# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 15, 2009

Decided January 4, 2010

Before

TERENCE T. EVANS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 08

‐ 2749

UNITED STATES OF AMERICA, Appeal from the United States District

Plaintiff

‐ Appellee , Court for the Northern District of Indiana,

Hammond Division.

.

v. No. 2:00 CR 105

EDDIE R. NALLS, JR., James T. Moody,

Defendant

‐ Appellant

. Judge.

O R D E R

Eddie Nalls pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a). After

the Sentencing Commission retroactively reduced the offense level for most crack offenses,

Nalls asked the district court to reduce his prison sentence. See 18 U.S.C. § 3582(c). The

court refused on the ground that Nalls had sold more than 4.5 kilograms of crack, and thus

could not benefit from the amendments. Nalls appeals, arguing that the district court

conducted improper factfinding to determine how much crack he had sold. We affirm.

For approximately one year Nalls and several others sold crack for the Bronx Street

Gang in Gary, Indiana. In conjunction with the government’s investigation of this activity, 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 2749 Page 2

Nalls decided to cooperate by preparing a statement describing the operation and his

involvement. Following Nalls’s guilty plea, the probation officer incorporated this

cooperation statement into Nalls’s presentence investigation report. The PSR described the

operation of three crack houses in Gary, Indiana; each house sold approximately 84, 28, and

672 ounces of crack per month, respectively. According to the PSR, Nalls functioned as an

overseer at two of the houses and worked regular shifts at the third. Based on this

information as well as Nalls’s statements regarding the time he spent at each house, the

probation officer calculated that “[a]t the very least [Nalls] distributed or helped to

distribute 59.53 kilograms of crack cocaine.”

In April 2003 the court conducted Nalls’s sentencing hearing. Nalls declined the

opportunity to challenge the PSR, so the court adopted the factual findings and guidelines

calculations it contained without any further discussion of the exact drug quantity

attributable to Nalls. The court found that Nalls was responsible for selling more than 1.5

kilograms of crack cocaine, and thus he was subject to the highest base offense level under

U.S.S.G. § 2D1.1. After an adjustment to account for cooperation with the government, see

U.S.S.G. § 5K1.1, the court sentenced Nalls to 151 months’ imprisonment.

In November 2007 the Sentencing Commission modified U.S.S.G. § 2D1.1, reducing

the base offense level for most crack offenses by two levels and made that change

retroactive. See U.S.S.G. supp. to app. C, 226

‐ 31, 253 (2009) (Amendments 706 and 713).

When Nalls was sentenced, offenses involving 1.5 kilograms or more of crack cocaine were

assigned the highest possible base offense level of 38. Under the amended guidelines,

however, only offenses involving 4.5 kilograms or more of crack were assigned an offense

level of 38. See U.S.S.G. § 2D1.1(c); United States v. Hall

, 582 F.3d 816, 817 (7th Cir. 2009).

Shortly after the amendment was enacted, Nalls asked the district court to reduce his

sentence under 18 U.S.C. § 3582(c), which allows a defendant to seek a sentence reduction if

the sentence was based on a guidelines range that has subsequently been lowered. See

U.S.S.G. § 1B1.10(a)(2)(B) (policy statement); United States v. Lawrence

, 535 F.3d 631, 634 (7th

Cir. 2008). The court denied the motion, finding Nalls ineligible for a sentence reduction

because he was responsible for selling more than 4.5 kilograms of crack and therefore

subject to the same total offense level under the amended guidelines.

On appeal Nalls challenges the district court’s conclusion that he was responsible for

distributing more than 4.5 kilograms of crack. He argues that at sentencing he was found to

be responsible for the distribution of only 1.5 kilograms and that the court conducted

impermissible factfinding to hold him responsible for more than 4.5 kilograms. Specifically,

he faults the district court for relying on the cumulative drug quantities in the PSR, whichNo. 08

‐ 2749 Page 3

1 Nalls also attempts to undermine the PSR by suggesting that the statements from

the cooperation agreement constitute protected information. See U.S.S.G. § 1B1.8. By

asserting this claim in a footnote and failing to develop it, Nalls has waived it. See United

States v. White

, 879 F.2d 1509, 1513 (7th Cir. 1989). Moreover, even if the argument had been

properly developed, it would still be waived because Nalls declined to exercise his

opportunity to challenge the PSR when he was originally sentenced. trace back to the three houses where Nalls and other gang members collectively sold crack

cocaine, but do not reflect the quantities Nalls individually sold.

Nalls is correct that a § 3582(c) motion may not be decided by relying on new factual

findings that are inconsistent with those made at the original sentencing, see United States v.

Woods

, 581 F.3d 531, 538 (7th Cir. 2009); see also United States v. Armstrong

, 347 F.3d 905, 909

(11th Cir. 2003); United States v. Adams

, 104 F.3d 1028, 1030

‐ 31 (8th Cir. 1997), but here the

district court considered no such facts. Instead, the court relied on the factual findings in

the very PSR that formed the basis for Nalls’s original sentence. These findings, to which

there were no objections, adequately support a conclusion that Nalls was responsible for

distributing more than 4.5 kilograms of crack cocaine. For more than a year, Nalls and

other gang members ran three crack houses in Gary, Indiana, and through these operations,

Nalls “distributed or helped to distribute 59.53 kilograms of crack cocaine.” Although the

PSR did not specify how much of the 59.53 kilograms Nalls individually sold, the court did

not abuse its discretion—given the substantial quantities described in the PSR and Nalls’s

role as an overseer—in concluding that Nalls’s contribution far exceeded the 4.5 kilogram

threshold. See Woods, 581 F.3d at 533, 539 (denying § 3582(c) motion after finding that

defendants distributed more than 4.5 kilograms of crack cocaine even though PSR did not

attribute specific quantities to each defendant).

Nalls’s attempt to undermine the PSR itself also falls short. He argues that, by

describing drug quantities attributable to the three houses, the PSR does not hold him

individually accountable for all the drug sales described in the PSR. 1 But Nalls waived his

right to challenge the factual bases for his sentence by failing to challenge them at

sentencing and by pleading guilty. See, e.g.

, United States v. Staples

, 202 F.3d 992, 995 (7th

Cir. 2000). In any event this argument is also factually erroneous: the PSR states that Nalls

“distributed or helped to distribute ”crack in quantities far exceeding the 4.5 kilogram

threshold. That he only “helped to distribute” some of these drugs does not make that

conduct irrelevant to his sentence. See U.S.S.G. § 1B1.3(a)(1); United States v. Coleman

, 179

F.3d 1056, 1063 (7th Cir. 1999)

.No. 08

‐ 2749 Page 4

Finally, we deny counsel’s request at argument that we hold this case in abeyance

pending the Supreme Court’s consideration of United States v. Dillon

, 572 F.3d 146 (3d Cir.),

cert. granted No. 09

‐ 6338, 2009 WL 2899562 ( 2009). The question certified in Dillon was

whether a sentencing court, after determining that a defendant may be resentenced under

§ 3582(c), has discretion to sentence below the amended guidelines range. But Nalls was

not eligible for a reduction under § 3582(c) because he sold more than 4.5 kilograms of

crack. See United States v. Forman

, 553 F.3d 585, 590 (7th Cir. 2009), and Dillon will not

disturb this conclusion. Because Nalls would have no opportunity to seek a discretionary

sentence below the amended guidelines range, Dillon will not affect this case.

Nalls’s uncontested PSR demonstrates that he was responsible for distributing well

over 4.5 kilograms of crack cocaine, and he is thus ineligible for a reduced sentence under

§ 3582(c). The judgment of the district court is AFFIRMED.