F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

A D O L P H S P E A

R S , S R ., AKA Pops, D efendant-Appellant. No. 13-30253

D.C. No. 3:98-cr-00208-HA-22

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Ancer L

. Hag g erty , Senior District J udg e, Presiding

Arg ued and Submitted October 13, 2015

Portland, Oreg on

F iled J une 2, 2016

B efore: A. W allace Tashima, Ronald L ee Gilman *

, and Carlos T. B ea, Circuit J udg es.

Opinion by

J udg e B ea; Dissent by

J udg e Tashima

* T h e Ho n orab le Ro n ald L ee Gilm an , Sen io r Circu it J u d g e f or th e U .S. Co urt o f A p peals f o r th e Six th

Circu it, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. S P E A R S 2

SUMMARY * *

Crim inal Law

The panel affirmed the district court’s denial of a motion
to modify a s entence under 18 U.S.C. § 3582(c)(2) o n the b a s i s o f S e n t e n c ing Guidelines Amendment 750, w hich r aise d the q uantity thresholds for c ertain offenses involving crack cocaine.

W h en the d efendant was sentenced to life imprisonment in a conspiracy case in 2001, the max imum base offense level of 38 was trig g ered for a c r ack cocaine offense if the conduct involved at least 1.5 kilog rams of t h e d r u g

. Pursuant to Amendment 750, made retroactive by the Sentencing Commission, the threshold was increased to 8.4 kilog rams.

The panel held that the district court lacked jurisdiction to modify the defendant’s sentence because the a mended Guidelines table would still y ield a Guidelines r ang e of life imprisonment where, at sentencing in 2001, the district court found that 11 kilog rams of powder cocaine, which was to be cooked into crack c o c a ine, was part of the defendant’s relevant conduct.

The panel held that a motion to modify a sentence under § 3582(c)(2) was not a p roper vehicle f o r a r g uing that the district court f

ailed to comply with F ed. R. Crim. P. 32(c) b y not responding to each o f the defendant’s objections to the presentence report at sentencing in 2001.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. S P E A R S 3

The panel held that Guidelines A mendment 782
, which further raised the crack cocaine quantity threshold s, did not provide a basis for r eversing t h e d e nial of the defendant’s motion to modify his s e n tence. Amendment 782 went into effect in November 2014, after the district court’s d enied the defendant’s motion in 2013. The panel stated that the defendant would need to fil e a new motion under § 3582(c)(2) in order to benefit from Amendment 782.

Dissenting

, J udg e T a shima wrote that the district co u rt had jurisdiction to consider the defendant’s mo t i on on the merits because he was sentenced based on a sentencing r ang e that was sub s e q u e ntly lowered by the Sentencing Commission. J udg e T ashima also wrote that even under the majority ’s approach, the sentencing court d i d not make any specific f inding that the defendant’s offense conduct involved
at least 8.4 kilog rams of crack cocaine. J udg e Tashima would

reverse and r emand f

or the district co u r t t o ex ercise its discretion as to whether the defendant’s s entence should be reduced.

COUNSEL

Michael R. L evine (arg ued) and Mat t h e w G. McHenry
, L evine & McHenry L L C, Portland, Oreg on, for Defen d an t

Appellant.

Scott E. B radford (arg

ued), Assistant United States Attorney
, and Kelly A. Z usman, Appellate Chief, United States Attorney ’s Office, Portland, Oreg on, for Plaintiff-Appellee.U N I T E D S T A T E S V

. S P E A R S 4

OP INION

B EA, Circuit J udg e:

This appeal challeng es a district c o u r t ’s denial of a motion to modify a senten c e u n der 18 U .S.C. § 3582(c)(2). Appellant Adolph Spears, Sr. was convicted of v a r i o u s crimes in 2001 based on his involv e m en t i n a cocaine trafficking conspiracy

. The court sentenced him to life imprisonment. I n 2013, Spears f

iled the instant m o tion seeking a reduction o f hi s sentence. His arg ument was based o n an amendment to the U.S. Sentencing Guidelines that increased t h e q uantity thresholds f

or crack cocaine off

e n s es. I n some cases, the amendment would have the effect of y ielding a more lenient
sentence for offense conduct involving a g i v e n quantity o f crack c ocaine. The district court conclude d t h a t it lacked jurisdiction to modify Spears’ sentence because the amended Guidelines table would still y ield a Guidelines rang e of life imprisonment. I t denied Spears’ motion. F o r t h e reasons stated below, we ag ree that the court lacked jurisdiction to modify Spears’ sentence. W e affirm.

I. F ACTUAL AND P ROCEDURAL BACK G ROUND

A. Trial

Spears a nd several co-defendants were charg ed with conspiring to manufacture, distribute, a n d possess with intent
to distribute powder cocaine and crack cocaine, in v iolat i o n of 21 U.S.C. §§ 841(a)(1) and 8 46, and with other c r imes. Count 1 of the eig hth superseding indictment charg ed c ertain of Spears’ co-conspirators with driving loads of pow der

c ocaine f r om California to Portland, Oreg on, where i t w a s manufactured into crack cocaine a nd distribu t e d

. AmongU N I T E D S T A T E S V

. S P E A R S 5

other v ehicles, the co-conspirators alleg e dly used on multiple occasions a Cadillac Eldorado with hidden compartments to
t r a nsport the cocaine. According to the indictment, one o f these trips occurred in November 1 997, when some o f Spears’ co-conspirators arrang ed f o r approx imately 11 kilog rams o f powder cocaine to be driven fr o m Fr esno, California to Portla n d

. Count 1 charg ed Spears with possessing this p a rticular shipment of cocaine jointly with several co-defendants. T he case was tried to a ju ry before J udg e A ncer L

. Hag g erty

. On December 7
, 2 0 00, the jury returned a g uilty verdict o n Count 1, and on other counts not relevant to this appeal.

