FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ADOLPH SPEARS, SR., AKA

Pops,

Defendant-Appellant.

No. 13-30253

D.C. No.

3:98-cr-00208-HA-22

OPINION

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, Senior District Judge, Presiding

Argued and Submitted October 13, 2015

Portland, Oregon

Filed June 2, 2016

Before: A. Wallace Tashima, Ronald Lee Gilman*,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Tashima

* The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.

Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. SPEARS

SUMMARY**

Criminal Law

The panel affirmed the district court’s denial of a motion

to modify a sentence under 18 U.S.C. § 3582(c)(2) on the

basis ofSentencingGuidelines Amendment 750, which raised

the quantity thresholds for certain offenses involving crack

cocaine.

When the defendant was sentenced to life imprisonment

in a conspiracy case in 2001, the maximum base offense level

of 38 was triggered for a crack cocaine offense if the conduct

involved at least 1.5 kilograms of the drug. Pursuant to

Amendment 750, made retroactive by the Sentencing

Commission, the threshold was increased to 8.4 kilograms.

The panel held that the district court lacked jurisdiction to

modify the defendant’s sentence because the amended

Guidelines table would still yield a Guidelines range of life

imprisonment where, at sentencing in 2001, the district court

found that 11 kilograms of powder cocaine, which was to be

cooked into crack cocaine, 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 proper vehicle for arguing that the

district court failed to comply with Fed. R. Crim. P. 32(c) by

not responding to each of the defendant’s objections to the

presentence report at sentencing in 2001.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. SPEARS 3

The panel held that Guidelines Amendment 782, which

further raised the crack cocaine quantity thresholds, did not

provide a basis for reversing the denial of the defendant’s

motion to modify his sentence. Amendment 782 went into

effect in November 2014, after the district court’s denied the

defendant’s motion in 2013. The panel stated that the

defendant would need to file a new motion under

§ 3582(c)(2) in order to benefit from Amendment 782.

Dissenting, Judge Tashima wrote that the district court

had jurisdiction to consider the defendant’s motion on the

merits because he was sentenced based on a sentencing range

that was subsequently lowered by the Sentencing

Commission. Judge Tashima also wrote that even under the

majority’s approach, the sentencing court did not make any

specific finding that the defendant’s offense conduct involved

at least 8.4 kilograms of crack cocaine. Judge Tashima would

reverse and remand for the district court to exercise its

discretion as to whether the defendant’s sentence should be

reduced.

COUNSEL

Michael R. Levine (argued) and Matthew G. McHenry,

Levine & McHenry LLC, Portland, Oregon, for DefendantAppellant.

Scott E. Bradford (argued), Assistant United States Attorney,

and Kelly A. Zusman, Appellate Chief, United States

Attorney’s Office, Portland, Oregon, for Plaintiff-Appellee.
4 UNITED STATES V. SPEARS

OPINION

BEA, Circuit Judge:

This appeal challenges a district court’s denial of a

motion to modify a sentence under 18 U.S.C. § 3582(c)(2).

Appellant Adolph Spears, Sr. was convicted of various crimes

in 2001 based on his involvement in a cocaine trafficking

conspiracy. The court sentenced him to life imprisonment. In

2013, Spears filed the instant motion seeking a reduction of

his sentence. His argument was based on an amendment to

the U.S. Sentencing Guidelines that increased the quantity

thresholds for crack cocaine offenses. In some cases, the

amendment would have the effect of yielding a more lenient

sentence for offense conduct involving a given quantity of

crack cocaine. The district court concluded that it lacked

jurisdiction to modify Spears’ sentence because the amended

Guidelines table would still yield a Guidelines range of life

imprisonment. It denied Spears’ motion. For the reasons

stated below, we agree that the court lacked jurisdiction to

modify Spears’ sentence. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial

Spears and several co-defendants were charged with

conspiring to manufacture, distribute, and possess with intent

to distribute powder cocaine and crack cocaine, in violation

of 21 U.S.C. §§ 841(a)(1) and 846, and with other crimes.

Count 1 of the eighth superseding indictment charged certain

of Spears’ co-conspirators with driving loads of powder

cocaine from California to Portland, Oregon, where it was

manufactured into crack cocaine and distributed. Among
UNITED STATES V. SPEARS 5

other vehicles, the co-conspirators allegedly used on multiple

occasions a Cadillac Eldorado with hidden compartments to

transport the cocaine. According to the indictment, one of

these trips occurred in November 1997, when some of

Spears’ co-conspirators arranged for approximately 11

kilograms of powder cocaine to be driven from Fresno,

California to Portland. Count 1 charged Spears with

possessing this particular shipment of cocaine jointly with

several co-defendants. The case was tried to a jury before

Judge Ancer L. Haggerty. On December 7, 2000, the jury

returned a guilty verdict on Count 1, and on other counts not

relevant to this appeal.

