RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0355p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENTA RAYNARD MOORE,

Defendant-Appellant.

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No. 08-1699

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 99-00149-001—Janet T. Neff, District Judge.

Argued: August 6, 2009

Decided and Filed: October 5, 2009 

Before: CLAY, COOK, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,

Michigan, for Appellant. Nils R. Kessler, ASSISTANT UNITED STATES ATTORNEY,

Grand Rapids, Michigan, for Appellee. ON BRIEF: Sharon A. Turek, FEDERAL PUBLIC

DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. B. René Shekmer,

ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. 

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant Kenta Raynard Moore (“Moore”) appeals the order

of the United States District Court for the Western District of Michigan denying his motion

for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Moore contends

that the district court improperly found that he had distributed at least 4.5 kilograms of

cocaine base, thus making him ineligible for a reduction. For the following reasons, the

1
No. 08-1699 United States v. Moore Page 2

1

Because Moore was sentenced in May 2000, the Guidelines effective November 1999 should

have been used. The PSR indicates that its recommendations were based on the Guidelines effective

November 1998. Regardless, because the Guidelines provision at issue, U.S.S.G. § 2D1.1(c), was identical

in the 1998 and 1999 editions, the use of the incorrect sentencing guideline is harmless. 

district court’s denial of a sentence reduction for Moore is REVERSED, and the case is

REMANDED so that the district court may reconsider the merits of Moore’s motion.

BACKGROUND

According to Moore’s Presentence Investigation Report (“PSR”), a confidential

informant for the Drug Enforcement Administration made a controlled purchase of 23.4

grams of crack cocaine from Moore on May 11, 1999. On September 13, 1999, a grand jury

charged Moore in an indictment with one count of knowingly and intentionally distributing

cocaine base in violation of 21 U.S.C. § 841(a)(1). On November 18, 1999, Moore pled

guilty to the single count. 

Moore’s PSR noted as part of its description of Moore’s offense conduct that two

other individuals who pled guilty to drug distribution gave statements to the DEA that they

and Moore pooled money to purchase crack cocaine and powder cocaine “in kilogram

quantities” from a supplier in Chicago. The PSR advised that “[the three defendants] paid

anywhere from $20,500.00 to $24,000.00 per kilogram, and would purchase anywhere from

two to three kilograms per month, sometimes as often as two to three times per month.” The

PSR also stated that in total, the two proffering defendants “estimated the group purchased

between 180 to 300 kilograms of cocaine.” (PSR at 4.) The PSR also stated that “[f]or

computation purposes, Mr. Moore is being held responsible for at least 1.5 kilograms of

cocaine base.” (PSR at 5.) At the time of Moore’s sentence, under the United States

Sentencing Guidelines (“Guidelines”), the highest base offense level of 38 applied to a

defendant distributing “1.5 KG or more of cocaine base.” U.S.S.G. § 2D1.1(c) (1999).1

The PSR recommended a three-level reduction for acceptance of responsibility,

noting that Moore “has provided complete information to the government and entered

a timely plea of guilty.” (PSR at 6.) Moore admitted to the probation officer preparing

the PSR that “his overall involvement in the distribution of drugs exceeded 1.5

kilograms of crack cocaine, although he could not be more specific.” (PSR at 5-6.)
No. 08-1699 United States v. Moore Page 3

After factoring in a three-level reduction for acceptance of responsibility, the PSR

advised that Moore’s base offense level was 35, and, stating that Moore had a Criminal

History Category of III, recommended a Guidelines range of 210 to 262 months. On

April 25, 2000, the government moved the court for a two-level downward departure

pursuant to U.S.S.G. § 5K1.1, because Moore had provided substantial assistance to the

government. 

At Moore’s sentencing hearing on May 1, 2000, his counsel informed the court

that there were no factual inaccuracies in the PSR. The court found that “at least 1.5

kilograms of base cocaine are attributable to Mr. Moore[.]” Appellant’s Br. Ex 4 at 5.

The court granted the government’s motion for a two-level downward departure, noting

that Moore’s recommended Guidelines range was now 168 to 210 months. The court

then sentenced Moore to 168 months of imprisonment. On February 23, 2004, the

district court granted the government’s motion pursuant to Federal Rule of Criminal

Procedure 35(b) to reduce Moore’s sentence because he had testified in the trial of his

drug supplier. Accordingly, the court reduced Moore’s sentence to 135 months of

imprisonment. 

Effective November 1, 2007, the United States Sentencing Commission

promulgated “Amendment 706,” amending the Guidelines to reduce the base offense

level for crack cocaine offenses by two offense levels. United States v. Poole, 538 F.3d

644, 645 (6th Cir. 2008). After the enactment of Amendment 706, a defendant now had

to be responsible for “4.5 [kilograms] or more of cocaine base,” an increase from 1.5

kilograms in 2000, in order to receive an offense level of 38; a finding of “at least 1.5

[kilograms] but less than 4.5 [kilograms] would mandate a Guidelines offense level of

36.” U.S.S.G. supp. to app. C, amend. 706 (Nov. 1, 2007), incorporated into U.S.S.G.

