NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 15, 2009
Decided January 4, 2010
Before
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 08‐2749
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division. .
v. No. 2:00 CR 105
EDDIE R. NALLS, JR., James T. Moody,
Defendant‐Appellant. Judge.
O R D E R
Eddie Nalls pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a). After
the Sentencing Commission retroactively reduced the offense level for most crack offenses,
Nalls asked the district court to reduce his prison sentence. See 18 U.S.C. § 3582(c). The
court refused on the ground that Nalls had sold more than 4.5 kilograms of crack, and thus
could not benefit from the amendments. Nalls appeals, arguing that the district court
conducted improper factfinding to determine how much crack he had sold. We affirm.
For approximately one year Nalls and several others sold crack for the Bronx Street
Gang in Gary, Indiana. In conjunction with the government’s investigation of this activity,
No. 08‐2749 Page 2
Nalls decided to cooperate by preparing a statement describing the operation and his
involvement. Following Nalls’s guilty plea, the probation officer incorporated this
cooperation statement into Nalls’s presentence investigation report. The PSR described the
operation of three crack houses in Gary, Indiana; each house sold approximately 84, 28, and
672 ounces of crack per month, respectively. According to the PSR, Nalls functioned as an
overseer at two of the houses and worked regular shifts at the third. Based on this
information as well as Nalls’s statements regarding the time he spent at each house, the
probation officer calculated that “[a]t the very least [Nalls] distributed or helped to
distribute 59.53 kilograms of crack cocaine.”
In April 2003 the court conducted Nalls’s sentencing hearing. Nalls declined the
opportunity to challenge the PSR, so the court adopted the factual findings and guidelines
calculations it contained without any further discussion of the exact drug quantity
attributable to Nalls. The court found that Nalls was responsible for selling more than 1.5
kilograms of crack cocaine, and thus he was subject to the highest base offense level under
U.S.S.G. § 2D1.1. After an adjustment to account for cooperation with the government, see
U.S.S.G. § 5K1.1, the court sentenced Nalls to 151 months’ imprisonment.
In November 2007 the Sentencing Commission modified U.S.S.G. § 2D1.1, reducing
the base offense level for most crack offenses by two levels and made that change
retroactive. See U.S.S.G. supp. to app. C, 226‐31, 253 (2009) (Amendments 706 and 713).
When Nalls was sentenced, offenses involving 1.5 kilograms or more of crack cocaine were
assigned the highest possible base offense level of 38. Under the amended guidelines,
however, only offenses involving 4.5 kilograms or more of crack were assigned an offense
level of 38. See U.S.S.G. § 2D1.1(c); United States v. Hall, 582 F.3d 816, 817 (7th Cir. 2009).
Shortly after the amendment was enacted, Nalls asked the district court to reduce his
sentence under 18 U.S.C. § 3582(c), which allows a defendant to seek a sentence reduction if
the sentence was based on a guidelines range that has subsequently been lowered. See
U.S.S.G. § 1B1.10(a)(2)(B) (policy statement); United States v. Lawrence, 535 F.3d 631, 634 (7th
Cir. 2008). The court denied the motion, finding Nalls ineligible for a sentence reduction
because he was responsible for selling more than 4.5 kilograms of crack and therefore
subject to the same total offense level under the amended guidelines.
On appeal Nalls challenges the district court’s conclusion that he was responsible for
distributing more than 4.5 kilograms of crack. He argues that at sentencing he was found to
be responsible for the distribution of only 1.5 kilograms and that the court conducted
impermissible factfinding to hold him responsible for more than 4.5 kilograms. Specifically,
he faults the district court for relying on the cumulative drug quantities in the PSR, which
No. 08‐2749 Page 3
trace back to the three houses where Nalls and other gang members collectively sold crack
cocaine, but do not reflect the quantities Nalls individually sold.
Nalls is correct that a § 3582(c) motion may not be decided by relying on new factual
findings that are inconsistent with those made at the original sentencing, see United States v.
Woods, 581 F.3d 531, 538 (7th Cir. 2009); see also United States v. Armstrong, 347 F.3d 905, 909
(11th Cir. 2003); United States v. Adams, 104 F.3d 1028, 1030‐31 (8th Cir. 1997), but here the
district court considered no such facts. Instead, the court relied on the factual findings in
the very PSR that formed the basis for Nalls’s original sentence. These findings, to which
there were no objections, adequately support a conclusion that Nalls was responsible for
distributing more than 4.5 kilograms of crack cocaine. For more than a year, Nalls and
other gang members ran three crack houses in Gary, Indiana, and through these operations,
Nalls “distributed or helped to distribute 59.53 kilograms of crack cocaine.” Although the
PSR did not specify how much of the 59.53 kilograms Nalls individually sold, the court did
not abuse its discretion—given the substantial quantities described in the PSR and Nalls’s
role as an overseer—in concluding that Nalls’s contribution far exceeded the 4.5 kilogram
threshold. See Woods, 581 F.3d at 533, 539 (denying § 3582(c) motion after finding that
defendants distributed more than 4.5 kilograms of crack cocaine even though PSR did not
attribute specific quantities to each defendant).
Nalls’s attempt to undermine the PSR itself also falls short. He argues that, by
describing drug quantities attributable to the three houses, the PSR does not hold him
individually accountable for all the drug sales described in the PSR.1 But Nalls waived his
right to challenge the factual bases for his sentence by failing to challenge them at
sentencing and by pleading guilty. See, e.g., United States v. Staples, 202 F.3d 992, 995 (7th
Cir. 2000). In any event this argument is also factually erroneous: the PSR states that Nalls
“distributed or helped to distribute”crack in quantities far exceeding the 4.5 kilogram
threshold. That he only “helped to distribute” some of these drugs does not make that
conduct irrelevant to his sentence. See U.S.S.G. § 1B1.3(a)(1); United States v. Coleman, 179
F.3d 1056, 1063 (7th Cir. 1999).
1
Nalls also attempts to undermine the PSR by suggesting that the statements from
the cooperation agreement constitute protected information. See U.S.S.G. § 1B1.8. By
asserting this claim in a footnote and failing to develop it, Nalls has waived it. See United
States v. White, 879 F.2d 1509, 1513 (7th Cir. 1989). Moreover, even if the argument had been
properly developed, it would still be waived because Nalls declined to exercise his
opportunity to challenge the PSR when he was originally sentenced.
No. 08‐2749 Page 4
Finally, we deny counsel’s request at argument that we hold this case in abeyance
pending the Supreme Court’s consideration of United States v. Dillon, 572 F.3d 146 (3d Cir.),
cert. granted No. 09‐6338, 2009 WL 2899562 (2009). The question certified in Dillon was
whether a sentencing court, after determining that a defendant may be resentenced under
§ 3582(c), has discretion to sentence below the amended guidelines range. But Nalls was
not eligible for a reduction under § 3582(c) because he sold more than 4.5 kilograms of
crack. See United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009), and Dillon will not
disturb this conclusion. Because Nalls would have no opportunity to seek a discretionary
sentence below the amended guidelines range, Dillon will not affect this case.
Nalls’s uncontested PSR demonstrates that he was responsible for distributing well
over 4.5 kilograms of crack cocaine, and he is thus ineligible for a reduced sentence under
§ 3582(c). The judgment of the district court is AFFIRMED.