B. Sentencing

The Presentence Report (“PSR”) stated that the

conspiracy involved transporting multi-kilogram loads of

powder cocaine from California to the Portland area. Once

the cocaine arrived in Portland, various members of the

conspiracy “cooked” it into crack cocaine.1 According to the

PSR, one kilogram of powder cocaine yielded a slightly

greater quantity of crack cocaine. The PSR described several

overt acts of the conspiracy, including transportation of the

11-kilogram load of powder cocaine in November 1997. The

PSR attributed ownership of the 11-kilogram load to Spears

and two other co-conspirators.

In calculating Spears’ base offense level, the PSR stated

that Spears’ relevant offense conduct included “more than 1.5

kilograms of [crack] cocaine.” This statement reflected the

drug quantity table in effect at the time of Spears’ sentencing.

1 Crack cocaine is a type of cocaine base. Powder cocaine is not.

Kimbrough v. United States, 552 U.S. 85, 94 (2007).
6 UNITED STATES V. SPEARS

The table assigns a base offense level based on the identity

and quantity of drugs involved in the offense. The maximum

base offense level provided for is level 38. At the time of

Spears’ sentencing, offense level 38 was triggered by 1.5

kilograms or more of crack cocaine. U.S. Sentencing

Guidelines Manual § 2D1.1(c) (2000). The PSR added 2

levels because the conspiracy involved dangerous weapons,

and it added 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 category of IV.

Category IV, combined with offense level 44, yielded a

Guidelines “range” of life imprisonment.

Spears objected to several portions of the PSR in a letter

to the U.S. Probation Office. As is relevant here, Spears

objected to the PSR’s determination that his conduct involved

more than 1.5 kilograms 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 11-kilogram load of powder cocaine in the

Cadillac belonged to him. He argued that his offense level

calculation should be based on only a particular series of

transactions in which Spears bought a total of 5 to 15

kilograms of powder cocaine from two other co-conspirators.

Spears did not dispute the PSR’s assertion that one kilogram

of powder cocaine yielded a slightly greater quantity of crack

cocaine.

Judge Haggerty held a sentencing hearing on May 7,

2001. Spears’ attorneyargued that Spears was not responsible

for any quantity of crack cocaine. The attorney argued that

the trial evidence did not establish that Spears was involved
UNITED STATES V. SPEARS 7

in cooking powder cocaine into crack cocaine. Furthermore,

he argued that Spears was not involved in trafficking cocaine

from Fresno to Portland, and that Spears had no connection

to the 11-kilogram load of powder cocaine in the Cadillac.

The court rejected these arguments. Judge Haggertysaid “[a]s

to the objections by [Spears’ counsel], I think I have to

resolve all of those against you.” The court found that

“overwhelming evidence” supported the assertion that

Spears’ relevant offense conduct in the conspiracy involved

“manufactur[ing] in excess of one and a half kilograms of

crack cocaine.” Consistent with the PSR, the court calculated

a base offense level of 38. It also adopted the deadly weapon

and leadership enhancements, and criminal history category

IV. As to Count 1, the court sentenced Spears to life

imprisonment.

The court issued a written Findings of Fact order on May

14, 2001. The order specifically addressed counsel’s

objection to the PSR’s ultimate conclusion that Spears’

relevant conduct included more than 1.5 kilograms of crack

cocaine. The court answered the objection by stating that

“[t]he court finds that the trial evidence showed that the

defendant had an interest in the 11 kilos of cocaine that was

charged in Count 1.” Furthermore, the court also found “that

all other uncontroverted facts contained in the Presentence

Report” were “true and accurate.” Finally, the court wrote

that “[o]ther than those paragraphs previously amended,

clarified or adjusted; or upon which no finding is necessary;

the court adopts the presentence report . . . as its own findings

and conclusions.”

Spears appealed his conviction in an earlier proceeding.