B. Sentencing

T h e Presentence Report (“PSR”) stated that t h e conspiracy involved transporting multi-kilog ram loads o f powder cocaine from California to the P ortland area. Once the c ocaine a

rrived in Portland, v a

r ious m embers of the conspiracy “cooked” it into crack cocaine. 1 According to the PSR, on e k i l og ram of powder cocaine y ielded a slig htly
g reater q uantity of crack cocaine. The PSR described several
overt acts o f the conspira c y , including transportation of the 11-kilog r am load of powder cocaine in N ovember 1997. The PSR attributed ownership of the 11-kilog ram load to Spears and two other co-conspirators.

I n c alculating Spears’ base offense level, the P SR stated that Spears’ r elevant offense conduct included “more than 1.5 kilog rams of [ crack] cocaine.” This statement reflected the drug quantity table in effect at the time of Spears’ sentencing

.

1 Crack co cain e is a t y

p e o f c o cain e base. P o w d er co cain e is n o t. Kimb ro u g h v. Un ited

S ta tes , 5 5 2 U.S. 8 5, 9 4 (2 0 0 7 ).U N I T E D S T A T E S V

. S P E A R S 6

The table assig ns a base offense level based on the identity and quantity of drug s involved in the o ffense. T he max imum base offense level provided for is level 38. At the time o f Spears’ sentencing

, offense level 38 was trig g ered by 1.5 kilog rams or more of c rack c ocaine. U.S. Sent e n cing Guidelines Manual § 2D1. 1 ( c ) (2000). The PSR added 2 levels because the conspiracy involved dang erous weapons, and it ad d e d 4 levels because Spears acted as a leader in the conspiracy . Thus, the PSR calculated a total offense level of 44.

The PSR calculated a criminal history c ateg o r y o f I V

. Catego r y I V, combined with offense level 44, y ielded a Guidelines “rang e” of life imprisonment.

Spears objected to several portions of the PSR in a letter
to the U.S. Probation Office. As is r e l e v a nt here, Spears objected to the PSR’s determination that his conduct involved

more than 1.5 kilog rams of crack cocaine. According to the letter, “[ t] here is no evidence that Mr. Spears ever possessed

or distributed [ crack] cocaine.” Spears objected to the PSR’s
statement that the 1 1-kilog ram load of powder cocaine in the Cadillac b elong ed to him. He arg ued t h a t h is o ffense level calculation should be based on onl y a particular series o f transactions in w hich Spears boug ht a t otal of 5 to 15 kilog rams of powder cocaine from two other co-conspirators. Spears did not dispute the PSR’s assertion that one kilog ram of powder cocaine y ielded a slig htly g reater quantity of crack cocaine.

J udg e Hag g erty he l d a sentencing hearing on May 7, 2001. Spears’ attorney a

r g ued that Spears was not responsible f o r any quantity of crack cocaine. The attorney arg ued that the trial e vidence did not establish that Spears was involvedU N I T E D S T A T E S V

. S P E A R S 7

in cooking powder cocaine into crack cocaine. F urthermore, he arg ued that Spears was not involved in trafficking cocaine f r o m F resno to Portland, and that Spears had no connect i o n to the 1 1-kilog ram load of powder cocaine in the Cadil l a c

. The court rejected these arg uments. J udg e Hag g erty said “ [ a] s to the o bjections by [ Spe ars’ counsel]

, I think I h ave to resolve all of those a g ainst y o u.” The court found that “overwhelming evidence” supported the assertio n that Spears’ r elev a n t offense conduct in the conspiracy involved “manufactur[ ing ] in ex cess of one and a h alf kilog r ams o f crack cocaine.” Consistent with the PSR, the court calculated

a base offense level of 38. I t also adopted the deadly weapon and leadership enhancements, and criminal h is t o ry categ ory I V. As to C o u n t 1, the court sentenced Spears to life imprisonment.

The court issued a written F inding s of F act order on May 1 4, 2001. The o rder specifically addressed counsel’s objection to the PSR’s ultimate conclusion t hat Spears’ relevant conduct included more than 1. 5 k ilog rams of crack cocaine. The court answered the objection b y stating that “[ t] he court finds that the trial ev idence showed that the defendant had an interest i n the 1 1 k ilos of cocaine that was charg ed in Count 1.” F urthermore, the court also found “that all other u ncontroverted facts contained in the Presentence Report” were “true and accurate. ” F inally

, the court wrote that “[ o] ther than those pa r a graphs previously amended, clarified or adjusted; or upon which no finding is necessary ; the court adopts the presentence report

. . . as its own finding s and conclusions.”

Spears appealed h is c o n viction in an earlier proceeding

. W e affirmed. United State s v

. S p e ars , 60 F

. App’x 671 (9th Cir. 2003).U N I T E D S T A T E S V

. S P E A R S 8

C. Motion to Reduce Sentence

Amendment 750 to the Sentencing G uidelines raised the quantity thresholds for certain o ffenses involving c r a ck cocaine. U.S.S.G. app. C
, amd. 750 (2011). The Sentencing Commission made this a mendment r et r o active in 2011. Id. amd. 7 59. Under the amended d rug quantity table in the 2012 Sentencing Guidelines, the max imum base offense level of 38 is trig g e red for c rack cocaine offenses only if the conduct involves at least 8.4 kilo grams o f the drug

. U.S.S.G. § 2D1.1(c) ( 2012). This represents a sig nificant increase from the 1.5 k ilog ram threshold that a pplied at the time of Spears’ sentencing

. Under the 2012 Guidelines, if the offense conduct involved at least 840 g r ams but less than 2. 8 k i log rams o f crack cocaine, then the base offense level is 34. Id.

