role in the
conspiracy. On July 17, 1989, a jury convicted Smith on
seven counts of a twenty-three count indictment6: conspiracy
to distribute and to possess with intent to distribute cocaine and
cocaine base in violation of 21 U.S.C. §§ 841(a), 846 (Count
One); conspiracy to carry and use firearms during and in
relation to a drug trafficking offense in violation of 18 U.S.C.
§§ 371, 924(c) (Count Three); use of juveniles in drug
trafficking in violation of 21 U.S.C. § 845(b) (1988) (Count
Four); distribution and possession with intent to distribute fifty
grams or more of a mixture containing cocaine base in
violation of 21 U.S.C. § 841(a),(b)(1)(A)(iii) (1988) (Count
Twenty); use of a firearm in aid of drug trafficking in violation
of 18 U.S.C. § 924(c) (Count Twenty-One); possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g) (Count
Twenty-Two); and unlawful possession of an unregistered
firearm in violation of 26 U.S.C. § 5861(d) (Count
Twenty-Three).

5
See infra at pp. 18-19.
6
Smith was indicted on thirteen of the twenty-three counts.
 9
On October 18, 1989, Smith was sentenced to life plus
thirty years in prison, to be served consecutively. At the
sentencing hearing, the district court found that “Mr. Smith
was an integral part of the [conspiracy] since his release from
jail in June or July of 1988 until January of 1989” and that
“Smith together with Harris and Wyche were . . . principal
lieutenants” of Michael Palmer, who, as noted, was one of the
conspiracy’s ring leaders. Sentencing Hr’g Tr. 2 (Smith
Sentencing Tr.), United States v. Smith, Crim. No. 89-0036-03
(D.D.C. Oct. 18, 1989) (AA Tab 1 at 2). The district court
also concluded that, while it “[did not] know exactly how much
crack was distributed during the period that Mr. Smith was a
participant,” it had “heard about four kilos a month, which is so
much more for the period in which he was a participant than
the 500 grams which are required for the highest level under
the offense computation required by the guidelines.” Id.
Accordingly, it assigned Smith a base offense level of 36, to
which it added a three-level enhancement for Smith’s
managerial role in the conspiracy. With a total offense level
of 39 and a criminal history category of 5, Smith’s guideline
range was thirty years to life. The district court sentenced
Smith to life in prison plus a consecutive thirty-year term for
his conviction on Count Twenty-One. We reversed Smith’s
conviction on Count Twenty-One and affirmed his convictions
on the other counts and his life sentence. See Harris, supra.

On June 5, 2008, Smith moved for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2) after the guideline ranges
for cocaine base crimes were reduced. See U.S.S.G. suppl. to
app. C, amends. 706, 711 (Nov. 1, 2007). The Government
did not oppose Smith’s motion and the Probation Office
recommended a reduction in Smith’s total offense level from
39 to 37, producing a sentencing range of 324-405 months’
imprisonment. On September 18, 2008, the district court
reduced Smith’s total offense level from 39 to 37 and
 10
resentenced him to 405 months’ imprisonment. Although the
one-page order granting the motion did not explain the
reduction, it appears that the court arrived at a total offense
level of 37 by lowering Smith’s base offense level from 36 to
34 but keeping the three-point enhancement. Under the 2007
Sentencing Guidelines, a base offense level of 34 corresponded
to offenses involving between 500 grams and 1.5 kilograms of
cocaine base. See U.S.S.G. § 2D1.1(c)(3) (2007).

On October 17, 2011, Smith moved again for a reduced
sentence after the Sentencing Commission further reduced the
guideline ranges applicable to cocaine base crimes. See
U.S.S.G. suppl. to app. C, amend. 750 (Nov. 1, 2011).
Among other changes, the 2011 amendment provided that
crimes involving at least 280 grams but fewer than 840 grams
of cocaine base corresponded to a base offense level of 32.
Id.; see U.S.S.G. § 2D1.1(c)(4) (2011). Smith claimed that he
was entitled to a new base offense level of 32 because he had
been responsible for only 500 grams of cocaine base.

