United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2013 Decided July 12, 2013

No. 12-3003

UNITED STATES OF AMERICA,

APPELLEE

v.

ANDREW KENNEDY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:89-cr-00020-2)

Tony Axam Jr., Assistant Federal Public Defender, 

argued the cause for appellant. With him on the briefs was 

A.J. Kramer, Federal Public Defender.

Jay Apperson, Assistant U.S. Attorney, argued the cause 

for appellee. With him on the brief were Ronald C. Machen 

Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy 

Curt, and Robert Okun, Assistant U.S. Attorneys.

Before: HENDERSON, GRIFFITH, and KAVANAUGH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: More than twenty years after his 

conviction for trafficking crack cocaine, Andrew Kennedy

now claims, for the first time, that the judge who sentenced 

him failed to determine the quantity of drugs he possessed.

Kennedy raises this claim in a proceeding to reduce his 

sentence under 18 U.S.C. § 3582(c)(2). We conclude that the 

district court did not err when it refused to revisit this settled 

factual finding.

I

Kennedy directed a crack cocaine trafficking ring in 

Washington, D.C., in the late 1980s. A jury convicted him on 

counts related to the possession and distribution of crack. 

After trial, Probation Services prepared a Pre-Sentence 

Investigation Report (PSR) based on “the seized and analyzed 

cocaine base (crack)” which “total[ed] 380.92 grams.” This 

amount falls near the middle of the then-applicable drug 

quantity range (150 to 499 grams) that yielded a base offense 

level of 34 (to which was added a 4 point upward 

enhancement because Kennedy was the leader of a 

conspiracy) and resulted in a sentencing range of 292-365 

months. At the sentencing hearing, Kennedy’s counsel 

“conceded that the calculation . . . is correct in terms of . . . 

the amount of drugs involved in the case.” Tr. 2/21/90 at 5.

When Kennedy spoke, he maintained his innocence of the 

crimes, but did not challenge the drug quantity in the PSR. 

The district court sentenced Kennedy to 328 months’ 

imprisonment, “about in the middle of the guidelines.” Tr. 

2/21/90 at 16.

Kennedy appealed his conviction and sentence to this 

court arguing that there was insufficient evidence to sustain 

his conviction and the leadership enhancement. Kennedy did 
3

not challenge the drug quantity finding that informed his base 

offense level. See United States v. Kennedy, No. 90-3037, 

1991 WL 183716, at *1 (D.C. Cir. Sept. 16, 1991) 

(unpublished) (per curiam). We affirmed the district court and 

noted that “[i]n imposing the sentence, the District Court 

appears to have relied on the presentence report.” Id.

In November 2007, the Sentencing Commission lowered 

the base offense level for crack cocaine offenses, UNITED 

STATES SENTENCING GUIDELINES MANUAL app. C, amend. 

706, 711 (Nov. 1, 2007), and later made that change 

retroactive. UNITED STATES SENTENCING GUIDELINES 

MANUAL supp. to app. C, amend. 713 (Nov. 1, 2009). The 

district court granted Kennedy’s § 3582(c)(2) motion, 

lowering his offense level to 36 and reducing his sentence to 

293 months.

In November 2011, the Sentencing Commission again 

retroactively reduced the Guidelines ranges for crack cocaine 

offenses. See UNITED STATES SENTENCING GUIDELINES 

MANUAL supp. to app. C, amend. 750 (Nov. 1, 2011);

U.S.S.G. at § 2D1.1 (2012). Once again, Kennedy moved to 

reduce his sentence under § 3582(c)(2). But this time, 

Kennedy took a new tack. Kennedy argued that the sentencing 

court had never made a finding on the quantity of drugs he 

possessed. The district court denied his motion, finding as a 

matter of fact that the sentencing judge had implicitly adopted 

the drug quantity, 380.92 grams, reported in the PSR. 

Kennedy now appeals.

We have jurisdiction under 28 U.S.C. § 1291 and review 

the district court’s factual finding for clear error. 18 U.S.C.

§ 3742(e). We review the district court’s decision to deny 

Kennedy’s § 3582(c)(2) motion for abuse of discretion. 
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United States v. Lafayette, 585 F.3d 435, 439 (D.C. Cir. 

2009).

II

District courts retain broad authority to control

§ 3582(c)(2) proceedings. United States v. Hall, 600 F.3d 872, 

875 (7th Cir. 2010) (stating that “[t]he district court has 

substantial discretion in adjudicating sentence-reduction 

motions under § 3582(c)(2) and our review is deferential” 

(emphasis added) (citation omitted)); United States v. Woods, 

581 F.3d 531, 539 (7th Cir. 2009) (stating that “[d]istrict 

courts have broad discretion in how to adjudicate 

§ 3582(c)(2) proceeding[s]” (emphasis added)). And as the 

Supreme Court has observed, § 3582(c)(2) hearings are 

“limited [in] nature,” Dillon v. United States, __ U.S. __, 130 

S. Ct. 2683, 2691 (2010), and are not “plenary resentencing 

proceedings.” Id. at 2692. A § 3582(c)(2) hearing is not a 

license for the defendant to re-litigate his sentence wholesale 

or challenge previously adjudicated aspects of his conviction. 