I n March 2013, Spears filed a Motion to Reduce Sentence i n l i g h t of the reductions a nd pursuant to a provision of the F air Sentencing A ct, 18 U .S.C. § 3582(c)(2). He arg ued that in 2001 the court did not find that his co n d u c t involved any specific amount of c r ack cocaine g reater than 1.5 kilog r a ms. Under the amended 2012 d rug quantity tabl e , 1.5 kilog rams of crack cocaine would lead to a ba s e offense level of 34. This would lead to a

n a djusted o ffense leve l o f 40, a fter adding 6 levels f

o r S p e a r s ’ leadership r ole a nd the use of a deadly weapon. L evel 40 combined with crim i n al history categ ory I V y ields a Guidelines r a n g e o f 30 y ears to life. Spears requested that his senten c e b e reduced from life imprisonment to 30 y ears.

J udg e Hag g erty denied Spears’ motion for reduction in September 2013. H e concluded tha t the court lacked jurisdiction to modify Spears’ sentence under § 3582(c)(2). Section 3 5 82(c)(2) permits a district court to reduce aU N I T E D S T A T E S V

. S P E A R S 9

sentence “ if such a r eduction is cons i s t e nt with applicable policy state m e nts issued by the Sentencing Commission.” Sentencing Guidelines section 1B 1.10 provid e s that a

se n t e nce r eduction is not authoriz ed under 18 U .S.C. § 3582(c)(2) if “an a mendment

. . . does not have the effect o f lowering the defendant’s applicable g uideline rang e.”

J udg e Hag g erty concluded that Ame n dment 750 did not “have the eff

ect of lowering ” Spears’ applicable Guidelines
rang e

. He wrote that d

uring t h e s e n tencing p roceeding s in 2001, the “court found that 11 kilog r ams of cocaine is part o f defendant’s relevant c onduct, a n d those 11 kilog rams o f

c o c aine would be used to make crack.” Since the 2 0 1 2 amended d

rug quantity table provides for a base offense level of 38 for conduct involving 8.4 kilog rams o r more of crack cocaine, Spears would still be subject to a base offense level of 38, total offense level of 44, and c riminal history categ ory I V. This y i e l d s the same Guidelines “rang e” of life imprisonment.

Spears timely

appealed.

II. STANDARD OF REVIEW

W e review de novo whe t h er a district court has jurisdiction to modify a sentence under 18 U .S.C. § 3582(c)(2). United States v. Leniear
, 574 F .3d 668, 672 (9th Cir. 2009) ( cit i n g United S tates v. Aguirre
, 214 F .3d 1122, 1124 (9th Cir. 2000)).

III. DISCUSSION

Spears a rg ues that the d istrict court erred in holding that it lack e d jurisdiction to modify Spears’ sentence underU N I T E D S T A T E S V

. S P E A R S 10

§ 3582(c)(2). He argues that the court’s finding s in 2001
reg arding drug q

uantity are limite d t o i ts statement a t the sentencing hearing that Spears’ relevant c onduct involved “in

ex c e ss of o n e and a half kilog r ams o f crack cocain e

. ” He
arg ues that the court’s discussion o f the 11-kilog ram Cadillac load in 2001 does n ot preclude a sentence modification under § 3582(c)(2) because the Cadillac con t a i n ed only powder cocaine, rather than crack cocaine.

Nex t, Spears arg ues that the district court violated F ederal Rule of Criminal Procedure 32( c) a t sentencing in 2001 b y not responding to each o f Spears’ objections to the PSR in the court’s F inding s of F act. He arg ues that since the court did
not ex plicitly resolve all of Spears’ objections to the PSR in 2001, the court should not h ave r elied on those findin gs in 2013.

F inally , in a Rule 28(j) letter filed with this court shortly before oral arg ument, Spears arg ues that Amendment 782 to the Sentencing Guidelines requires us to revers e the district court’s denial of the motion and remand f or f urther proceeding s.

W e address each of these arg uments in turn.

A. The distric t court correctly concluded that it lacked jurisdiction to m odif

y Spears’ sentence in 2013.

“As a g e neral mat ter, c ourts may not alter a term o f imprisonment onc e it has been imposed.” United States v

. Hicks

, 472 F .3d 1167, 1169 (9th Cir. 2007). Section 3582(c)(2) creates an e x c e p t ion to this rule b y allowing modification of a term of imprisonment if: (1) the sentence is “based o n a sentencing rang e that has been subsequentlyU N I T E D S T A T E S V

. S P E A R S 11

lowered by the Sentencing Com m i ssion”; and (2) “such a reduction is consiste n t w ith applicable policy statements issued by the Sentencing Commission.”

The primary “applicable policy sta t e ment” is U.S.S.G. § 1B 1.10. United State s v. Pleasant

, 704 F .3d 808, 810 (9th C i r

. 2 013). The policy statement prohibits a sentenc e reduction in cases where th e r elevant amendment “ does not have the effect of lowering the d efendant’s applicable
g uideline r a

ng e.” U.S.S.G. § 1B 1.10(a)(2)(B ). T he p olicy
statement r equires district courts to “determine the amended
gu i d e line rang e that would have been applicable to t h e defendant if the amendment(s) to the g uidelines

. . . had been in effect at the t i m e t h e defendant w as sentenced.” Id. § 1B 1.10(b)(1).