After considering “the motion, the government’s
opposition, the defendant’s reply, the applicable law, and the
entire record herein,” the 2012 district court found that Smith
was ineligible for a sentence reduction and denied his motion.
Mem. & Order 1, United States v. Smith, Crim. No. 89-36-3
(RCL) (D.D.C. May 21, 2012) (AA 139) (citations omitted).
The 2012 district court first concluded that the original
sentencing court had “determined the defendant to be
responsible for roughly 22 kilograms of crack.” Id. at 7 (AA
145). The 2012 court relied on statements made by the court
at Smith’s 1989 sentencing hearing in concluding that “the
conspiracy handled roughly 4 kilograms a month––an estimate
in line with the [PSR]––and that the defendant was involved in
the conspiracy from between June or July of 1988 until his
arrest on January 9, 1989.” Id. at 6 (AA 144). The 2012
 11
district court again made its own quantity determination,
stating that “[i]t is therefore not inconsistent with [the original
sentencing court’s] factual findings to conclude from the
record that the defendant was responsible for more than 8.4
kilograms of crack.” Id. at 7 (AA 145). Once again citing
Law, the 2012 district court apparently arrived at “more than
8.4 kilograms of crack” by finding Smith responsible for the
entire 22 kilograms of cocaine base distributed by the
conspiracy while Smith was a participant. Id.; see supra note
4. Having found Smith responsible for more cocaine base
than his base offense level of 34 supported, the court denied his
motion.

II. Analysis

Smith and Wyche filed timely appeals and we
consolidated them. Order 1, United States v. Wyche, No.
12-3034 (D.C. Cir. Aug. 23, 2012). We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See In
re Sealed Case, 722 F.3d 361, 364 (D.C. Cir. 2013). We
review the district court’s denial of a section 3582(c)(2) motion
for abuse of discretion. See United States v. Kennedy, 722
F.3d 439, 442 (D.C. Cir. 2013). We review the district court’s
factual findings for clear error. Id. Under the
clearly-erroneous standard, “[i]f the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it.” Anderson v.
Bessemer City, 470 U.S. 564, 573-74 (1985). We may affirm
the district court’s denial of a resentencing motion on any basis
supported by the record. See United States v. Taylor, 627 F.3d
674, 676 (7th Cir. 2010) (appellate court may affirm district
court’s ruling on section 3582(c)(2) motion “on any ground
supported in the record”); United States v. Green, 595 F.3d
432, 436 (2d Cir. 2010) (same); see also Jones v. Bernanke,
 12
557 F.3d 670, 676 (D.C. Cir. 2009) (“[W]e may affirm a
judgment on any ground the record supports . . . .”).

Under 18 U.S.C. § 3582(c)(2), a defendant may move for a
reduction in his term of imprisonment if he was sentenced
“based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). “District courts retain broad authority to control
§ 3582(c)(2) proceedings.” Kennedy, 722 F.3d at 442. A
section 3582(c)(2) proceeding is not a “plenary resentencing
proceeding,” Dillon v. United States, 130 S. Ct. 2683, 2691
(2010), nor is it “a license for the defendant to re-litigate his
sentence wholesale or challenge previously adjudicated
aspects of his conviction,” Kennedy, 722 F.3d at 442; see also
United States v. Adams, 104 F.3d 1028, 1031 (8th Cir. 1997)
(“We think it implicit . . . that the district court is to leave all of
its previous factual decisions intact . . . .”). Instead, a district
court considering a section 3582(c)(2) motion is to engage in a
limited, two-step inquiry. See Dillon, 130 S. Ct. at 2691-92.
The district court must “begin by ‘determin[ing] 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, 130 S. Ct. at 2691
(quoting U.S.S.G. § 1B1.10(b)(1)) (brackets in original). If
the defendant is eligible for a reduced sentence under the
amendment, the court must then “consider any applicable
§ 3553(a) factors and determine whether, in its discretion, the
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. at 2692.

“Under the Sentencing Guidelines, the district court
determines a defendant’s base offense level”––and, ultimately,
his guideline range––“by delineating his ‘relevant conduct.’ ”
United States v. Thomas, 114 F.3d 228, 254 (D.C. Cir. 1997)
 13
(quoting U.S.S.G. § 1B1.3). “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’ . . . .”
United States v. Easter, 553 F.3d 519, 523 (7th Cir. 2009)
(quoting U.S.S.G. § 1B1.3(a)(1)(B)); see also Thomas, 114
F.3d at 254-55. A court may rely “on evidence of a
defendant’s relationship to and involvement with the
conspiracy in order to draw permissible inferences regarding”
the scope of his agreement to the conspiratorial conduct “and
the foreseeability of his co-conspirators’ conduct.” Thomas,
114 F.3d at 260. If the defendant plays a managerial role in a
drug conspiracy, coordinates drug distribution with other
managers of the conspiracy and shares in the conspiracy’s
profits, he may be held responsible for the entire drug quantity
attributable to the conspiracy during the time he was a
participant. See id.; see also Law, 528 F.3d at 906.

