### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

Ȭ 1216

U NITED S TATES OF A MERICA

, Plaintiff

Ȭ Appellee

,

v.

F RANKLIN B ROWN

, Defendant

Ȭ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 09 CR 671

— James B. Zagel

, Judge

.

____________________

A RGUED A UGUST 9, 2016

— D ECIDED S EPTEMBER 8, 2016

____________________

Before B AUER

, P OSNER

, and S YKES

, Circuit Judges

.

B AUER

, Circuit Judge

. Franklin Brown seeks to reduce his

292

Ȭ month drug

Ȭ distribution sentence based on the retroac

Ȭ

tive application of Amendment 782 to the federal sentencing

guidelines. See 18 U.S.C. § 3582(c). The district court denied

the motion, determining that Brown’s offense level was un

Ȭ

affected by the amendment. We affirm.2 No. 16

Ȭ 1216

Between 2003 and 2008, Brown purchased and distribut

Ȭ

ed millions of dollar’s worth of cocaine in the Chicago area.

United States v. Brown

, 726 F.3d 993, 995 (7th Cir. 2013). He

eventually was arrested by federal authorities and convicted

by a jury of conspiring to distribute at least five kilograms of

cocaine, see 21 U.S.C. §§ 846, 841(a)(1). Brown

, 726 F.3d

at 995–96.

At sentencing the parties disputed the quantity of cocaine

for which Brown was responsible. Brown argued that he

should be held responsible only for five kilograms, as the

jury had found, because, he asserted, that was the maximum

established by reliable evidence. The government sought to

hold him responsible for nearly 3000 kilograms, based on the

trial testimony of three cooperating witnesses about the

number of Brown’s transactions and the volume of drugs

sold in each. The district court determined without elabora

Ȭ

tion that 150 kilograms were “within the zone of this de

Ȭ

fendant’s responsibility,” and that this quantity had been

“proven and probably proven twice over.” The quantity cor

Ȭ responded to a base offense level of 38—the top base offense

level provided in the drug quantity table. See U.S.S.G.

§ 2D1.1(c)(1) (2011) (base offense level of 38 applies to

“150 KG or more of Cocaine”). The court added, “I think if

we had a level 40 or a level 42 on top of that, it probably

makes that figure, too.” Combined with a criminal history

category of III, Brown’s total offense level of 38 (he received

no adjustments) yielded a guidelines range of 292 to 360

months. The court sentenced him to the bottom of that

range. Brown appealed his conviction—but not the court’s

drug quantity calculation—and we affirmed. Brown

, 726 F.3d

993.No. 16

Ȭ 1216 3

Three years after he was sentenced, Brown filed a motion

under 18 U.S.C. § 3582(c)(2) to reduce his sentence under

Amendment 782. That amendment raised the amount of co

Ȭ

caine necessary to qualify for a base offense level of 38 from

150 kilograms to 450 kilograms. See U.S.S.G. § 1B1.10(d) &

Supp. to App. C, amends. 782, 788 (2014). The government

maintained that Brown’s base offense level was unchanged

by the amendment because he was responsible for well over

450 kilograms based on witness testimony about his drug

transactions. In reply Brown noted that the court had not

found him accountable for a quantity more specific than

150 kilograms or more of cocaine, and asked the court to

make a finding about the actual drug weight in order to de

Ȭ

termine whether he qualified for a sentence reduction under

Amendment 782. If the court found him responsible for less

than 450 kilograms, the amended guideline range would be

235 to 293 months (down from 292 to 360) and Brown asked

the court to resentence him to the 240 month statutory min

Ȭ

imum.

The district court declined to disturb its guideline calcu

Ȭ

lation and denied the motion:ȱȱ

The problem for Brown is that his offense level

is not, and has not, been lowered. He has an of

Ȭ

fense level of 38, and this level applies under

both the older and the newer revised guide

Ȭ

lines. The continuing existence of the level of

38 is the result of the very large quantities of

cocaine involved. I found that Brown was

clearly responsible for 150 kilograms of co

Ȭ

caine. Indeed, I thought the quantities might

have been higher, but a level 40 or 42 was ap

Ȭ4 No. 16

Ȭ 1216

propriate as well if the 2012 guidelines provid

Ȭ

ed for levels of 40 to 42. I thought there was no

way to go further than level 38. There was evi

Ȭ

dence that more than 450 kilograms was part

of his responsibility.

As an alternative basis for denying Brown’s motion, the

court added that he was sentenced under the career offender

guideline and therefore ineligible for any sentence reduction

under the amendment.

Brown argues that the district court erred in concluding

that Amendment 782 does not lower his offense level. He

contends that the district court failed to make a drug

Ȭ quantity finding more specific than his being responsible for

“150 kilograms or more” of cocaine, and as a result could not

have evaluated whether he was eligible for a reduction un

Ȭ

der § 3582(c)(2).

When a retroactive amendment to the guidelines alters

the relevant drug

Ȭ quantity thresholds for determining the

base offense level, a district court in ruling on a § 3582(c) mo

Ȭ

tion may need to make new findings—findings that are sup

Ȭ ported by the record and not inconsistent with those made

in the original sentencing determination. United States v.