Spears emphasiz es that at the sentencing hearing in 2001 the district c ourt stated that the “conspiracy manufactured in

ex c e ss o f one and a half kilog rams of c r a ck cocaine.” A s a preliminary matter, we consider w hether this statement necessarily means that the sentencing court d i d not make other finding s as to crack cocai n e q u a n tity that could later preclude the applicability of § 3 5 8 2 ( c ) (2). W e hold that it does not.

W e a r e persuaded by United S tates v

. Hernandez

, 645 F .3d 709 (5th Cir. 2 011). I n Hernandez

, a s he re, a sentencing cour t determined that “the quantity of drug s far

ex c e eds the 1 .5 kilog rams needed” to trig g er the max imum offense level threshold. Id. at 7 10. The sentencing court also found t h at “[ b] ased on the most conservative estimate, [ the defendant] is responsible for 32.5 k g of [ crack] cocaine.” Id. Years later, the Sentencing Commission retroactively raised the 1 .5 kilog r am quantity thresh old to 4.5 kilog rams. Id. atU N I T E D S T A T E S V

. S P E A R S 12

711. The defendant filed a motion under 1 8 U .S.C. § 3582(c)(2). I

d. at 711. He arg

ued that “the clearest finding

as to the q

uantit y o f d r ug s attributed to [ him] is ‘ 1.5 kilog rams’ of crack cocaine.” The § 3582 court rejected this
argu m en t and denied the motion b ased on the sentencing court’s “ conservative estimate” of 32.5 kilog rams, a quantity which still trig g e red the m ax imum offense level under the amended Guidelines. Id. The F ifth Circuit ag reed that it was permissible to deny the moti on based on the 32.5 kilog ram fig ure and affirmed the district c o u r t. Id. at 712. See also United S tates v

. Battle

, 706 F .3d 1313, 1319 (10th Cir. 2 013) (“[ A] district court’s prior attribution of ‘at least’ 1.5 kilog rams of crack (or similar lang uag e) to a defendant does
not b ind that court to a finding of ex actly 1. 5 kilog rams in a subsequent § 3582(c)(2) proceeding .”).

Spears arg ues in this c a se that t h e court’s reference in 2001 to 1.5 kilog rams is the only clear f i nding as to d

rug quantity and that the record is “ambig uous at best” as to other quantity finding s. We disag ree. As ex plained b elow, it is clear from the sentencing record that the court attributed at least 11 kilog rams of crack cocaine to Spears b a sed on the Cadillac load.

Spears’ position at the sentencing hearing was that he was not responsible for any q

u antity of crack cocaine. He denied

a ny involvement with c ooking powder cocaine into cr a c k cocaine, a n d h e denied any involvement with the Cadillac load. Spears ’ p o s i t ion was contrary to the PSR. I t was also contrary to Coun t 1 o f the indictment, on which he was

con v i c t e d and which charg ed that he was involved in a

c o n spiracy to traffic powder cocaine from California t o Oreg on for processing int o cr ack cocaine. Spears asked the
court to sentence him b ased only o n a series of transactionsU N I T E D S T A T E S V

. S P E A R S 13

in w hich he sold 5 to 15 k ilog rams of powder cocaine to two of his co-conspirators. 2 F ollowing this approach would have required the district court to reject the PSR’s finding that his offense conduct involve d m o re than 1.5 kilog rams of crack cocaine.

The court recog niz ed that Spears c o u l d not avoid responsibility f

or at least 1.5 kilog r ams o f crack cocaine if he

were involved w i t h t he Cadillac load. I t made the following statement to Spears’ counsel at the sentencing hearing :

THE COURT: With respect to the one-and-ahalf kilos o f cr a c k

, y our arg ument is based solely o n the premise that Mr. Spears should
not be associated with the 11 kilos of cocaine sei z e d from the Cadillac, because if he’s associated with those 11 kilos, then, in fact

, he’s associated with that conspiracy

. And
t h e r e ’ s s u b s t a n t i a l e v i d e n ce t h a t t h at conspi r acy eng ag ed in the manufacturing o f crack cocaine from p owder cocaine, is that correct?

Spears’ counsel answered affirmatively

. He said, “So, I think
y es. I n order to establish that Mr. Spears was involved in 1.5 kilog rams of crack cocaine, y o u have to fi n d

, by a preponderance of the evidence, that he h ad a n interest in that Cadillac l o ad of c o c a ine.” T h is ex chang e w ould be nonsensical if the conspiracy did not involve cooking the 11 kilog rams of powder cocaine into crack cocaine.