At the outset, we address the district court’s authority to
make independent factual findings in a section 3582(c)(2)
resentencing proceeding. In order to determine the
defendant’s amended guideline range for a drug-related
offense, the resentencing court must determine the drug
quantity attributable to the defendant. If the original
sentencing court failed to make a specific drug-quantity
calculation, the resentencing court may have to make its own
quantity finding in order to determine the defendant’s
guideline range. The 2012 district court was confronted with
this scenario, as the original sentencing court found only that
Wyche and Smith were both responsible for at least 500 grams
of cocaine base. While a finding of at least 500 grams of
cocaine base triggered a base offense level of 36 under the
guidelines applied by the original sentencing judge in 1989
(and in Wyche’s 1993 resentencing), see U.S.S.G.
 14
§ 2D1.1(a)(3)(tbl.) (1988), the 2012 district court could not
determine Wyche’s or Smith’s amended guideline range on the
basis of the 1989 and 1993 findings because the 2011
amendment specified four different base offense levels for
crimes involving over 500 grams of cocaine base––level 32 (at
least 280 grams but less than 840 grams), level 34 (at least 840
grams but less than 2.8 kilograms), level 36 (at least 2.8
kilograms but less than 8.4 kilograms) and level 38 (8.4
kilograms or more of cocaine base), see U.S.S.G. suppl. to app.
C, amend. 750 (Nov. 1, 2011); U.S.S.G. § 2D1.1(c)(1)-(4)
(2011).

Given the obvious need for additional fact-finding in cases
like these, we join a number of our sister circuits in concluding
that a resentencing court is permitted to make an independent
drug quantity finding if it cannot determine the defendant’s
amended guideline range without doing so. See United States
v. Moore, 706 F.3d 926, 928-29 (8th Cir. 2013); United States
v. Hamilton, 715 F.3d 328, 340 (11th Cir. 2013); United States
v. Hall, 600 F.3d 872, 876 (7th Cir. 2010). Consistent with
our Kennedy decision, however, the resentencing court’s
quantity finding cannot be inconsistent with factual
determinations made by the original sentencing court. See
722 F.3d at 442 (resentencing proceeding is “not a license for
the defendant to . . . challenge previously adjudicated aspects
of his conviction”); see also Moore, 706 F.3d at 928-29;
Hamilton, 715 F.3d at 340; Hall, 600 F.3d at 876.7

7
While Wyche and Smith do not challenge the 2012 district
court’s authority to make an independent drug quantity finding, we
nonetheless address the issue to provide the district court with
guidance.
 15
A. Gary Wyche

Wyche raises two arguments challenging the district
court’s denial of his resentencing motions. First, he asserts
that, by failing to establish that he was responsible for a
specific amount of cocaine base at his 1993 resentencing, the
Government cannot subsequently contest drug quantity.
Wyche’s second contention is that the district court’s finding
that he was responsible for more than 8.4 kilograms of cocaine
base is without adequate factual or legal support. We address
each argument in turn.

Wyche’s claim that the Government cannot now contest
drug quantity is without merit. Under the Sentencing
Guidelines applied at Wyche’s 1993 resentencing proceeding,
500 grams of cocaine base triggered the highest base offense
level for cocaine base crimes. See U.S.S.G.
§ 2D1.1(a)(3)(tbl.) (1988). Having established that Wyche
was responsible for more than 500 grams, the Government was
not required to prove––and had no reason to argue––that
Wyche was responsible for any amount of cocaine base over
500 grams. Under these circumstances, we believe the
Government is free to challenge drug quantity.8

Wyche’s attack on the 2012 district court’s drug quantity
calculation is similarly unavailing, as Wyche’s Revised PSR
and the trial record support the court’s attribution of more than
8.4 kilograms of cocaine base to Wyche. Wyche’s Revised
PSR stated that the conspiracy “received at least two pounds of

8
Neither the Government nor Appellants Wyche and Smith can
argue that the amount of cocaine base was fewer than 500 grams as
that issue was definitively settled by the original sentencing court in
1989 (Wyche and Smith) and again in 1993 (Wyche). See Kennedy,
722 F.3d at 442.
 16
cocaine base a week (453.6 grams per pound or 907.2 grams
per week) from January 1987 to September of 1988.” Revised
PSR 2 (SA 60). Wyche did not contest this amount when he
was resentenced in 1993 and we are free to use it in assessing
the 2012 district court’s calculation. 9 Cf. United States v.
Pinnick, 47 F.3d 434, 437 (D.C. Cir. 1995) (“[A] sentencing
court may rely on undisputed facts in a presentence report . . .
.”). Although the exact length of Wyche’s participation in the
conspiracy is unclear, the record indicates––and Wyche all but
conceded before the original sentencing court10––that he had
joined the conspiracy by at least late December 1987.
According to the Revised PSR, his involvement lasted until
September 1988. As a conservative estimate, Wyche was
involved in the conspiracy for at least thirty-five weeks from

