US v. Hall

• Decision Date: 09 April 2010
• Docket Number: 08-3811.,No. 08-3809,08-3809
• Citation: 600 F.3d 872
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dewayne HALL and Calvin Key, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

600 F.3d 872

UNITED STATES of America, Plaintiff-Appellee, v. Dewayne HALL and Calvin Key, Defendants-Appellants.

Nos. 08-3809, 08-3811.

United States Court of Appeals, Seventh Circuit.

Argued January 15, 2010.

Decided April 9, 2010.

Joshua P. Kolar (argued), Diane L. Berkowitz, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Kerry C. Connor (argued), Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendants-Appellants.

Before WOOD, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

DeWayne Hall and Calvin Key appeal the district court's denial of their motions for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive crack-cocaine amendments to the Sentencing Guidelines. We reject their arguments and affirm. The district court was well within its discretion in finding each defendant responsible for distributing over 4.5 kilograms of crack cocaine, making them ineligible for a sentence reduction under the amended guidelines. The court's findings were not inconsistent with its original sentencing findings and were therefore properly within the scope of a § 3582(c)(2) proceeding.

I. Background

Hall and Key were members of the Concord Affiliated street gang in Gary, Indiana, and their convictions stem from an 18-person, 23-count indictment for conspiracy and distribution of crack cocaine returned by a grand jury in 2001. In 2002 both entered into plea agreements with the government. Hall pleaded guilty to the conspiracy count, 18 U.S.C. § 846, and Key pleaded guilty to distributing crack cocaine in violation of 21 U.S.C. § 841. At their sentencing hearings, both started with a base offense level of 38—the highest under the applicable guideline—based on stipulations in their plea agreements that they were responsible for more than 1.5 kilograms of crack cocaine. After various downward adjustments, both were sentenced at the low end of their resulting guidelines ranges—135 months for Hall and 188 months for Key.

In 2007 the United States Sentencing Commission amended the guidelines for crack-cocaine offenses to ameliorate the disparity between crack- and powder-cocaine sentences. U.S.S.G. app. C, amend. 706. The amendment effectively lowered the penalties for most crack offenses by two levels. Id. The commission made this reduction retroactive pursuant to 28 U.S.C. § 994(u). See U.S.S.G. § 1B1.10. The retroactive amendment increased the drug-quantity threshold for the top base offense level for crack offenses from 1.5 kilograms to 4.5 kilograms. Id. § 2D1.1(c)(2). Under the new guideline, a defendant responsible for distributing between 1.5 kilograms and 4.5 kilograms of crack cocaine starts with a base offense level of 36, not 38. That meant that if Hall and Key were responsible for less than 4.5 kilograms of crack, they would have been entitled to an additional two-level reduction in their offense level.

In light of this amendment, Hall and Key moved to reduce their sentences pursuant to § 3582(c)(2), which permits "a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" to file a motion for a reduced sentence. They argued that although they had admitted in their plea agreements that they were responsible for in excess of 1.5 kilograms of crack cocaine—the old threshold for a base offense level of 38—they never admitted responsibility for the new threshold drug quantity of 4.5 kilograms.

Hall's original presentence investigation report ("PSR") had established that he distributed drugs for the Concord Affiliated gang from at least 1996 to 2001. The report also described two crack sales Hall made to a confidential informant in 2000, and a 2001 incident in which federal agents stopped a car he was driving and confiscated a plastic bag containing eight small baggies of crack cocaine. Moreover, Hall admitted that the Concord Affiliated gang regularly supplied him with crack cocaine and that he would sell the drugs from a location known as "the hill." He also admitted to selling crack cocaine to the confidential informant on the dates mentioned in the PSR. Finally, and most importantly for the present appeal, Hall's PSR reported that a co-conspirator "supplied Concord Affiliated with at least 16.91 kilograms of crack cocaine, which was eventually distributed to addicts through street level Concord Affiliated dealers, like DeWayne Hall." Accordingly, the PSR concluded Hall conspired to distribute well in excess of 1.5 kilograms of crack cocaine—and indeed far more than the amended 4.5-kilogram crack — cocaine threshold.