2 P o w d er co cain e is t

reated d if f eren tly – an d less h arsh ly

– un der th e Sen ten cin g Gu i d elin e s. S ee Dillo n v. U

n ited S ta tes , 5 6 0 U.S. 8 1 7
, 8 2 1 (2 0 1 0).U N I T E D S T A T E S V

. S P E A R S 14

I n t he F inding s of F act o r der, the court r evisited Spears ’ objection to the PSR’s conclusion that he was responsible for more than 1.5 kilog rams of crack cocaine. I n a one-sentence response to this objection, the order stated “[ t] he court finds that the trial evidence showed that the defendant had an interest in the 11 kilos of cocaine that was charg ed in Count 1.” Spears now emphasiz es the fact that the order did not state that the 1 1 kilog rams w ould be cooked into crack cocaine. However, here too it would be n onsensical to conc l u d e that the sentencing court found ot h e r w ise. I f the 11 kilog rams

were n ot to be cooked into crack, then Spears’ responsibility for the powder cocaine in the Cadillac would not have provided any basis for rejecting Spears’ challeng e to the PSR’s 1.5 k ilog ram c rack c o c a ine finding

. F urthermore, it is inex plicable why th e c ourt would have made any finding involving powder cocaine if the cocaine was not to be cooked into crack. After all, Spears was sentenced based o n the d rug quantity thresholds for crack cocaine on l y , not powder cocaine. Powder cocaine w ould be irrele v a nt to the court’s calculation of Spears’ offense level unless it was g o ing to be cooked into crack cocaine. W e decline to rein t erpret the F inding s o f F act order in a way that w ould make its finding s irrelevant to Spears’ sentencing

.

No t w i thstanding the foreg oing

, Spears arg ues that two opinions from our sis t e r circuits require us to reverse the court’s denial and remand f or further proceeding s. W e are not persuaded.

F irst Spears points to United States v. Hamilton

, 715 F .3d 328 (11th Cir. 2013). I n H amilton

, a defendant twice moved for a sentence modific a t ion b ased on the lowered offense levels for crack cocaine offenses. T h e d i s t r ict court denied both motions. Id. a t 336. I n deny ing them, the district courtU N I T E D S T A T E S V

. S P E A R S 15

relied on responsive memoranda filed by the Probation Office and by t he g overnment. Id. at 335–36. These memoranda contained factual inaccuracies a b out the defendant’s orig inal sentencing

. They stated that the initial PSR found that the defendant was responsible for at least 12 kilog rams of crack cocaine. Id. a t 336. T h e m emoranda failed to account for an addendum to the o ri g i n al PSR, which made it less clear whether the d e fendant was responsible for 12 kilog rams. Id

. at 335. Since the memoranda were factually inaccu r a t e , a nd the distri c t c o u rt relied on those memoranda in deny ing the motions, the E leventh Circuit remanded with instructions to “determine what drug quantity finding s [ the sentencing court] made, either ex plicitly o r implicit l y , at Hamilton’s orig inal sentencing hearing .” I

d

. at 3 40. Hamilton is inapposite to this appeal because the district court h e r e did not rely on f actual inaccuracies when it denied Spears’ motion.

Spears also points to United States v

. Hall

, 582 F .3d 816 (7th Cir. 2009). I n Hall

, a defendant p l e a ded g uilty to a conspiracy to possess with intent to distribute over 50 g rams

o f c r a ck cocaine and more than 5 kilog rams of a mix t u r e containing cocaine. Id. at 817. He acknow ledg ed in a plea
ag r e e m e n t that the conspiracy involved more than 1.5 kilog rams of crack cocaine. After ame n d m ents to the G u i d e lines, the defendant soug ht a sentence modification under 1 8 U.S

. C

. § 3 5 82(c)(2). I d

. at 818. The district court denied the motion because, after reviewing the admissions in the p lea ag reement, it concluded t hat the defendant was

r e s p o nsible for crack cocaine totaling “23 to 43 kilog ram s , ” which meant that he would not receive a lower sentencing
rang e under the amended Guidelines. Id. The Seventh Circuit remanded because the admission the d istrict court relied on stated that “defendant so l d 1 to 2 kilog rams of powder and crack cocaine every month” f or a two-y ear period. Id

.U N I T E D S T A T E S V

. S P E A R S 16

(emphasis added). Thus, the key admission in the defendant’s plea ag reement was imprecise as to the amount of crack cocaine involved in th e c o n spiracy

. “[ T] he district court ig nored an a mbig uity in the facts and misapprehend e d the content of Hall' s plea admissions.” Id

.

Hall

, like Hamilton

, is inapposite here. The district court in this case did n o t misapprehend the record when it denied Sp e a r s’ motion. I t was correct in finding that the sentencing court attributed the Cadillac load to Spears.

I n sum, the sentencing record makes it clear that the court attributed to Spears 11 kilog rams of powder cocaine that were to be cooked into crack cocaine. The sentenc i n g court also adopted t h e P S R ’ s u ncontroverted a ssertion that one kilog ram of powder cocaine y ielded a slig htly g reater quantity of crack cocaine. This combination of facts suppor t s the conclusion that Spears had an interest in crack c ocaine weig hing at least 11 kilog rams.

The dissent disputes this c onclusion on the g round t hat the PSR stated at o ne p o int that the cons p i r a c y converted “most” of its powder cocaine into crack cocaine. (Dissenting Op. 23–24.) This statement, according to the d i ssent, undermines the conclusion that all 1 1 k ilog rams of powder cocaine in t he Cadillac were in fact cooked into crack, with the result that there e x ists no assurance that S p e a rs was responsible for such an amount of crack cocaine. See id.

B u t the state m e n t to which the dissent refers was a statement about the conspir a c y in g eneral. As described b y the PSR, the entire conspiracy involved y ears of cocaine trafficking orchestrated by doz e ns of co-conspirators. The conspiracy

, as a whole, “conve r ted most of its powderU N I T E D S T A T E S V

. S P E A R S 17

cocaine into ‘crack.’” This statement from the PSR does not address the specific, 11-kilog ram l o a d o f powder cocaine in the Cadillac.