9
Although the 2012 district court did not expressly rely on the
Revised PSR in calculating the drug quantity, we may affirm that
court’s quantity finding “on any ground supported in the record.”
Taylor, 627 F.3d at 676; see also Green, 595 F.3d at 436 (same).
The fact that the original sentencing court likewise did not adopt the
Revised PSR is not problematic either. See United States v.
Duncan, 639 F.3d 764, 768 (7th Cir. 2011) (resentencing court
entitled to rely on PSR that defendant failed to object to at original
sentencing despite fact that original sentencing court did not adopt
PSR); see also United States v. Hooks, 551 F.3d 1205, 1217 (10th
Cir. 2009) (“If a defendant fails to specifically object to a fact in the
PSR, the fact is deemed admitted by the defendant . . . .”); United
States v. Valentine, 694 F.3d 665, 670 (6th Cir. 2012) (resentencing
court may examine “the trial transcript, the sentencing hearing
transcript, and the portions of the presentence report that the
defendant admitted to or the sentencing court adopted” (emphasis
added)).
10
While Wyche did not concede participation in the conspiracy
itself, he did admit before his 1989 and 1993 sentencing hearings to
selling drugs and working with Tony Flow by late 1987––conduct
the original sentencing court found was part of the conspiracy.
 17
the beginning of January 1988 to early September 1988.
Thus, using the 907.2 gram-per-week figure included in the
Revised PSR, the record reflects that the conspiracy handled
roughly 31 kilograms of cocaine base (thirty-five weeks
multiplied by 907.2 grams per week) during the period in
which Wyche was a participant.

Moreover, the record also supports holding Wyche
responsible for the entire drug quantity handled by the
conspiracy during his undisputed period of involvement. The
original sentencing court found at Wyche’s 1989 sentencing
proceeding that Wyche was a “principal member of the . . .
conspiracy” and a “major participant in all the activities of the .
. . conspiracy, including the distribution of 100 to 200 kilos of
crack,” Wyche Sentencing Tr. 2-3 (AA Tab 2 at 2-3), findings
this Court later affirmed, see Harris, 959 F.2d at 266. In
addition, the original district court’s findings were
corroborated by an abundance of trial testimony indicating that
Wyche separated drugs and counted money for the conspiracy,
collected money from individuals selling drugs, distributed
cocaine for sale and supervised drug sales. Given Wyche’s
extensive involvement, the 31 kilograms of cocaine base were
reasonably foreseeable to him and thus he may be held
responsible for that quantity.11 See United States v. Duncan,
639 F.3d 764, 767-69 (7th Cir. 2011) (rejecting defendant’s
claim that he did not foresee the conspiracy handling over 4.5
kilograms of cocaine base as “[im]plausible” and “baseless”
where conspiracy sold “staggering amount of crack” and

11
Because there was insufficient evidence that Wyche had
joined the conspiracy before December 1987, a fact acknowledged in
Wyche’s original PSR, the Revised PSR mistakenly held Wyche
responsible for the entire quantity of drugs handled by the
conspiracy from January 1987 to September 1988.
 18
defendant had access to “stash-locations” and “high-level
meetings”); Thomas, 114 F.3d at 256-57 (holding defendant
responsible for conspiracy’s entire drug quantity where
defendant played managerial role in the conspiracy,
coordinated drug distribution and shared in conspiracy’s
profits). Accordingly, the 2012 district court did not clearly
err in determining that Wyche’s participation in the conspiracy
made him responsible for over 8.4 kilograms of cocaine base,
triggering the highest base offense level––38––under the 2011
amendment.

In addition, the 2012 district court’s calculation is not
inconsistent with the findings of the original sentencing court.
At Wyche’s 1993 resentencing hearing, the court stated that
“the trial evidence established beyond doubt, and this court
finds, that the defendant and the conspiracy to which he
belonged distributed more than 500 grams of crack cocaine.”
Wyche Sentencing Tr. 12 (AA Tab 3 at 12) (emphasis added).
The 2012 district court’s conclusion that Wyche was
responsible for more than 8.4 kilograms of cocaine base is not
inconsistent with this determination. See United States v.
Woods, 581 F.3d 531, 539 (7th Cir. 2009) (“[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.”).