A § 3582(c)(2) proceeding is, instead, a straightforward

application of changed sentencing law to established facts. 

See id. at 2691-92. As such, the district court may decline to 

reopen settled factual matters challenged in a § 3582(c)(2)

motion. See id. at 2692.

The district court found that the sentencing judge acted 

“in accordance with the presentence report in that guideline 

range, which by inference means that he accepted the amount 

of – the quantity of drugs applicable to [the defendant] as 

appropriate. . . . [T]he finding is consistent with the findings 

made in the original sentencing determination . . . .” 1/13/12 

Tr. at 27-29. Examining the transcript of the sentencing 

hearing, the district court reached the only plausible 

conclusion: although the sentencing court did not state on the 
5

record that it was adopting the drug quantity recommendation 

included in the PSR, it implicitly adopted that

recommendation by determining a base offense level of 34. 

That finding by the § 3582(c)(2) court was not clearly 

erroneous. In fact, we previously said as much on direct 

appeal. Kennedy, 1991 WL 183716, at *1 (“In imposing the 

sentence, the District Court appears to have relied on the 

presentence report.”). And, as the § 3582(c)(2) court surely 

knew, no explicit finding by the original sentencing court was 

needed, because defense counsel did not object at sentencing 

to the drug quantity found in the PSR. See United States v. 

Pinnick, 47 F.3d 434, 437 (D.C. Cir. 1995) (stating that “a 

sentencing court may rely on undisputed facts in a presentence 

report”). Quite the contrary: defense counsel explicitly 

conceded that the drug quantity was correct. Where a 

defendant does not challenge the facts in a PSR, the district 

court does not err in adopting those facts. Id. at 438.

Reviewing the record in the § 3582(c)(2) hearing, the district 

court determined that the sentencing court implicitly adopted 

the PSR. That finding was not clearly erroneous.∗

Notwithstanding his counsel’s concession, Kennedy now

claims that he did challenge the drug quantity in the PSR at 

sentencing. Kennedy bases his argument on statements he 

made during the hearing, in which he maintained that his drug 

trafficking was less extensive than what the government had 

proven at trial. But Kennedy’s protestations of limited 

culpability fall far short of the “clear and specific objection”

we require “to place a factual assertion [contained in the PSR] 

 ∗ Because we hold that it was not clearly erroneous for the 

district court to find that the sentencing court implicitly adopted the 

drug quantity in the PSR, we need not consider the district court’s 

alternative holding, namely, a finding of drug quantity in the first 

instance.
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in dispute.” Pinnick, 47 F.3d at 437-38. A general challenge to 

Kennedy’s conviction is not a specific challenge to the 

quantity of drugs for which the PSR indicated he was 

responsible. The sentencing court did not – and need not –

treat it as such.

Kennedy had the opportunity to challenge the facts 

contained in the PSR at sentencing, and he declined to do so. 

He again declined to raise the argument on direct appeal. The 

district court’s finding that the drug quantity contained in the 

PSR was implicitly adopted by the sentencing court was not 

clear error, and the decision to deny the § 3582(c)(2) motion

was not an abuse of discretion. “‘A § 3582(c)(2) motion is not 

the appropriate vehicle for raising issues related to the original 

sentencing.’ Those are arguments for direct appeal and are not 

cognizable under § 3582(c)(2).” United States v. Evans, 587 

F.3d 667, 674 (5th Cir. 2009) (quoting United States v. Shaw,

30 F.3d 26, 29 (5th Cir. 1994)) (alteration omitted).

Other circuits have likewise declined to allow defendants 

to reopen the issue of drug quantity in these hearings. See 

United States v. Ortega, 464 F. App’x 202, 203 (5th Cir. 

2010) (stating that “[the defendant] may not relitigate the 

issue of drug quantity in a § 3582(c)(2) motion.”); United 

States v. Williams, 290 F. App’x 133, 136 (10th Cir. 2008) 

(stating that “[the defendant] cannot use § 3582(c)(2) to 

collaterally attack his sentence [by challenging drug 

quantity].”); see also United States v. Hernandez, 645 F.3d 

709, 712 (5th Cir. 2011) (holding that the district court did not 

abuse its discretion in refusing to grant an evidentiary hearing 

on drug quantity raised for first time in a § 3582(c)(2)

motion). It was no abuse of discretion for the district court to 

refuse to do so here.
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IV

For the foregoing reasons, we affirm the district court’s 

denial of Kennedy’s motion to reduce his sentence.

So ordered.