We affirmed. United States v. Spears, 60 F. App’x 671 (9th

Cir. 2003).
8 UNITED STATES V. SPEARS

C. Motion to Reduce Sentence

Amendment 750 to the Sentencing Guidelines raised the

quantity thresholds for certain offenses involving crack

cocaine. U.S.S.G. app. C, amd. 750 (2011). The Sentencing

Commission made this amendment retroactive in 2011. Id.

amd. 759. Under the amended drug quantity table in the 2012

SentencingGuidelines, the maximum base offense level of 38

is triggered for crack cocaine offenses only if the conduct

involves at least 8.4 kilograms of the drug. U.S.S.G.

§ 2D1.1(c) (2012). This represents a significant increase from

the 1.5 kilogram threshold that applied at the time of Spears’

sentencing. Under the 2012 Guidelines, if the offense conduct

involved at least 840 grams but less than 2.8 kilograms of

crack cocaine, then the base offense level is 34. Id.

In March 2013, Spears filed a Motion to Reduce Sentence

in light of the reductions and pursuant to a provision of the

Fair Sentencing Act, 18 U.S.C. § 3582(c)(2). He argued that

in 2001 the court did not find that his conduct involved any

specific amount of crack cocaine greater than 1.5 kilograms.

Under the amended 2012 drug quantity table, 1.5 kilograms

of crack cocaine would lead to a base offense level of 34.

This would lead to an adjusted offense level of 40, after

adding 6 levels for Spears’ leadership role and the use of a

deadly weapon. Level 40 combined with criminal history

category IV yields a Guidelines range of 30 years to life.

Spears requested that his sentence be reduced from life

imprisonment to 30 years.

Judge Haggerty denied Spears’ motion for reduction in

September 2013. He concluded that the court lacked

jurisdiction to modify Spears’ sentence under § 3582(c)(2).

Section 3582(c)(2) permits a district court to reduce a
UNITED STATES V. SPEARS 9

sentence “if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.”

Sentencing Guidelines section 1B1.10 provides that a

sentence reduction is not authorized under 18 U.S.C.

§ 3582(c)(2) if “an amendment . . . does not have the effect of

lowering the defendant’s applicable guideline range.”

Judge Haggerty concluded that Amendment 750 did not

“have the effect of lowering” Spears’ applicable Guidelines

range. He wrote that during the sentencing proceedings in

2001, the “court found that 11 kilograms of cocaine is part of

defendant’s relevant conduct, and those 11 kilograms of

cocaine would be used to make crack.” Since the 2012

amended drug quantity table provides for a base offense level

of 38 for conduct involving 8.4 kilograms or more of crack

cocaine, Spears would still be subject to a base offense level

of 38, total offense level of 44, and criminal history category

IV. This yields the same Guidelines “range” of life

imprisonment.

Spears timely appealed.

II. STANDARD OF REVIEW

We review de novo whether 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) (citing United States v. Aguirre, 214 F.3d 1122,

1124 (9th Cir. 2000)).

III. DISCUSSION

Spears argues that the district court erred in holding that

it lacked jurisdiction to modify Spears’ sentence under
10 UNITED STATES V. SPEARS

§ 3582(c)(2). He argues that the court’s findings in 2001

regarding drug quantity are limited to its statement at the

sentencing hearing that Spears’ relevant conduct involved “in

excess of one and a half kilograms of crack cocaine.” He

argues that the court’s discussion of the 11-kilogram Cadillac

load in 2001 does not preclude a sentence modification under

§ 3582(c)(2) because the Cadillac contained only powder

cocaine, rather than crack cocaine.

Next, Spears argues that the district court violated Federal

Rule of Criminal Procedure 32(c) at sentencing in 2001 by

not responding to each of Spears’ objections to the PSR in the

court’s Findings of Fact. He argues that since the court did

not explicitly resolve all of Spears’ objections to the PSR in

2001, the court should not have relied on those findings in

2013.

Finally, in a Rule 28(j) letter filed with this court shortly

before oral argument, Spears argues that Amendment 782 to

the Sentencing Guidelines requires us to reverse the district

court’s denial of the motion and remand for further

proceedings.

We address each of these arguments in turn.

A. The district court correctly concluded that it lacked

jurisdiction to modify Spears’ sentence in 2013.

“As a general matter, courts may not alter a term of

imprisonment once it has been imposed.” United States v.

Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007). Section

3582(c)(2) creates an exception to this rule by allowing

modification of a term of imprisonment if: (1) the sentence is

“based on a sentencing range that has been subsequently
UNITED STATES V. SPEARS 11

lowered by the Sentencing Commission”; and (2) “such a

reduction is consistent with applicable policy statements

issued by the Sentencing Commission.”