Under the Sentencing Guidelines in effect in 2012 (and
today), an offense involving a quantity of cocaine base over 8.4
kilograms results in a base offense level of 38. See U.S.S.G.
§ 2D1.1(c)(1) (2011); U.S.S.G. § 2D1.1(c)(1) (2013). With
Wyche’s enhancements, his total offense level under the 2011
amendment would be 43. Because Wyche’s pre-2011
amendment total offense level was 41, his total offense level
and guideline range under the 2011 amendment would in fact
 19
increase, thereby precluding relief under section 3582(c)(2).
See Dillon, 130 S. Ct. at 2691-92. Accordingly, the district
court did not abuse its discretion in denying Wyche’s
resentencing motion.

B. Richard Smith

Smith first contends that the law-of-the-case doctrine
barred the 2012 district court from revisiting the drug
calculation made during his 2008 resentencing. In granting
Smith’s 2008 resentencing motion, the district court lowered
Smith’s total offense level from 39 to 37 and resentenced him
to 405 months’ imprisonment. It appears that the district court
arrived at the reduced sentence by lowering Smith’s base
offense level from 36 to 34, corresponding to 500 grams to 1.5
kilograms of cocaine base under the then-existing guideline
range. See U.S.S.G. § 2D1.1(c)(3) (2007). 12 Smith now
contends that by assigning him a base offense level
corresponding to 500 grams to 1.5 kilograms of cocaine base,
the 2008 resentencing court necessarily found that he was
responsible for 500 grams of cocaine base and no more.
Under Smith’s argument, this “implicit” finding became the
“law of the case” and precluded the 2012 district court from
concluding that he was responsible for more than 8.4 kilograms
of cocaine base.13

12
There is no reason to believe that the 2008 resentencing court
altered the three-level enhancement for Smith’s managerial role in
the conspiracy. Thus, the most likely explanation for the reduction
is that the court lowered Smith’s base offense level.
13
The law-of-the-case doctrine provides that “the same issue
presented a second time in the same case in the same court should
lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393
(D.C. Cir. 1996) (en banc).
 20
The 2012 district court’s failure to credit the 2008
resentencing court’s calculation does not pose a problem.
First, it is uncertain whether Smith may be heard on his
law-of-the-case argument given his failure to raise the issue
before the 2012 district court. See United States v. TDC
Mgmt. Corp., 288 F.3d 421, 425 (D.C. Cir. 2002) (“ ‘It is well
settled that issues and legal theories not asserted at the District
Court level ordinarily will not be heard on appeal.’ ” (quoting
District of Columbia v. Air Fla., 750 F.2d 1077, 1084-85 (D.C.
Cir. 1984) (quotation marks omitted))). Even assuming
arguendo that Smith’s law of the case argument was not
forfeited and that the 2008 resentencing court’s determination
is the law of the case, the 2012 district court’s deviation
therefrom is harmless error. See United States v.
Brinson-Scott, 714 F.3d 616, 622 (D.C. Cir. 2013) (“Error is
harmless if it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”
(quotation marks omitted)). Contrary to Smith’s assertion,
the only conclusion that can be drawn from the 2008
resentencing court’s assignment of a base offense level of 34 is
that Smith was responsible for at least 500 grams and no more
than 1.5 kilograms of cocaine base, the quantity range
corresponding to a base offense level of 34 following the 2007
amendment. See U.S.S.G. § 2D1.1(c)(3) (2007). Thus, to
the extent the 2012 district court was bound, it was bound to
this range. To be eligible for a second sentence reduction,
however, Smith had to demonstrate that he was responsible for
fewer than 840 grams of cocaine base––the dividing line
(under the 2011 and current guideline ranges) between Smith’s
existing base offense level of 34 and a base offense level of 32.
See U.S.S.G. § 2D1.1(c)(3),(4) (2011); U.S.S.G.
§ 2D1.1(c)(3),(4) (2013). In other words, the 2012 district
court was free to attribute between 840 grams and 1.5
kilograms of cocaine base to Smith if such attribution was
consistent with the record. Given its conclusion that Smith
 21
was responsible for over 8.4 kilograms of cocaine base, it is
plain that the 2012 district court would have found Smith
responsible for a disqualifying amount of cocaine base––more
than 840 grams––had it expressly followed the 2008
resentencing court. While we must nonetheless review the
2012 district court’s drug calculation for clear error, its alleged
failure to follow the law of the case is, by itself, harmless. See
Williams v. United States, 503 U.S. 193, 203 (1992) (district
court’s error is harmless if it “[does] not affect the district
court’s selection of the sentence imposed”); cf. United States v.
Thompson, 994 F.2d 864, 868 (D.C. Cir. 1993) (“Because the
judge made it clear he would impose the same sentence under
either criminal history category, it would be futile to remand
for resentencing and we are not required to do so.”).