And with respect to that particular load, Spears’ attorney conceded after trial th a t if the court found “that Mr. Spears had an interest in the cocaine that w as in the Cadillac, then it would be—certainly

, [the court] could conclude that that cocaine was t h e n b e ing delivered to one of the houses

. . . where it w as cooked into crack cocaine.” The evidence before the sentencing c ourt according ly established that all 11 kilog rams of powde r c ocaine in the Cadillac were in fact “cooked into crack,” without any qualification about “most” of the amount being converted.

As a result, the district cour t was correct to find that Spears was responsible for more than 8.4 kilog rams of crack cocaine. Spears’ applicable Guidelines rang e under the drug quantity table, as modi f i ed by Amendment 750, would therefore b e the same as the Guidelines ra n ge b ef ore the amendment. This means that Amendment 750 did not “have the effect of lowering the defend a nt’s applicable g u ideline
rang e .” U.S.S.G. § 1B 1.10(a)(2)(B )

. M o d ify ing Spears’
sentence under these circumstances would not be “ consistent with applicable policy statements issued by the Sentencing Comm i ssion.” 18 U .S.C. § 3582(c)(2). I t follows that the district c ourt did not have jurisdiction under § 3 5 82 ( c)(2) to modify Spears’ sentence.

B. The district court did not err w hen it relied on factual f indings f rom the 2001 sentencing hearing.

Spears arg ues that th e court violated F ederal Rule o f Criminal Procedure 32(c) at se n t e n cing in 2001 by notU N I T E D S T A T E S V

. S P E A R S 18

r e s p o nding to each of Spears’ objections to the PSR in th e court’s Statement of Reasons.

A t the time of Spears’ sentencing

, Rule 32(c) p rov i d e d that a senten c i n g court “must rule on any unresolved objections to the presentence report,” a nd “must make either

a finding on the alleg a tion or a determination that n o finding is nec e s sary ” for “each matter controverted.” See United States v

. Carter , 219 F

. 3d 863, 866 (9th Cir. 2000)). 3 Spears cites authority for the proposit i o n t h at Rule 32(c) requires “strict c ompliance” from se ntencing courts. U nited States v

. Doe
, 7 05 F

. 3d 1134, 1153 (9th Cir. 2013) (referencing Rule 32(i)(3)(B )). He arg ues that because “[ t] he court’s finding s at the orig inal sentencing w ere insufficient to c o m p o rt with Rule 32,

. . . a ny reliance on them here is misplaced.” He relies on the sentencing court’s Statement of Reason s , which did not

ex p licitly state that the 1 1 kilog rams in the Cadillac would be cooked into crack cocaine.

Spears’ arg ument is essentially that the 2001 c ourt did not adequately address Spears’ specific PSR objections p oint-by

point at the hearing or in the Statement of Reasons. This
arg ument fails because a motion to modify a sentence under 18 U.S.C. § 3582(c)(2) is an improper vehic l e t o a t tack a sentence for non-compliance with th e Rules of Criminal Procedure. “ Section 3582(c)(2)’s tex t, tog ether w ith its

3 Ru le 3 2 (c) h as b een am en d ed

. In i ts cu rren t f o rm , R u le 3 2 (c) d o es n o t

su p p o rt Sp ears’ arg u

m en t. H o w ev er, cu rren t Ru le 3 2 (i)(3 )(B ) is clo sely

an alo g o u s to th e o ld Ru l e 32 (c). It pro v id es t h at “ [a]t sen ten cin g , th e co urt

m u st—f o r an y d isp u ted po rtio n o f th e p resen ten ce rep o rt o r o th er

co n tro v erted m atter—ru le o n th e d i s p u t e o r d eterm in e th at a ru lin g is

u n n e cessary eith er b ecau se th e m atter w ill n o t af f ect sen ten cin g , o r b ecau se th e co urt w ill n o t co n sid er th e m atter in sen ten cin g

. . . .” F E D

. R. C RI M

. P. 3 2 (i)(3 )(B ) (2 01 4 ).U N I T E D S T A T E S V

. S P E A R S 19

narrow scope, shows that Cong ress intended to authoriz e only

a limited adjustment to an otherwise final sentence and n o t a plenary resentencing proceeding .” Dillon v

. United Stat es , 560 U.S. 817, 826 (2010); se e also U nited States v. W

aters , 648 F .3d 1114, 1118 (9th C i r. 2011) ( “[ A] court’s authority in a sentence-reduction p roceeding is strictly limited to shortening the leng th of a p rison term and does not ex tend to collateral matters unrelated to the Guidelines c hang e.”) (quoting U

nited States v. Du n n , 6 31 F .3d 1291, 1293 (D.C. C i r

. 2 011)). Spears c ites no authority for his c ontr a r y assertion that the 2 013 court s h ould have ig nored f actual findings in the 2001 sentencing proceeding b e cause o f a possible Rule 32 violation. According ly

, it was proper f or the district court to rely

on those finding s.

C. Am e ndm ent 782 does not provide a basis f or reversing the court’s denial of

Spears’ m otion.