The primary “applicable policy statement” is U.S.S.G.

§ 1B1.10. United States v. Pleasant, 704 F.3d 808, 810 (9th

Cir. 2013). The policy statement prohibits a sentence

reduction in cases where the relevant amendment “does not

have the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The policy

statement requires district courts to “determine the amended

guideline range that would have been applicable to the

defendant if the amendment(s) to the guidelines . . . had been

in effect at the time the defendant was sentenced.” Id.

§ 1B1.10(b)(1).

Spears emphasizes that at the sentencing hearing in 2001

the district court stated that the “conspiracy manufactured in

excess of one and a half kilograms of crack cocaine.” As a

preliminary matter, we consider whether this statement

necessarily means that the sentencing court did not make

other findings as to crack cocaine quantity that could later

preclude the applicability of § 3582(c)(2). We hold that it

does not.

We are persuaded by United States v. Hernandez,

645 F.3d 709 (5th Cir. 2011). In Hernandez, as here, a

sentencing court determined that “the quantity of drugs far

exceeds the 1.5 kilograms needed” to trigger the maximum

offense level threshold. Id. at 710. The sentencing court also

found that “[b]ased on the most conservative estimate, [the

defendant] is responsible for 32.5 kg of [crack] cocaine.” Id.

Years later, the Sentencing Commission retroactively raised

the 1.5 kilogram quantity threshold to 4.5 kilograms. Id. at
12 UNITED STATES V. SPEARS

711. The defendant filed a motion under 18 U.S.C.

§ 3582(c)(2). Id. at 711. He argued that “the clearest finding

as to the quantity of drugs attributed to [him] is ‘1.5

kilograms’ of crack cocaine.” The § 3582 court rejected this

argument and denied the motion based on the sentencing

court’s “conservative estimate” of 32.5 kilograms, a quantity

which still triggered the maximum offense level under the

amended Guidelines. Id. The Fifth Circuit agreed that it was

permissible to deny the motion based on the 32.5 kilogram

figure and affirmed the district court. Id. at 712. See also

United States v. Battle, 706 F.3d 1313, 1319 (10th Cir. 2013)

(“[A] district court’s prior attribution of ‘at least’ 1.5

kilograms of crack (or similar language) to a defendant does

not bind that court to a finding of exactly 1.5 kilograms in a

subsequent § 3582(c)(2) proceeding.”).

Spears argues in this case that the court’s reference in

2001 to 1.5 kilograms is the only clear finding as to drug

quantity and that the record is “ambiguous at best” as to other

quantity findings. We disagree. As explained below, it is clear

from the sentencing record that the court attributed at least 11

kilograms of crack cocaine to Spears based on the Cadillac

load.

Spears’ position at the sentencing hearing was that he was

not responsible for any quantity of crack cocaine. He denied

any involvement with cooking powder cocaine into crack

cocaine, and he denied any involvement with the Cadillac

load. Spears’ position was contrary to the PSR. It was also

contrary to Count 1 of the indictment, on which he was

convicted and which charged that he was involved in a

conspiracy to traffic powder cocaine from California to

Oregon for processing into crack cocaine. Spears asked the

court to sentence him based only on a series of transactions
UNITED STATES V. SPEARS 13

in which he sold 5 to 15 kilograms of powder cocaine to two

of his co-conspirators.2 Following this approach would have

required the district court to reject the PSR’s finding that his

offense conduct involved more than 1.5 kilograms of crack

cocaine.

The court recognized that Spears could not avoid

responsibility for at least 1.5 kilograms of crack cocaine if he

were involved with the Cadillac load. It made the following

statement to Spears’ counsel at the sentencing hearing:

THE COURT: With respect to the one-and-ahalf kilos of crack, your argument is based

solely on the premise that Mr. Spears should

not be associated with the 11 kilos of cocaine

seized from the Cadillac, because if he’s

associated with those 11 kilos, then, in fact,

he’s associated with that conspiracy. And

there’s substantial evidence that that

conspiracy engaged in the manufacturing of

crack cocaine from powder cocaine, is that

correct?

Spears’ counsel answered affirmatively. He said, “So, I think

yes. In order to establish that Mr. Spears was involved in 1.5

kilograms of crack cocaine, you have to find, by a

preponderance of the evidence, that he had an interest in that

Cadillac load of cocaine.” This exchange would be

nonsensical if the conspiracy did not involve cooking the 11

kilograms of powder cocaine into crack cocaine.