Smith also argues that, separate from any law-of-the-case
strictures, the 2012 district court erred in determining that he
was responsible for more than 8.4 kilograms of cocaine base.
In particular, Smith argues that “[n]either [the original
sentencing court’s] comment that ‘we heard about’ the
conspiracy distributing 4 kilos a month, [its] finding that Mr.
Smith ‘did distribute more than 500 grams,’ nor the [PSR]
estimate . . . support [sic] the district court’s finding in 2012
that Mr. Smith was accountable for more than 8.4 kilograms.”
Br. for Appellants Richard Smith and Gary Wyche 25, United
States v. Smith, Nos. 12-3034, 12-3058 (D.C. Cir. Oct. 30,
2012).

Contrary to Smith’s assertion, the record amply supports
the 2012 district court’s determination that over 8.4 kilograms
of cocaine base were attributable to Smith. The original
sentencing court found that the conspiracy handled roughly 4
kilograms of cocaine base per month during Smith’s five-plus
months’ participation, which amounts to roughly 22 kilograms
of cocaine base total. Smith did not object to the figure then
 22
and the 2012 district court was entitled to rely on it in making
its drug quantity finding. See Valentine, 694 F.3d at 670
(“[T]he modification court must determine whether a
preponderance of the evidence in the record,” including the
sentencing hearing transcript, “establishes that the defendant is
responsible for the quantity of drugs set forth in the retroactive
amendment.”).

Although the 2012 district court framed its calculation as
“more than 8.4 kilograms,” it is apparent that the court arrived
at this figure by finding Smith responsible for the entire 22
kilograms handled by the conspiracy during the time he was a
participant. See supra note 4. The attribution of 22
kilograms to Smith is supported by the record. The original
sentencing court concluded that Smith was an “integral”
member of the conspiracy, finding “substantial evidence” that
Smith played a managerial role in the enterprise. Smith
Sentencing Tr. 2-3 (AA Tab 1 at 2-3). The findings were
supported by trial testimony from multiple witnesses that
Smith counted and separated drugs received by the conspiracy,
distributed drugs for other individuals to sell, directed others
regarding where to distribute cocaine base and how much to
sell, received and counted money collected by co-conspirators
selling drugs on the street and took charge of the organization
when the conspiracy’s other leaders were absent. Given his
heavy involvement, the 22 kilograms were foreseeable by
Smith. See Duncan, 639 F.3d at 767-69 (finding defendant’s
claims that he did not foresee conspiracy handling over 4.5
kilograms of cocaine base “[im]plausible” and “baseless”
where conspiracy sold “staggering amount of crack” and
defendant had access to “stash-locations” and “high-level
meetings”); Thomas, 114 F.3d at 255-57 (holding defendant
responsible for conspiracy’s entire drug quantity where
defendant played managerial role in conspiracy, coordinated
drug distribution and shared in conspiracy’s profits). Finally,
 23
the 2012 district court’s quantity determination was not
inconsistent with the original sentencing court’s finding. At
the 1989 proceeding, the court found that Smith “did distribute
more than 500 grams of crack during the period when he was a
member.” Smith Sentencing Tr. 2 (AA Tab 1 at 2). The
2012 district court’s conclusion that Smith was responsible for
more than 8.4 kilograms of cocaine base is entirely consistent
with the original sentencing court’s attribution of “more than
500 grams” of cocaine base to Smith. Id. (emphasis added);
see Woods, 581 F.3d at 539.

In sum, Smith is not entitled to a second sentence
reduction because the record manifests that he was responsible
for a disqualifying amount of cocaine base. Even assuming
that the 2012 district court erred in deviating from the
500-gram-to-1.5-kilogram quantity range calculated by the
2008 resentencing court, plainly it could have found, and in
fact did find, Smith responsible for an amount of cocaine base
exceeding the 840-gram threshold. Because the record
reflects that the 2012 district court’s calculation of 8.4
kilograms was not clearly erroneous, a quantity finding greater
than 840 grams of cocaine base is not clearly erroneous either.
And because Smith was not eligible for a second sentence
reduction, the 2012 district court did not abuse its discretion in
denying his motion.