Shortly before oral arg ument in this case, Spears filed a Rule 28(j) letter with this c o u rt aski n g u s to reverse a nd remand the court’s denial in lig ht o f Amendment 782 to the Se n tencing G uidelines. Amendment 7 82 further r aised the crack cocaine quantity thr e s holds in the drug q uantity table. Compare U.S.S.G. § 2D1.1(c) (2012), with U.S.S.G. § 2D1.1(c) ( 2014). W e decline to reverse the district court on this basis because Amendment 782 wen t into e ffect in November 2014

– after the d istrict court denied Spears’ motion in 2013 based o n the pre-Amendment 782 d rug q u a ntity table. I f Spears wishes to seek a sentence modification based o n A mendm e nt 782, he may do so b y filing such a motion in district court. See Uni t e d S t a t es v

. Taylor

, 778 F .3d 667, 672 (7th Cir. 2015) (“B ut for Tay lor to benefit from this amendment, he would need to f ile a new motion under § 3582(c)(2) in t h e d istrict court based onU N I T E D S T A T E S V

. S P E A R S 20

Amendment 782.”). W e e x press no view as to whether Spears
may be elig ible for a sentence m odification based on Amendment 782.

IV. CONCLUSION

The district court lacked jurisdiction to modify Spears’
senten c e u n d er § 3582(c)(2) because the sentencing court attributed to him at least 1 1 k i l og rams of crack cocaine. According ly

, Amendment 750 did not have the effect o f lowering Spears’ Guidelines rang e. W e reject Sp e a rs’ other
arg uments.

AF F IRMED.

TASHI MA, Circuit J udg e, dissenting :

Under 18 U.S.C. § 3 5 8 2 ( c ) (2), a district court has jurisdiction to reduce a defendant’s sentence if the defendant

was “sentenced to a term o f i m p r isonment based on a sentencing r ang e that has subsequently been lowered b y the Sentenci n g Commission.” 18 U.S.C. § 3582(c)(2). The majority

, howeve r , go es bey ond the statutory lang uag e to find, based on its e x a mination of the record of Spears’ prior sentencing proceeding , that Spears is inelig ible f or ( i.e. , that the di s trict c ourt lacks jurisdiction to consider) a sentence reduction. T he majority

conflates the jurisdictional analy sis with an a naly sis of the merits of Spears’ m o tion. B ecause this is the wrong analy sis, Irespectfully dissent.

I n 2001, the sen t e n c i n g court found that Spears h ad committed a

n offense involving at least 1.5 k i log rams o fU N I T E D S T A T E S V

. S P E A R S 21

c rack cocaine. At that time, this q uantity corresponded t o a b a s e offense level of 3 8 in the D rug Quantity Table of t h e Sentencing Guidelines. U.S.S.G. § 2D1.1(c) ( 20 0 0). The
court found that Spears’ base offense level should be enh a nced by 6 points, resulting in a total offense level o f 44 and a corresponding

sentencing rang e of life imprisonment.

Amendment 750 to the Sentencing Guidelines revised the Drug Q uantity Table, reducing offenses involving a t least 1.5 kilog rams o f c r ack cocaine to correspond to a base offense level o f 3 4. U.S.S.G. § 2D1.1(c) (2012). This chang e would decrease Spears’ total offense level to 40, and his sentencing
rang e to 3 60 months’ to life imprisonment. Under the revised Guidelines, a b ase offense level of 38 requires a finding that the offense involved at least 8.4 kilog rams of crack cocaine. Thus, u nder 1 8 U.S.C. § 3 582(c ) (2 )

, Spears was sentenced based on a sentencing rang e that was s u b s equently lowered by the Sentencing Commi s s i on. Therefore, under § 3582(a)(2), the district court had jurisdiction to consider on the merits Spears’ motion to modify h is term o f imprisonment.

The majority does not make this straig htforward statutory analy sis. I n stead, it considers whether the record from the 2001 sentencing c o u l d support a finding that Spears was respo n s i b l e f

or a t least 8.4 kilog rams of crack cocaine. B ut the sta t u t e does not call f or such an inquiry into the prior sentencing record to establish a sente ncing judg e’s jurisdiction to reconsider a defendant’s sentence.

The case law on w hich the majority relies does not support its a p proach. I n United States v. Hernandez

, 6 4 5 F .3d 709 (5th Cir. 2011), the district court denied the defenda n t ’ s § 3582(c)(2) motion based on the sentencingU N I T E D S T A T E S V

. S P E A R S 22

court’s previous finding that the def e n d a n t was responsible f o r 32.5 kilog r ams of crack c o c a ine, which was “far bey o n d the 4.5 kg threshold needed for the hig hest offense lev el” under the Sentencing Guidelines. Id. at 7 12. B ut the district
court d id not decide that the factual finding s in the sentencing record deprived it of jurisdiction to consider the defendant’s motion on the merits. Rather, the district court ex ercised its discretion to decline to modify the defendant’s sentence. 1 See id. (“[ W] e hold that the dis t r i c t court did not abuse its discretion in refusing to modify Hernandez ’s sentence or in refusing to g r ant an evidentiary hearing to decide the amount of crack for which Hernandez w as responsible.” (emphasis added)). 2

L ikewise, in United States v. Battle

, 706 F .3d 1313 (10th Cir. 2013), the second case the majority cites in support of its position, the Tenth Circuit reviewed a district court’s decision
to g rant in part and d eny in part a defendant’s § 35 8 2(c)(2) motion on its merits

. See id. at 1 3 14. Thus, this ca s e also

1 T h e p r o c e d ural h isto ry o f Hern an d ez’ s ap p eal illu strates th at th e d istrict co urt d en ied h is § 3 58 2(c)(2 ) m o t io n on th e m erits, an d n o t b ased

o n a lack o f j u

risd ictio n

. A f

ter t h e d istrict co urt d en ied Hern an d ez’ s § 3 5 8 2(c)(2 ) m o tio n , Hern an d ez ap p ealed th e d en ial o f h is m o tio n t o th e Fif th Circu it an d sim

u ltan eo u sly f

iled a m o t io n f

o r reco n sid eratio n in th e d istrict co u

rt. Id

. at 7 1 1

. T h e d istrict co urt d ete r m i n e d t h at it lack ed j urisd ictio n t o co n sid er Hern an d ez’ s m o tio n f o r reco n sid eratio n “ b ecau s e Hern an d ez m o v ed f

o r reco n s id eratio n a ft e r tak in g ap peal to [th e Fif th Circu it], an d thu s p o t en tially d ep riv ed th e d istrict co urt o f its j urisd i ctio n .” Id