2 Powder cocaine is treated differently – and less harshly – under the

Sentencing Guidelines. See Dillon v. United States, 560 U.S. 817, 821

(2010).
14 UNITED STATES V. SPEARS

In the Findings of Fact order, the court revisited Spears’

objection to the PSR’s conclusion that he was responsible for

more than 1.5 kilograms of crack cocaine. In 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 charged in Count

1.” Spears now emphasizes the fact that the order did not state

that the 11 kilograms would be cooked into crack cocaine.

However, here too it would be nonsensical to conclude that

the sentencing court found otherwise. If the 11 kilograms

were not to be cooked into crack, then Spears’ responsibility

for the powder cocaine in the Cadillac would not have

provided any basis for rejecting Spears’ challenge to the

PSR’s 1.5 kilogram crack cocaine finding. Furthermore, it is

inexplicable why the court would have made any finding

involving powder cocaine if the cocaine was not to be cooked

into crack. After all, Spears was sentenced based on the drug

quantity thresholds for crack cocaine only, not powder

cocaine. Powder cocaine would be irrelevant to the court’s

calculation of Spears’ offense level unless it was going to be

cooked into crack cocaine. We decline to reinterpret the

Findings of Fact order in a way that would make its findings

irrelevant to Spears’ sentencing.

Notwithstanding the foregoing, Spears argues that two

opinions from our sister circuits require us to reverse the

court’s denial and remand for further proceedings. We are not

persuaded.

First Spears points to United States v. Hamilton, 715 F.3d

328 (11th Cir. 2013). In Hamilton, a defendant twice moved

for a sentence modification based on the lowered offense

levels for crack cocaine offenses. The district court denied

both motions. Id. at 336. In denying them, the district court
UNITED STATES V. SPEARS 15

relied on responsive memoranda filed by the Probation Office

and by the government. Id. at 335–36. These memoranda

contained factual inaccuracies about the defendant’s original

sentencing. They stated that the initial PSR found that the

defendant was responsible for at least 12 kilograms of crack

cocaine. Id. at 336. The memoranda failed to account for an

addendum to the original PSR, which made it less clear

whether the defendant was responsible for 12 kilograms. Id.

at 335. Since the memoranda were factually inaccurate, and

the district court relied on those memoranda in denying the

motions, the Eleventh Circuit remanded with instructions to

“determine what drug quantityfindings [the sentencing court]

made, either explicitly or implicitly, at Hamilton’s original

sentencing hearing.” Id. at 340. Hamilton is inapposite to this

appeal because the district court here did not rely on factual

inaccuracies when it denied Spears’ motion.

Spears also points to United States v. Hall, 582 F.3d 816

(7th Cir. 2009). In Hall, a defendant pleaded guilty to a

conspiracy to possess with intent to distribute over 50 grams

of crack cocaine and more than 5 kilograms of a mixture

containing cocaine. Id. at 817. He acknowledged in a plea

agreement that the conspiracy involved more than 1.5

kilograms of crack cocaine. After amendments to the

Guidelines, the defendant sought a sentence modification

under 18 U.S.C. § 3582(c)(2). Id. at 818. The district court

denied the motion because, after reviewing the admissions in

the plea agreement, it concluded that the defendant was

responsible for crack cocaine totaling “23 to 43 kilograms,”

which meant that he would not receive a lower sentencing

range under the amended Guidelines. Id. The Seventh Circuit

remanded because the admission the district court relied on

stated that “defendant sold 1 to 2 kilograms of powder and

crack cocaine every month” for a two-year period. Id.
16 UNITED STATES V. SPEARS

(emphasis added). Thus, the key admission in the defendant’s

plea agreement was imprecise as to the amount of crack

cocaine involved in the conspiracy. “[T]he district court

ignored an ambiguity in the facts and misapprehended the

content of Hall's plea admissions.” Id.

Hall, like Hamilton, is inapposite here. The district court

in this case did not misapprehend the record when it denied

Spears’ motion. It was correct in finding that the sentencing

court attributed the Cadillac load to Spears.

In sum, the sentencing record makes it clear that the court

attributed to Spears 11 kilograms of powder cocaine that were

to be cooked into crack cocaine. The sentencing court also

adopted thePSR’s uncontroverted assertion that one kilogram

of powder cocaine yielded a slightly greater quantity of crack

cocaine. This combination of facts supports the conclusion

that Spears had an interest in crack cocaine weighing at least

11 kilograms.