§ 2D1.1(c). Effective March 3, 2008, Amendment 706 was made retroactive. Poole,

538 F.3d at 645-46. On February 25, 2008, Moore filed a pro se motion for a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2), asserting that he was eligible for the

reduction under Amendment 706. 
No. 08-1699 United States v. Moore Page 4

On March 19, 2008, the United States Probation Office submitted a Sentence

Modification Report (“SMR”). In a section entitled “Original Guideline Calculation as

determined by the Court at Sentencing,” the SMR states: “The United States Sentencing

Commission Guideline for violation of 21 U.S.C. § 841(a)(1) . . . calls for a base offense

level of 38 for offenses involving at least 1.5 kilograms of cocaine base. According to

the Offense Conduct section, this defendant’s criminal activity involved at least 1.5

kilograms of cocaine base.” (SMR at 1.) In a subsequent section entitled “Amended

Guideline Calculation,” the SMR states: “The United States Sentencing Commission

Guideline for violation of 21 U.S.C. § 841(a)(1) . . . calls for a base offense level of 38

for offenses involving at least 4.5 kilograms of cocaine base. According to the Offense

Conduct section, this defendant’s criminal activity involved at least 4.5 kilograms of

cocaine base.” (SMR at 2.) Under “Public Safety Factors,” the SMR states that “Mr.

Moore’s involvement in cocaine sales was significant, being responsible for between 180

and 300 kilograms of cocaine.” (SMR at 3.) Finally, in a section entitled “The

defendant is ineligible for reduction in sentence for the following reason(s),” the SMR

includes a checked box next to “Quantity used to drive guideline exceeds 4,500

grams[.]” (SMR at 4.) On April 10, 2008, Moore submitted a response objecting to the

SMR. 

On April 25, 2008, the district court denied Moore’s motion in a two-paragraph

order, in which it stated:

. . . [T]he motion is denied because defendant is ineligible for

reduction in sentence because the quantity of drugs used to drive the

guidelines exceeds 4,500 grams.

Defendant argues that the amount of drugs in which he was

involved in the original offense conduct as reported in the Presentence

Report is “not exact,” “open to interpretation,” and “speculative at best”.

However, even assuming for sake of argument without conceding the

point, that defendant’s argument is correct, it is clear that defendant

raised no factual or legal objection to the Presentence Report. His

collateral challenge to the amount of drugs stated in the Presentence

Report almost 8 years after the fact, is too late. His failure to object at

the time of sentencing stands as an admission of the fact. United States

v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005). 
No. 08-1699 United States v. Moore Page 5

(ROA at 31.) 

Moore timely appealed the denial of his motion for a reduction. (ROA at 32.)

DISCUSSION

Standard of Review

“A motion for modification made under 18 U.S.C. § 3582(c)(2) is reviewed for

an abuse of discretion.” United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007). “A

district court abuses its discretion when it applies the incorrect legal standard,

misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.”

United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005). This Court should reverse the

district court’s decision only if it is “firmly convinced that a mistake has been made.”

McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir. 2005). “When reviewing the

district court’s application of the Sentencing Guidelines, we review the district court’s

factual findings for clear error and mixed questions of law and fact de novo.” United

States v. May, 568 F.3d 597, 604 (6th Cir. 2009).

Analysis

Moore argued before the district court that he was entitled to a reduction in his

sentence because the information contained in his initial PSR with respect to the quantity

of crack he distributed “is not exact and is open to interpretation.” (ROA at 14.) The

district court denied Moore’s motion for a modified sentence. The district court held

that Moore could not contest the SMR’s factual finding that he possessed more than 4.5

kilograms of crack cocaine because he did not object to the PSR at his original

sentencing, and was therefore bound by its facts. The district court correctly stated that

Moore is bound by the factual allegations in the PSR to which he did not object. See

United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005). However, Moore’s PSR

never stated that he was involved in possessing or distributing more than 4.5 kilograms

of crack; the PSR stated only that “for computational purposes, Moore is being held

responsible for at least 1.5 kilograms of cocaine base.” (PSR at 5.) 
No. 08-1699 United States v. Moore Page 6

Moreover, while the facts described in the offense conduct could have allowed

the district court to find by a preponderance of the evidence that Moore was responsible

for at least 4.5 kilograms of crack, the facts set forth in the PSR do not mandate such a

finding. The PSR stated that DEA agents observed Moore carry out one sale of 23.4

grams of crack. The PSR also noted that Moore and two other individuals pooled their

money to purchase crack and powder cocaine “in kilogram quantities” from a supplier

in Chicago, perhaps as often as two or three times per month. However, the PSR never

explains how much of the drugs they purchased was crack and how much was cocaine;

the PSR states that the two other individuals “estimated” that they purchased between

180 and 300 kilograms of cocaine, but did not disclose how much crack the team

purchased or cooked. Thus, by failing to object to any statement in the PSR at his

original sentencing, Moore did not admit that he was responsible for 4.5 kilograms of

crack; he could have agreed with all of the PSR’s factual allegations, while still

believing that the total amount of crack he possessed or distributed was less than 4.5

kilograms. Accordingly, the district court committed legal error by refusing to consider

Moore’s objection to the SMR. 