. at 7 11 n .1

. T h e Fif

t h Circu it d eclin ed t o rev ie w th is j urisd ictio n al

ru lin g b ecau se th e merits o f H ern an dez’ s m o tio n w ere “ p ro perly b ef ore [th e co urt] o n th e d ef

en d an t’ s tim ely ap p eal” f ro m th e d en i al o f h is § 3 5 8 2(c)(2 ) m o tio n

. Id

.

2 Rev iew o f a sen ten cin g d ecisio n f or “ ab u se o f d iscretio n ” is, o f co urse,

rev iew o f th e m erits; n o t

a rev iew o f j urisd ictio n

.U N I T E D S T A T E S V

. S P E A R S 23

does not support the proposition that a d i strict court must review the sentencing record to determine wh e t h er it has jurisdiction to consider a defendant’s § 3582(c)(2) motion.

F urthermore

, even assuming the correctness of the majority ’s approach – tha t a district court must review a sentencing court’s factual finding s to determine whether it has jurisdiction to c onsider a defendant’s § 3582(c)(2) motion

– the sentencing court did n ot make any specific finding that Spears’ offense conduct involved at least 8.4 kilog r ams o f crack cocaine, the minimum q uantity required for a

pplication of the newly -amended base offense level of 38.

The sentencing

court did find that Spears had an interest in 11 kilog r ams of p owder cocaine i n volved in the conspiracy

. The court also acknowledg ed that the conspiracy involved cooking powder cocaine into crack cocaine. See Maj. Op. 13. B ased on these facts, t h e c o u r t found that Spears was r esponsible for some amount of crack cocaine in

ex c e ss of 1 .5 kilog rams. B ut the sent e n c ing court did not find, contrary

to what the majority

implies, that all

of the 11 kilog r a m s of powder cocaine with which Spears was associated were cooked into crack cocaine. I n fact, the Presentence Report 3 stated that the conspiracy with which S p ears was involved converted most of its powder cocaine into crack c ocaine. 4 B u t w hat is “most” of 11 k ilog rams?

3 A s th e m aj o ri t y n o t es, th e sen ten cin g co urt ad o p ted th e Presen ten ce Rep o rt “ as its o w

n f in d in g s ,” ex clu d i n g th e p arag rap h s u p o n w h ich n o f in d in g w as n ecessary . Maj . Op . 7

.

4 T h e m aj o rity q u ib bles th at th is statem en t “ w as a statem en t ab o u t th e

co n sp iracy in g en eral.” Maj

. Op

. at 1 6

. Bu t th e Cad illac- lo ad o f co cain e to w h ich th is sta t e m e n t ref

ers is th e v ery s am e co cain e w h ich is at th e h eart o f th e d ru g q u an tity issu e. Mo reo v er, th is s t a tem en t is n ev erU N I T E D S T A T E S V

. S P E A R S 24

The sentencing court did not answer that question, because it

was unnecessary to the sentence the court imposed. 5 The only necessary quantity finding, g iven the structure of the Guidelines at the time, was the c o urt’s finding that at least 1.5 kilog rams of c r a c k cocaine were involved. T h us, the sentencing court’s fact u a l finding s did not d efinitively link Spears with 8.4 kilog rams of cocaine base.

I n sum, under a straig htforward statutory analy s i s , the district c ourt had jurisdiction under 18 U.S.C. § 3582(c)(2) to modify Spears’ sentence. 6 Consequently

, I would reverse a nd

re m a n d for the district court to ex e rcise its discretion as to whether Spears’ sentence should be reduced. I
, therefore, respectfully

dissent.

co n trad icted o r cast i n d o u b t later i n th e P resen ten ce Rep o rt. T o reiterate, th e o n ly q u an tity f

in d in g m ad e by t

h e P resen t en ce Rep o rt, w h ich w as ad o p ted b y th e s en ten cin g j u d g e, see f oo tn o te 3
, su

p ra , is t h a t : “I n th is

case Sp ears’ relev an t co n d u ct i n clu d es m o re th an 1 .5 k ilo g ram s of co cain e b ase, resu ltin g ina b ase o f f en se lev el o f

3 8.” P SR, ¶

8 4

.

5 Neith er d id Sp ears’ c o u n s e l

. A l th o u g h h e ack n o w led g ed

, as th e

m aj o rity p oin ts o u

t, Maj

. Op

. at 17
, th at th e C ad illac- lo ad o f co cain e “ w as

co o k ed in to crack co cain e,” h e do es n o t ad d ress h o w m u ch o f it w as

co o k ed in t o crack ; thu s, h is arg u m en t at sen ten cin g d o es n o t co n trad ict th e P resen t en ce Rep o rt th at “ m o st o f [th e] p o w d er co cain e w as [co n v erted ] in to ‘ crack ’ .”

6 W h eth er th e s e n ten cin g co u rt sh o u l d ex ercise its d iscretio n un der § 3 5 8 2(c)(2 ) to red u ce Sp ears’ s en ten ce i s an en tirely d if f eren t q u estio n

.