The dissent disputes this conclusion on the ground that

the PSR stated at one point that the conspiracy converted

“most” of its powder cocaine into crack cocaine. (Dissenting

Op. 23–24.) This statement, according to the dissent,

undermines the conclusion that all 11 kilograms of powder

cocaine in the Cadillac were in fact cooked into crack, with

the result that there exists no assurance that Spears was

responsible for such an amount of crack cocaine. See id.

But the statement to which the dissent refers was a

statement about the conspiracy in general. As described by

the PSR, the entire conspiracy involved years of cocaine

trafficking orchestrated by dozens of co-conspirators. The

conspiracy, as a whole, “converted most of its powder
UNITED STATES V. SPEARS 17

cocaine into ‘crack.’” This statement from the PSR does not

address the specific, 11-kilogram load of powder cocaine in

the Cadillac.

And with respect to that particular load, Spears’ attorney

conceded after trial that if the court found “that Mr. Spears

had an interest in the cocaine that was in the Cadillac, then it

would be—certainly, [the court] could conclude that that

cocaine was then being delivered to one of the houses . . .

where it was cooked into crack cocaine.” The evidence before

the sentencing court accordingly established that all 11

kilograms of powder cocaine in the Cadillac were in fact

“cooked into crack,” without any qualification about “most”

of the amount being converted.

As a result, the district court was correct to find that

Spears was responsible for more than 8.4 kilograms of crack

cocaine. Spears’ applicable Guidelines range under the drug

quantity table, as modified by Amendment 750, would

therefore be the same as the Guidelines range before the

amendment. This means that Amendment 750 did not “have

the effect of lowering the defendant’s applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B). Modifying Spears’

sentence under these circumstances would not be “consistent

with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). It follows that the

district court did not have jurisdiction under § 3582(c)(2) to

modify Spears’ sentence.

B. The district court did not err when it relied on factual

findings from the 2001 sentencing hearing.

Spears argues that the court violated Federal Rule of

Criminal Procedure 32(c) at sentencing in 2001 by not
18 UNITED STATES V. SPEARS

responding to each of Spears’ objections to the PSR in the

court’s Statement of Reasons.

At the time of Spears’ sentencing, Rule 32(c) provided

that a sentencing court “must rule on any unresolved

objections to the presentence report,” and “must make either

a finding on the allegation or a determination that no finding

is necessary” for “each matter controverted.” See United

States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000)).3 Spears

cites authority for the proposition that Rule 32(c) requires

“strict compliance” from sentencing courts. United States v.

Doe, 705 F.3d 1134, 1153 (9th Cir. 2013) (referencing Rule

32(i)(3)(B)). He argues that because “[t]he court’s findings at

the original sentencingwere insufficient to comport with Rule

32, . . . any reliance on them here is misplaced.” He relies on

the sentencing court’s Statement of Reasons, which did not

explicitly state that the 11 kilograms in the Cadillac would be

cooked into crack cocaine.

Spears’ argument is essentially that the 2001 court did not

adequately address Spears’ specific PSR objections point-bypoint at the hearing or in the Statement of Reasons. This

argument fails because a motion to modify a sentence under

18 U.S.C. § 3582(c)(2) is an improper vehicle to attack a

sentence for non-compliance with the Rules of Criminal

Procedure. “Section 3582(c)(2)’s text, together with its

3 Rule 32(c) has been amended. In its current form, Rule 32(c) does not

support Spears’ argument. However, current Rule 32(i)(3)(B) is closely

analogousto the old Rule 32(c). It provides that “[a]t sentencing, the court

must—for any disputed portion of the presentence report or other

controverted matter—rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or

because the court will not consider the matter in sentencing . . . .” FED.R.

CRIM. P. 32(i)(3)(B) (2014).
UNITED STATES V. SPEARS 19

narrow scope, shows that Congress intended to authorize only

a limited adjustment to an otherwise final sentence and not a

plenary resentencing proceeding.” Dillon v. United States,

560 U.S. 817, 826 (2010); see also United States v. Waters,

648 F.3d 1114, 1118 (9th Cir. 2011) (“[A] court’s authority

in a sentence-reduction proceeding is strictly limited to

shortening the length of a prison term and does not extend to

collateral matters unrelated to the Guidelines change.”)

(quoting United States v. Dunn, 631 F.3d 1291, 1293 (D.C.

Cir. 2011)). Spears cites no authority for his contrary

assertion that the 2013 court should have ignored factual

findings in the 2001 sentencing proceeding because of a

possible Rule 32 violation. Accordingly, it was proper for the

district court to rely on those findings.

