[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nov. 18, 2009
No. 08-16617
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 92-04013-CR-4-WS-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMERSON O. DAVIS,
a.k.a. Mercy,
a.k.a. John Calvin,
a.k.a. Dred,
a.k.a. Stanford Robinson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 18, 2009)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
The central issue in this case is whether the district court’s adoption at
sentencing of the facts stated in Appellant Emerson Davis’s Presentence
Investigation Report (PSI) constituted a finding that Davis was responsible for
conduct involving more than 4.5 kilograms of cocaine base. During the
sentencing hearing, the district court only expressly found Davis responsible for
more than 1.5 kilograms of cocaine base. The undisputed facts contained in the
PSI, however, establish Davis was responsible for at least eight kilograms of
cocaine base. After review, we conclude that in adopting the facts in the PSI the
sentencing court found Appellant was responsible for more than 4.5 kilograms,
even though the court did not expressly specify the exact quantity in excess of 1.5
kilograms.
I. BACKGROUND
In 1996, a jury convicted Davis of conspiracy to distribute and to possess
with the intent to distribute cocaine, cocaine base, and marijuana, in violation of
21 U.S.C. §§ 841 and 846. At the time of Davis’s sentencing, a defendant scored
the highest base offense level available, a 38, if the sentencing court found him
responsible for conduct involving more than 1.5 kilograms of cocaine base. See
U.S.S.G. § 2D1.1(c)(1) (1995).
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The district court found all of the drug-related factual findings in the PSI to
be accurate and incorporated them into Davis’s sentence. The uncontested
statements in the PSI reveal Davis was responsible for, inter alia, at least eight
kilograms of cocaine base. At sentencing, Davis asked the district court to specify
the amount of powder cocaine, cocaine base, and marijuana for which he was
responsible. The district court responded Davis’s responsibility for more than 1.5
kilograms of cocaine base caused Davis to score the maximum base offense level
available and, thus, a more specific finding was unnecessary. The district court
stated Davis’s sentence would be based on “the amount of cocaine base or crack
cocaine” for which Davis was responsible. The court further remarked “this whole
operation[ ] all of these people were involved in really dealt with—with crack
cocaine.”
With a base offense level of 38, due to his responsibility for more than 1.5
kilograms of cocaine base, a 4-level enhancement for his role in the offense, and a
2-level enhancement for possession of a firearm, Davis scored a total offense level
of 44. With his criminal history category of IV, his Guidelines range was life in
prison.
In January 2008, Davis moved for a modification of his sentence based on
Amendment 706 of the Sentencing Guidelines, which lowered the base offense
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level for defendants found responsible for certain amounts of cocaine base. See
U.S.S.G. App. C, amends. 706, 711, 713 (Supp. Mar. 3, 2008). The district court
denied the reduction, explaining the PSI showed Davis was responsible for more
cocaine base than permissible to be eligible for the reduction. Davis then filed a
“Motion for Recalculation of Sentencing and Rehearing.” The district court
denied Davis’s motion, reiterating its reasoning. Davis timely filed notice of
appeal.
II. STANDARD OF REVIEW
This Court reviews de novo the district court’s legal conclusions regarding
its own authority under the Sentencing Guidelines, United States v. Jones, 548
F.3d 1366, 1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 1657 (2009), and for
clear error the factual findings underlying a district court’s legal conclusions,
United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). We review for abuse
of discretion a district court’s decision not to reduce a sentence pursuant to 18
U.S.C. § 3582(c)(2). Jones, 548 F.3d at 1368, n.1.
III. DISCUSSION
Amendment 706 to the Sentencing Guidelines, which applies retroactively,
reduces from 38 to 36 the base offense level scored by defendants whose conduct
involved more than 1.5, but fewer than 4.5, kilograms of cocaine base; it does not
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reduce the offense level for those responsible for more than 4.5 kilograms. See
U.S.S.G. App. C, amends. 706, 711, 713 (Supp. Mar. 3, 2008); U.S.S.G. §
2D1.1(c)(1); Jones, 548 F.3d at 1369. When the Guidelines range pursuant to
which a prisoner has been sentenced is subsequently lowered, a prisoner may
move for a reduction in sentence in accordance with that modification. 18 U.S.C.
§ 3582(c)(2).
Davis filed a motion pursuant to section 3582(c)(2) arguing he was eligible
for an Amendment 706 reduction because the district court at sentencing did not
expressly state the quantity above 1.5 kilograms of cocaine base for which he was
responsible. In denying Davis’s motion, the district court reviewed its sentencing
findings, noted it had adopted the factual findings in Davis’s PSI, and determined
in adopting those findings the court had already found Davis responsible for too
much cocaine base to be eligible for an offense-level reduction.
Davis claimed, both in his “Motion for Recalculation of Sentencing and
Rehearing” and on appeal, that the district court’s determination he was
responsible for more than 4.5 kilograms of cocaine base was an impermissible new
finding. In a section 3582(c)(2) resentencing proceeding, the district court must
maintain “all original sentencing determinations” apart from the original
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Guidelines range. United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000)
(emphasis in original).
The district court did not make an impermissible new finding of fact in
Davis’s section 3582(c)(2) proceeding when it stated he was responsible for more
than 4.5 kilograms of cocaine base. The sentencing court was permitted to make
factual findings based on the undisputed statements in the PSI. See Fed. R. Crim.
P. 32(i)(3)(A); United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006).
Davis was deemed to have admitted, for sentencing purposes, the facts in the PSI
he did not object to clearly and specifically at sentencing. See United States v.
Wade, 458 F. 3d 1273, 1277 (11th Cir. 2006); Bennett, 472 F.3d at 833.
By adopting the factual findings in the PSI that were deemed admitted by
Davis when he failed to object to them, the sentencing court found Davis
responsible for over eight kilograms of cocaine base. As the district court had
already found Davis responsible for well over the 4.5 kilograms of cocaine base
currently required to score Davis’s original base offense level of 38, Davis was not
eligible for a sentence reduction under Amendment 706. The court, therefore, did
not err when it denied Davis’s motions for modification and recalculation of his
sentence.
AFFIRMED.
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