United States Court of Appeals
For the Eighth Circuit
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No. 12-1282
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Antoine Brown
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: December 10, 2012
Filed: December 21, 2012
[Unpublished]
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Before WOLLMAN, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Antoine Brown pleaded guilty to conspiracy to distribute and possession with
intent to distribute cocaine and cocaine base. The district court sentenced him to 292
months in prison. Ten years later, Brown requested a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2). The district court granted his motion and reduced
his sentence to 235 months of imprisonment. Last year, Brown moved for a second
reduction, but this time, the district court1 denied the motion. On appeal, Brown
argues the district court erroneously concluded he is ineligible for a further sentence
reduction because his offense level remained unchanged by the recent retroactive
crack cocaine amendment promulgated by the United States Sentencing Commission.
For the following reasons, we affirm the judgment of the district court.
I
In November 2011, the United States Sentencing Commission promulgated
Amendment 750, which revised the base offense levels in crack cocaine cases. Under
the amended guidelines, a defendant who is held responsible for at least 840 grams
but less than 2.8 kilograms of crack cocaine has a base offense level of 34, and a
defendant who is held responsible for at least 2.8 kilograms but less than 8.4
kilograms of crack cocaine has a base offense level of 36. U.S.S.G. § 2D1.1(c)(2)-
(c)(3).
In denying Brown's motion, the district court found Brown was responsible for
at least 2.8 kilograms of crack cocaine, rendering him ineligible for relief under the
amended guidelines. The Presentence Investigation Report (PSR) prepared in
anticipation of Brown's original sentencing stated Brown was held accountable for
assisting in the distribution of "at least 1.5 kilograms" of crack cocaine. Brown
contends nothing in the PSR indicates he was responsible for at least 2.8 kilograms
of crack cocaine. He therefore argues the district court's factual finding is
inconsistent with the original sentencing record. We disagree.
In connection with the district court's application of the guidelines, we review
the district court's factual findings for clear error and its resolution of legal questions,
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
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including whether it has the authority to modify a sentence under 18 U.S.C.
§ 3582(c)(2), de novo. United States v. Baylor, 556 F.3d 672, 673 (8th Cir. 2009)
(per curiam).
To be sure, we have held courts, when considering 18 U.S.C. § 3582(c)(2)
motions, may not find facts at odds with their previous factual findings. United States
v. Adams, 104 F.3d 1028, 1031 (8th Cir. 1997) ("[T]he district court is to leave all of
its previous factual decisions intact when deciding whether to apply a guideline
retroactively."); see also United States v. Moore, 582 F.3d 641, 646 (6th Cir. 2009);
United States v. Woods, 581 F.3d 531, 538 (7th Cir. 2009). But nothing in § 3582(c)
prevents a district court from making new factual findings, so long as they are
consistent with the original sentencing determination and supported by the record.
United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010); Moore, 582 F.3d at 646
("We do not agree with [the defendant] that the district court's previous determination
of 'more than 1.5 kilograms' means that it cannot also find more than 4.5
kilograms.").2
Here, the district court made exactly such a finding. It was consistent with its
prior quantity determination; finding Brown was responsible for more than 2.8
kilograms of crack cocaine does not contradict the PSR's statement—adopted by the
district court—that Brown assisted in the distribution of "at least 1.5 kilograms" of
crack cocaine. And it was supported by the record. At his plea hearing, Brown
2
The cases on which Brown relies do not support his argument. In Adams, the
district court initially held the defendant accountable for exactly 73 marijuana plants
at sentencing, only to later find him accountable for 110 marijuana plants when
considering his § 3582(c)(2) motion. 104 F.3d at 1030. We reversed because there,
unlike here, the district court made an inconsistent factual finding when considering
the sentence modification motion. Id. at 1031. And in Moore, the Sixth Circuit
reversed because the district court made no drug quantity finding whatsoever before
denying the defendant's sentence reduction motion. 582 F.3d at 646. These factually
inapposite cases therefore offer Brown little help.
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admitted he was a founding member of the "6-0-Tre" gang, which operated for nearly
six years. During the years it operated, the gang received weekly or biweekly
packages of between three and thirteen kilograms of cocaine from California. Brown
further testified he transported the cocaine to the house of Buster Jefferson, another
founding member, where it was cooked into crack cocaine. He also stated he was
personally responsible for distributing some of the crack cocaine. From this
evidence, the district court could readily find Brown was responsible for at least 2.8
kilograms of crack cocaine. It did not clearly err when it did so.
II
Brown's sentencing range was not affected by Amendment 750. The district
court therefore properly denied his § 3582(c)(2) motion. We affirm.
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