C. Amendment 782 does not provide a basis for reversing

the court’s denial of Spears’ motion.

Shortly before oral argument in this case, Spears filed a

Rule 28(j) letter with this court asking us to reverse and

remand the court’s denial in light of Amendment 782 to the

Sentencing Guidelines. Amendment 782 further raised the

crack cocaine quantity thresholds in the drug quantity table.

Compare U.S.S.G. § 2D1.1(c) (2012), with U.S.S.G.

§ 2D1.1(c) (2014). We decline to reverse the district court on

this basis because Amendment 782 went into effect in

November 2014 – after the district court denied Spears’

motion in 2013 based on the pre-Amendment 782 drug

quantity table. If Spears wishes to seek a sentence

modification based on Amendment 782, he may do so by

filing such a motion in district court. See United States v.

Taylor, 778 F.3d 667, 672 (7th Cir. 2015) (“But for Taylor to

benefit from this amendment, he would need to file a new

motion under § 3582(c)(2) in the district court based on
20 UNITED STATES V. SPEARS

Amendment 782.”). We express no view as to whether Spears

may be eligible for a sentence modification based on

Amendment 782.

IV. CONCLUSION

The district court lacked jurisdiction to modify Spears’

sentence under § 3582(c)(2) because the sentencing court

attributed to him at least 11 kilograms of crack cocaine.

Accordingly, Amendment 750 did not have the effect of

lowering Spears’ Guidelines range. We reject Spears’ other

arguments.

AFFIRMED.

TASHIMA, Circuit Judge, dissenting:

Under 18 U.S.C. § 3582(c)(2), a district court has

jurisdiction to reduce a defendant’s sentence if the defendant

was “sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The

majority, however, goes beyond the statutory language to

find, based on its examination of the record of Spears’ prior

sentencing proceeding, that Spears is ineligible for (i.e., that

the district court lacks jurisdiction to consider) a sentence

reduction. The majority conflates the jurisdictional analysis

with an analysis of the merits of Spears’ motion. Because

this is the wrong analysis, I respectfully dissent.

In 2001, the sentencing court found that Spears had

committed an offense involving at least 1.5 kilograms of
UNITED STATES V. SPEARS 21

crack cocaine. At that time, this quantity corresponded to a

base offense level of 38 in the Drug Quantity Table of the

Sentencing Guidelines. U.S.S.G. § 2D1.1(c) (2000). The

court found that Spears’ base offense level should be

enhanced by 6 points, resulting in a total offense level of 44

and a corresponding sentencing range of life imprisonment.

Amendment 750 to the Sentencing Guidelines revised the

Drug Quantity Table, reducing offenses involving at least 1.5

kilograms of crack cocaine to correspond to a base offense

level of 34. U.S.S.G. § 2D1.1(c) (2012). This change would

decrease Spears’ total offense level to 40, and his sentencing

range to 360 months’ to life imprisonment. Under the revised

Guidelines, a base offense level of 38 requires a finding that

the offense involved at least 8.4 kilograms of crack cocaine. 

Thus, under 18 U.S.C. § 3582(c)(2), Spears was sentenced

based on a sentencing range that was subsequently lowered

by the Sentencing Commission. Therefore, under

§ 3582(a)(2), the district court had jurisdiction to consider on

the merits Spears’ motion to modify his term of

imprisonment.

The majority does not make this straightforward statutory

analysis. Instead, it considers whether the record from the

2001 sentencing could support a finding that Spears was

responsible for at least 8.4 kilograms of crack cocaine. But

the statute does not call for such an inquiry into the prior

sentencing record to establish a sentencing judge’s

jurisdiction to reconsider a defendant’s sentence.

The case law on which the majority relies does not

support its approach. In United States v. Hernandez,

645 F.3d 709 (5th Cir. 2011), the district court denied the

defendant’s § 3582(c)(2) motion based on the sentencing
22 UNITED STATES V. SPEARS

court’s previous finding that the defendant was responsible

for 32.5 kilograms of crack cocaine, which was “far beyond

the 4.5 kg threshold needed for the highest offense level”

under the Sentencing Guidelines. Id. at 712. But the district

court did not decide that the factual findings in the sentencing

record deprived it of jurisdiction to consider the defendant’s

motion on the merits. Rather, the district court exercised its

discretion to decline to modify the defendant’s sentence.1See

id. (“[W]e hold that the district court did not abuse its

discretion in refusing to modify Hernandez’s sentence or in

refusing to grant an evidentiary hearing to decide the amount

of crack for which Hernandez was responsible.” (emphasis

added)).2

Likewise, 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 grant in part and deny in part a defendant’s § 3582(c)(2)