Key's PSR noted that he was a "major player" in the Concord Affiliated street gang, sold crack on "the hill" from 1995 to 2000, and bought drugs on a weekly basis from another gang member named Seantai Suggs. Key's PSR also noted that he had on two occasions sold crack cocaine to undercover agents. In the section detailing Key's acceptance of responsibility, the PSR noted that Key had admitted selling crack to undercover agents, albeit on different dates than the two occasions noted in the report. The PSR totaled the drug quantities from the various controlled buys and seizures involving Key, added amounts attributable to relevant conduct, and concluded that Key was responsible for the distribution of "at least 17.1 kilograms of crack cocaine."

Before his sentencing hearing, Key lodged three objections to his PSR. He objected to the assertion that he was a "major player" in the gang, that he bought drugs from Suggs on a weekly basis, and that he was responsible for at least 17.1 kilograms of crack cocaine. At sentencing, however, Key withdrew these objections after the court indicated that their resolution would have no effect on the guidelines range.¹ After confirming that Key personally consented to the withdrawal of these objections, the court adopted the factual statements of the PSR "as to which there has been absolutely no objection."

After receiving the § 3582(c)(2) motions, the district court ordered briefing and requested an addendum from the United States Probation Office regarding the application of the retroactive crack amendment to the defendants' sentences. The Probation Office reported that the amendment had no impact on either defendant's sentence because they were responsible for more than 4.5 kilograms of crack cocaine. More specifically, the addendum referred the court to the amounts attributed to the defendants in their original PSRs: 16.9 kilograms of crack for Hall and 17.1 kilograms of crack for Key.

In separate rulings the district court denied the defendants' motions. The court noted that the Probation Office had concluded in its addendum that Hall and Key were responsible for distribution of more than 4.5 kilograms of crack and each defendant was therefore ineligible for a sentence reduction. Referring back to the defendants' original sentencing hearings, the judge noted that he had earlier adopted the PSR's proposed factual findings—17.1 kilograms of crack cocaine for Key and 16.9 kilograms of crack cocaine for Hall — amounts well above the 4.5-kilogram limit for a sentence reduction. The judge also rejected Key's argument that he had preserved his objection to the 17.1-kilogram drug-quantity finding in his original sentencing. Both defendants appealed.

II. Discussion

The district court has substantial discretion in adjudicating sentence-reduction motions under § 3582(c)(2), see United States v. Young, 555 F.3d 611, 612 (7th Cir.2009), and our review is deferential, see United States v. Hall, 582 F.3d 816, 817 (7th Cir.2009) ("We review the trial judge's determination of a § 3582(c)(2) motion . . . for abuse of discretion."). Hall and Key argue that the district court abused its discretion by adopting unsupported factual findings. They acknowledge responsibility for more than 1.5 kilograms of crack but not more than 4.5 kilograms and argue that finding them responsible for more than 4.5 kilograms is inconsistent with the court's original sentencing findings.

We have previously held that in deciding a sentence-reduction motion pursuant to § 3582(c), the district court may not make factual findings that are inconsistent with those made during the original sentencing. United States v. Woods, 581 F.3d 531, 538 (7th Cir.2009). But nothing prevents the court from making new findings that are supported by the record and not inconsistent with the findings made in the original sentencing determination. Indeed, new findings may be necessary where, as here, the retroactive amendment to the guidelines altered the relevant drug-quantity thresholds for determining the defendant's base offense level. See Hall, 582 F.3d at 819 (new factual finding as to drug quantity necessary to determine whether retroactive crack amendment was applicable). Accordingly, in ruling on a § 3582(c)(2) motion, the district court may consider the record as a whole, including any addenda to the PSR. Woods, 581 F.3d at 538. That's what the district court did here, and there is no inconsistency between the court's original sentencing findings and its § 3582(c)(2) findings.

Hall contends that when his original PSR referred to a drug-quantity total of 16.9 kilograms of crack, it was not suggesting he was individually responsible for that quantity. Hall's PSR reported that a source had "supplied Concord Affiliated with at least 16.91 kilograms of crack cocaine, which was eventually distributed to addicts through street level Concord Affiliated dealers, like DeWayne Hall." True, this statement was imprecise. But its meaning is...