FILED
NOT FOR PUBLICATION
MAY 31 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30120
Plaintiff-Appellee, D.C. No. 3:98-cr-00208-SI-22
v.
MEMORANDUM *
ADOLPH SPEARS, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted May 17, 2019* *
Portland, Oregon
Before: N. RANDY SMITH and PAUL J. WATFORD, Circuit Judges, and
JAMES V. SELNA,* * * District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. 34(a)(2).
* **
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
1
At the conclusion of a jury trial, Defendant-Appellant Adolph Spears, Sr.
(“Spears”) was convicted of various crimes based on his involvement in a cocaine
trafficking conspiracy. The court sentenced Spears to life imprisonment. Spears
appeals the district court’s denial of his motion to reduce his sentence pursuant to
18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines Amendment 782
(“Amendment 782”).1 The motion was presented to a different judge following the
original sentencing judge’s retirement. This Court has jurisdiction under 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291. We affirm.
Whether a district court has jurisdiction to reduce a sentence under 18
U.S.C. § 3582(c)(2) is reviewed de novo. United States v. Mercado-Moreno, 869
F.3d 942, 953 (9th Cir. 2017). Whether a district court may supplement the
original sentencing court’s drug quantity findings when deciding a § 3582(c)(2)
motion is also reviewed de novo. Id. A district court’s factual findings regarding
drug quantities are reviewed for clear error. Id. at 959.
1. The district court did not err when it made a supplemental finding that
Spears was responsible for approximately 100 kilograms of crack cocaine. “In
those cases where a sentencing court’s quantity finding is ambiguous or incomplete
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Spears brought an earlier motion for a reduced sentence, which the district
court denied and this Court affirmed. United States v. Spears, 824 F.3d 908 (9th
Cir. 2016) (“Spears I”).
2
. . . § 3582(c)(2)’s eligibility inquiry may require a district court to supplement the
original sentencing court’s drug quantity findings.” Mercado-Moreno, 869 F.3d at
954. Both when initially sentenced, and when Spears’s first § 3582(c)(2) motion
was denied, the district court, relying on the presentence report (“PSR”), found that
Spears was responsible for the minimum drug quantity required to support the
sentence it had imposed—1.5 kilograms when he was sentenced, 8.4 kilograms
when he filed his first § 3582(c)(2) motion. However, in each of those instances
the court declined to specify what the total quantity was for which Spears was
responsible, though the PSR (which the district court adopted) indicated that
Spears was responsible for a significantly larger total quantity. Because the district
court never previously stated definitively what total drug quantity Spears was
responsible for distributing, the district court did not err when it found that
supplemental findings were needed in order to determine whether Spears was
responsible for the drug quantity (25.2 kilograms) specified under the current
sentencing guidelines.
2. As noted, the sentencing court adopted the statements in the PSR regarding
drug quantity (excluding those “upon which no finding [was] necessary”) which
ultimately concluded that, based on the evidence, Spears “is accountable for
approximately 100 kilograms of cocaine base” as a “leader/organizer” in the
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criminal conspiracy. The district court based its conclusion on specific findings in
the PSR that: (1) one codefendant purchased cocaine from Spears on 10 to 12
occasions, with the first three transactions involving “kilograms” and the
remaining transactions involving “nine-ounce quantities”; (2) two codefendants
were distributing ten kilograms of crack cocaine per week for Spears during the
fall of 1997; (3) one codefendant estimated purchasing 200 kilograms of cocaine
from Spears; and (4) it was established at trial that the conspiracy converted
“most” of its cocaine to crack cocaine, and that one kilogram of cocaine yielded
slightly more than one kilogram of crack cocaine. See Spears I, 824 F.3d at
914–15.
The district court did not abuse its discretion when it looked to the transcript
of the sentencing hearing and the conclusions in the PSR adopted by the sentencing
court to make its supplemental finding regarding drug quantity. See Mercado-
Moreno, 869 F.3d at 957 (quoting United States v. Valentine, 694 F.3d 655, 670
(6th Cir. 2012)). Moreover, the finding does not contradict any findings made by
the sentencing court, and there is no support for Spears’ contention that the
conclusions in the PSR contradict the trial record. See id. at 955 (“Such findings
must be supported by the record and cannot contradict any findings made by the
original sentencing court.”). Therefore, the district court’s finding that Spears was
4
responsible for approximately 100 kilograms of crack cocaine was not clearly
erroneous, nor did it abuse its discretion when it found that Spears was not entitled
to a reduced sentence.
3. The district court also did not abuse its discretion when it declined to hold an
evidentiary hearing before making its supplemental finding regarding drug
quantity, particularly because it did not consider evidence outside the record. See
Mercado-Moreno, 869 F.3d at 954.
AFFIRMED.
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