******

For the foregoing reasons, we affirm the district court’s
judgments.
So ordered.
 SRINIVASAN, Circuit Judge, concurring in part and
dissenting in part: I concur in the court’s opinion insofar as it
affirms as to appellant Wyche’s sentence. I respectfully
dissent from Part II.B of the court’s opinion, however, in
which the court affirms as to appellant Smith’s sentence on
harmless-error grounds even though the government has
made no request that we do so.

As the Court explains, a district court’s drug quantity
finding in a sentence modification proceeding under 18
U.S.C. § 3582(c)(2) “cannot be inconsistent with factual
determinations made by the original sentencing court.” Ante,
at 14; accord United States v. Kennedy, 722 F.3d 439, 442
(D.C. Cir. 2013). The same principle necessarily governs in
the context of successive § 3582(c)(2) motions: a district
court’s quantity finding in the later sentence modification
proceeding cannot be inconsistent with factual determinations
made by the court that decided the defendant’s earlier motion.
Here, when the district court modified Smith’s sentence in
2008, the court assigned Smith a base offense level of 34,
which at the time corresponded to offenses involving at least
500 grams but less than 1.5 kilograms of crack. Ante, at 10,
19 & n.12; see U.S.S.G. § 2D.1(c)(3) (2007). But when the
district court in 2012 later denied Smith’s subsequent
§ 3582(c)(2) motion, the court held that Smith’s base offense
level is 38, which now corresponds to offenses involving 8.4
kilograms of crack or more. See U.S.S.G. § 2D1.1(c)(1)
(2011). The 2012 determination that Smith’s base offense
level is 38 cannot be squared with the 2008 determination that
his base offense level is 34. The 2012 district court’s order
therefore should be vacated, and the case should be remanded
so that the district court can recalculate Smith’s base offense
level consistent with the 2008 decision.

The majority understandably does not defend the 2012
court’s disregard of the drug quantity range established by the
2008 court. Instead, the majority affirms the decision on
 2

harmless-error grounds, reasoning as follows. Under the
2011 crack cocaine amendments, the base offense level of 34
now corresponds to at least 840 grams but less than 2.8
kilograms of crack, while the base offense level of 32
corresponds to at least 280 grams but less than 840 grams of
crack. Smith qualifies for a sentence reduction only if his
new base offense level is 32. Even though the 2012 district
court could not attribute more than 1.5 kilograms of crack to
Smith, the court still could have denied Smith’s motion if it
had held him responsible for anywhere between 840 grams
and 1.5 kilograms of crack. And because the 2012 court
concluded that Smith was responsible for more than 8.4
kilograms of crack, the court necessarily would have held him
responsible for at least 840 grams of crack. See ante, at 20-
21.

Significantly, the government did not advance that (or
any) harmless-error argument in its submissions to this court.
And although we have “discretion to determine sua sponte
whether an error is harmless,” United States v. Davis, 596
F.3d 852, 861 (D.C. Cir. 2010), the exercise of that discretion
should be carefully circumscribed, see United States v. Pryce,
938 F.2d 1343, 1348 (D.C. Cir. 1991) (opinion of Williams,
J.). In my view, the harmlessness of the error in this case is
not sufficiently obvious or readily discernible from the record
to warrant a sua sponte harmless-error determination.

The 2012 district court did not consider the implications
of the 2008 district court’s decision to sentence Smith based
on a drug quantity range of 500 grams to 1.5 kilograms. The
majority assumes that, even if the 2012 district court had
considered the 2008 court’s decision, the 2012 court would
still have held Smith responsible for a disqualifying quantity
of drugs. I am not so certain. The judge who granted Smith a
sentence modification in 2008 was intimately familiar with
 3

Smith’s case, having presided over it for nine years and
having issued two previous decisions concerning Smith’s
sentence. That judge and the Probation Office (which
recommended the reduction) both concluded in 2008 that
Smith’s sentence should be modified on the basis of an
offense level corresponding to 500 grams to 1.5 kilograms of
crack. The United States Attorney’s Office, in deciding not to
oppose Smith’s 2008 motion for a sentence reduction,
evidently thought the same. The 2012 district court might
have scrutinized the record to assess why all of those actors
assumed that Smith should be held responsible only for a
limited quantity of crack cocaine rather than for more than 8.4
kilograms. Cf. United States v. Singleton, 759 F.2d 176, 178
(D.C. Cir. 1985) (noting that under law-of-the-case doctrine, a
subsequent court generally “refuse[s] to reopen what has been
decided” in the same case, including “questions decided by
necessary implication” (internal quotation marks omitted)).