motion on its merits. See id. at 1314. Thus, this case also

1 The procedural history of Hernandez’s appeal illustrates that the

district court denied his § 3582(c)(2) motion on the merits, and not based

on a lack of jurisdiction. After the district court denied Hernandez’s

§ 3582(c)(2) motion, Hernandez appealed the denial of his motion to the

Fifth Circuit and simultaneously filed a motion for reconsideration in the

district court. Id. at 711. The district court determined that it lacked

jurisdiction to consider Hernandez’s motion for reconsideration “because

Hernandez moved for reconsideration after taking appeal to [the Fifth

Circuit], and thus potentially deprived the district court ofits jurisdiction.” 

Id. at 711 n.1. The Fifth Circuit declined to review this jurisdictional

ruling because the merits of Hernandez’s motion were “properly before

[the court] on the defendant’s timely appeal” from the denial of his

§ 3582(c)(2) motion. Id.

2 Review of a sentencing decision for “abuse of discretion” is, of course,

review of the merits; not a review of jurisdiction.
UNITED STATES V. SPEARS 23

does not support the proposition that a district court must

review the sentencing record to determine whether it has

jurisdiction to consider a defendant’s § 3582(c)(2) motion.

Furthermore, even assuming the correctness of the

majority’s approach – that a district court must review a

sentencing court’s factual findings to determine whether it

has jurisdiction to consider a defendant’s § 3582(c)(2) motion

– the sentencing court did not make any specific finding that

Spears’ offense conduct involved at least 8.4 kilograms of

crack cocaine, the minimum quantity required for application

of the newly-amended base offense level of 38.

The sentencing court did find that Spears had an interest

in 11 kilograms of powder cocaine involved in the

conspiracy. The court also acknowledged that the conspiracy

involved cooking powder cocaine into crack cocaine. See

Maj. Op. 13. Based on these facts, the court found that

Spears was responsible for some amount of crack cocaine in

excess of 1.5 kilograms. But the sentencing court did not

find, contrary to what the majority implies, that all of the 11

kilograms of powder cocaine with which Spears was

associated were cooked into crack cocaine. In fact, the

Presentence Report3stated that the conspiracy with which

Spears was involved converted most of its powder cocaine

into crack cocaine.4 But what is “most” of 11 kilograms?

3 As the majority notes, the sentencing court adopted the Presentence

Report “as its own findings,” excluding the paragraphs upon which no

finding was necessary. Maj. Op. 7.

4 The majority quibbles that this statement “was a statement about the

conspiracy in general.” Maj. Op. at 16. But the Cadillac-load of cocaine

to which this statement refers is the very same cocaine which is at the

heart of the drug quantity issue. Moreover, this statement is never
24 UNITED STATES V. SPEARS

The sentencing court did not answer that question, because it

was unnecessary to the sentence the court imposed.5 The

only necessary quantity finding, given the structure of the

Guidelines at the time, was the court’s finding that at least 1.5

kilograms of crack cocaine were involved. Thus, the

sentencing court’s factual findings did not definitively link

Spears with 8.4 kilograms of cocaine base.

In sum, under a straightforward statutory analysis, the

district court had jurisdiction under 18 U.S.C. § 3582(c)(2) to

modify Spears’ sentence.6 Consequently, I would reverse and

remand for the district court to exercise its discretion as to

whether Spears’ sentence should be reduced. I, therefore,

respectfully dissent.

contradicted or cast in doubt later in the Presentence Report. To reiterate,

the only quantity finding made by the Presentence Report, which was

adopted by the sentencing judge, see footnote 3, supra, is that: “In this

case Spears’relevant conduct includes more than 1.5 kilograms of cocaine

base, resulting in a base offense level of 38.” PSR, ¶ 84.

5 Neither did Spears’ counsel. Although he acknowledged, as the

majority points out, Maj. Op. at 17, that the Cadillac-load of cocaine “was

cooked into crack cocaine,” he does not address how much of it was

cooked into crack; thus, his argument at sentencing does not contradict the

Presentence Report that “most of [the] powder cocaine was [converted]

into ‘crack’.”

6 Whether the sentencing court should exercise its discretion under

§ 3582(c)(2) to reduce Spears’ sentence is an entirely different question.