Hall

, 600 F.3d 872, 876 (7th Cir. 2010).ȱȱ

The district court’s order is cursory but it did not commit

reversible error in denying Brown’s motion. The court de

Ȭ

nied Brown’s motion because the amendment did not lower

his offense level, noting that “there was evidence that more

than 450 kilograms was part of his responsibility.” This

statement—along with the court’s comment at sentencing

that the very large quantities of cocaine warranted a higherNo. 16

Ȭ 1216 5

base offense level than what was authorized under the

guidelines—reflects the court’s determination that Brown

was responsible for 450 kilograms or more of cocaine. While

the district court could have expressed its drug

Ȭ quantity

finding more clearly, remand is not necessary because the

outcome of such proceedings would be clear and remand

futile. See United States v. Hallahan

, 756 F.3d 962, 971 (7th Cir.

2014); United States v. Purchess, 107 F.3d 1261, 1269 (7th Cir.

1997). As the government points out, the record confirms

that Brown was responsible for 450 kilograms: witnesses tes

Ȭ

tified to delivering thousands of kilograms of cocaine and

receiving millions of dollars as payments. Brown

, 726 F.3d

at 996.

We close by noting that the court’s alternative basis for

denying the motion—that Brown was sentenced under the

career offender guideline—was incorrect. But because the

court properly concluded Brown’s offense level was un

Ȭ changed by the amendment, this error was harmless.

See United States v. Clayton

, 811 F.3d 918, 921 (7th Cir. 2016)

(applying harmless error to decision on § 3582(c)(2) motion).

AFFIRMED.6 No. 16

‐ 1216

P OSNER

, Circuit Judge

, dissenting. In 2012 the

defendant was sentenced to 292 months in prison after

being convicted of conspiring to distribute five

kilograms of cocaine. At sentencing the government

argued that he had sold not five but 2942 kilograms; the

government based the argument on testimony from

three cooperating witnesses about the number of the

defendant’s sales and the amount of drugs in each

sale. The district judge stated summarily that 150

kilograms were “within the zone of this defendant’s

responsibility,” this quantity having been “proven and

probably proven twice over.” That determination,

coupled with the defendant’s criminal history, made

his base offense level 38, yielding a guidelines range of

292 to 365 months; the sentence imposed was thus at

the bottom of the range.

Judgment and sentence were affirmed in United

States v. Brown

, 726 F.3d 993, 995 (7th Cir. 2013). But

three years after the defendant was sentenced, he filed a

motion to reduce his sentence in reliance on

Amendment 782 to the guidelines, which had raised

the amount of cocaine required for a base offense level

of 38 from 150 to 450 kilograms. He pointed out that the

judge had not found him accountable for any quantity

of cocaine other than 150 kilograms, and he asked the

judge to make a finding about the actual drug weight

in order to determine whether his guideline range had

been reduced by Amendment 782. For unless the

weight was at least 450 kilograms, his guideline range

would fall from 292 to 365 months to 235 to 293 months

(actually 240 months, the statutory minimum, to 293).

He asked that he be resentenced to 240 months. The

judge refused, adhering to his original sentence of 292

months, primarily on the ground that “there wasNo. 16

‐ 1216 7

evidence that more than 450 kilograms was part of his

responsibility.” But he offered no substantiation for this

conclusion. He described neither the evidence he

relied on to support that finding nor the method he’d

used to calculate the weight of the drugs from that

evidence.

It would be one thing had the cooperating witnesses’

testimony about the tons of cocaine that the defendant

allegedly had distributed been uncontradicted, but it

wasn’t; the defendant’s lawyer argued to the judge that

“when you look at

... the two [cooperating witnesses]

that had testified to giving drugs to my client, there’s

really only one deal that had any specifics, and that was

... the last deal of the conspiracy and that was 57

kilos.” The judge did not engage the lawyers, or

indeed so much as mention their argument or the

evidence concerning those two cooperating witnesses

on which the argument rested. As a result we have no

indication of the judge’s thought process in finding the

defendant responsible for more than 450 kilograms of

cocaine.

A sentencing judge must “provide ‘some

description of the reliable evidence used to support

the finding and the method used to calculate it,’”

United States v. Garrett

, 757 F.3d 560, 572–73 (7th Cir.

2014), quoting United States v. Clay

‐ brooks

, 729 F.3d 699,

707 (7th Cir. 2013). These cases involve original

sentencing, but the principle they enunciate is, as held

in such cases as United States v. Goings

, 407 F. App’x

967, 969 (7th Cir. 2011), and United States v. Marion

, 590

F.3d 475, 477–78 (7th Cir. 2009), equally applicable to a

resentencing, as in this case.

We are mindful that the judge offered an alternative,

unrelated basis for denying the defendant’s motion:8 No. 16

‐ 1216

that the defendant had been properly sentenced

under a different guideline, the guideline for career

offenders. But as the government concedes, the

defendant was not sentenced under that guideline. So

the judge had no alternative to the 450 kilogram

finding as a basis for the defendant’s motion. But he

didn’t know that, and for all we know his mistaken

belief in an alternative ground for adhering to his

original sentence made him all the more casual in

estimating drug levels.