The only remaining question is whether the error was harmless–i.e., whether we

can be certain that the error did not affect the disposition of Moore’s motion. In the

analogous context of a district court’s procedural error at sentencing, the harmless error

standard “requires the party who wishes to defend the sentence to ‘persuade the court of

appeals that the district court would have imposed the same sentence absent the

erroneous factor.’” United States v. Anderson, 526 F.3d 319, 330 (6th Cir. 2008)

(quoting Williams v. United States, 503 U.S. 193, 203 (1992)); see also United States

v. Vandeberg, 201 F.3d 805, 812 (6th Cir. 2000) (“Remand is appropriate unless the

appellate court is convinced that the trial court would have imposed the same sentence

absent [its] misinterpretation of the guideline.”) (quotations and citation omitted). The

government cannot make the necessary showing to convince us that the district court

would have imposed the same sentence absent its error. The district court did not

indicate how it would have responded to Moore’s motion if it had understood that

Moore’s previous admissions did not bind its resolution of his motion. To be sure, the
No. 08-1699 United States v. Moore Page 7

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For this reason, we do not believe Moore’s subsequent testimony at the trial of his supplier that

he had picked up six to eight kilograms of cocaine base in Chicago means Moore is necessarily ineligible

for the reduction. Moore was sentenced on May 1, 2000, while his testimony was given in August 2000.

The district court should make its decision based on the information that was available at the time of

sentencing, although we acknowledge the judge has the discretion to deny Moore’s motion even if his

Guidelines range is lowered. See United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997) (“[A]

district court has the discretion to deny a section 3582(c)(2) motion, even if the retroactive amendment has

lowered the guideline range.”). 

district court could have made findings of fact based upon the PSR that would have

provided a basis for rejecting Moore’s motion on its merits. Yet the district court never

made any such findings, and because it never did so, we cannot know for certain that the

district court would have denied the motion.

The Guidelines advise that: 

[i]n determining whether, and to what extent, a reduction in the

defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this

policy statement is warranted, the court shall determine the amended

guideline range that would have been applicable to the defendant if

[Amendment 706] had been in effect at the time the defendant was

sentenced. In making such determination, the court shall substitute only

[Amendment 706] for the corresponding guideline provisions that were

applied when the defendant was sentenced and shall leave all other

guideline application decisions unaffected.

U.S.S.G. § 1B1.10(b)(1). 

None of the facts contained in Moore’s original PSR necessarily render Moore

ineligible for a reduction under Amendment 706. The PSR did not specifically link

Moore to 4.5 kilograms of crack; Moore never admitted to any facts beyond those in the

PSR; and the district court at sentencing did not adopt any more specific factual findings

regarding the quantity of crack Moore distributed. Determining whether Moore’s

Guidelines range would have been amended if Amendment 706 “had been in effect at

the time the defendant was sentenced” is impossible. U.S.S.G. § 1B1.10(b)(1).2

 The

PSR recommended that “for computational purposes” Moore be held responsible for “at

least 1.5 kilograms,” tracking the highest offense level at that time. (PSR at 5.) Had

Amendment 706 been in place, the PSR would likely have either computed Moore’s

drug quantity as “at least 4.5 kilograms” or, if the quantity was lower than 4.5 kilograms,

would have needed to be more precise than prefacing the stated quantity with “at least.”
No. 08-1699 United States v. Moore Page 8

In the absence of any previous factual finding that would have rendered Moore

ineligible, nothing in § 3582(c)(2) or the Guidelines precluded the district court from

granting Moore’s motion for a modification. Because the district court could have

granted Moore a sentence reduction by finding that the government never proved that

Moore was responsible for a quantity of crack greater than 4.5 kilograms, the district

court’s error was not harmless and constituted an abuse of discretion. See United States

v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005). 

Having found that the district court’s error was not harmless, we remand Moore’s

case back to the district court for a ruling on his motion. Because the district court

barred Moore from objecting to the recommended findings in the SMR, it never

considered his argument that the facts in the PSR do not support holding him responsible

for 4.5 kilograms of crack. See United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006).

(“When, on appeal, a defendant’s argument and supporting evidence presents an

arguably meritorious claim for a lesser sentence, but there is little to suggest that the

district court actually considered it, then remand may be appropriate.”). We do not agree

with Moore that the district court’s previous determination of “more than 1.5 kilograms”

means that it cannot also find more than 4.5 kilograms. Unlike the prior sentencing in

United States v. Adams, 104 F.3d 1028, 1030 (8th Cir. 1997), nothing in the record from

Moore’s initial sentencing indicates that the district judge made any specific

determination other than more than 1.5 kilograms. Since 4.5 kilograms is more than 1.5

kilograms, a new factual finding of the higher quantity is not inconsistent with the

court’s determination at Moore’s original sentencing. Remand is appropriate here not

because the district court must apply the reduction, but because no factual finding

definitively linked Moore with 4.5 kilograms of cocaine base. 

CONCLUSION

For the reasons set forth above, the district court’s denial of Moore’s sentencing

reduction motion is REVERSED, and the case is REMANDED for consideration of

Moore’s motion on the merits.