The 2012 district court’s failure to consider the
implications of the 2008 court’s decision is especially
significant because the 2012 court’s drug-quantity finding
already rests on an uncertain foundation. In affirming the
2012 district court’s attribution to Smith of over 8.4
kilograms of crack, the majority states that the “[t]he original
sentencing court [in 1989] found that the conspiracy handled
roughly 4 kilograms of cocaine base per month during
Smith’s five-plus months’ participation.” Ante, at 21. And
the 2012 district court, the majority reasons, was “entitled to
rely” on that figure. Id. at 22. If the original sentencing court
had indeed made a four-kilograms-a-month finding, and if the
court had further found that all of the crack distributed by the
conspiracy during those months should be attributed to Smith,
this might well be the sort of case in which a sua sponte
harmless-error inquiry would be appropriate. Cf. United
States v. Stover, 329 F.3d 859, 874 (D.C. Cir. 2003) (per
 4

curiam) (“The District Court must make individualized
findings linking each appellant’s scope of participation in the
conspiracy with the quantum of drugs attributed to him.”
(alterations and internal quotation marks omitted)). But the
1989 sentencing court did not make such a finding. Rather,
the sentencing judge stated: “I don’t know exactly how much
crack was distributed during the period that Mr. Smith was a
participant, but we have heard about 4 kilos a month . . .”
(emphasis added). The judge then explained that, because
four kilograms a month is “so much more” than 500 grams, “I
find that [Smith] did distribute more than 500 grams of crack
during the period when he was a member.”

To be sure, the original sentencing court might have
found Smith responsible for distributing more than 840 grams
if it had been called upon to make such a determination. But
it was not. The court found only that Smith distributed more
than 500 grams, expressly declining to reach any conclusion
concerning the amount of crack distributed by the conspiracy
(and also making no finding about Smith’s own responsibility
for drugs distributed by the conspiracy). The 2012 district
court therefore was mistaken when it said that the 1989 court
had “estimated that the conspiracy handled roughly 4
kilograms a month.” And the 2012 district court otherwise
gave no explanation of the basis for its conclusion that the
drug conspiracy handled more than 8.4 kilograms of crack
while Smith was a member (or, if it did, why Smith should be
held responsible for the full quantity).

In my view, none of the other portions of the record
identified by the majority demonstrate Smith’s responsibility
for 840 grams of crack with sufficient clarity to justify a sua
sponte harmless-error affirmance. While the 1989 sentencing
court found “substantial evidence” that Smith played a
managerial role in the drug enterprise, see ante, at 22, that
 5

does not speak directly to the question of drug quantity. The
trial testimony concerning Smith’s role in the drug
conspiracy, see id. at 22-23, likewise fails to establish Smith’s
responsibility for at least 840 grams of crack. One witness
says she saw Smith counting eight or nine large ziplock bags
containing an unidentified white substance. Another witness
describes a time when her apartment was “like wall-to-wall
cocaine,” but she also suggests that Smith had already left the
apartment by that time. A third witness says that Smith
personally gave him $3,000 worth of crack, and a fourth
witness says that Smith was present while another member of
the drug enterprise counted $26,000 of cash, but neither
witness links the dollar amount with a specific drug quantity.
Our opinions in other cases describe roughly
contemporaneous crack transactions in Washington, D.C., at
prices well over $100 per gram, e.g., United States v. Brown,
16 F.3d 423, 425 (D.C. Cir. 1994); United States v. Beckham,
968 F.2d 47, 53 (D.C. Cir. 1992), so even if Smith could be
held responsible for $3,000 worth of crack (or $26,000 worth
of crack), that would not necessarily demonstrate his
responsibility for 840 grams of crack or more.

None of this is intended to suggest that, if the case were
remanded, the district court would be likely to hold Smith
responsible for less than 840 grams of crack. Indeed, it may
well be that the district court would examine the entire record
and prior course of proceedings—including the 2008 district
court’s decision—and decide to attribute to Smith more than
(perhaps far more than) 840 grams. But I do not consider the
matter sufficiently free from doubt to justify a sua sponte
harmless-error determination. We ordinarily leave it to
district courts in the first instance to scrutinize the record and
make drug quantity findings. And we ordinarily would be
reluctant to canvass the record ourselves to affirm a decision
on harmless-error grounds when the government has made no
 6

argument asking us to do so. Respectfully, I believe the
ordinary course is the appropriate one here.