[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-15962

Non-Argument Calendar

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D.C. Docket No. 4:92-cr-04013-WS-CAS-3

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

EMERSON DAVIS, 

a.k.a. Mercy, 

a.k.a. John Calvin, 

a.k.a. Dred, 

a.k.a. Stanford Robinson, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(March 24, 2015)

Before HULL, ROSENBAUM and FAY, Circuit Judges.

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PER CURIAM: 

Emerson Davis appeals pro se the denial of his 18 U.S.C. § 3582(c)(2) 

motion for sentence reduction. We affirm. 

I. BACKGROUND

In 1996, a jury found Davis guilty of one count of conspiracy to possess with 

intent to distribute cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. 

§ 846, and numerous money-laundering counts, in violation of 18 U.S.C. 

§§ 1956(a)(1)(A)(i) and (a)(1)(B)(i). At sentencing, the district judge determined 

the presentence investigation report (“PSI”) “and any previously stated findings” 

were accurate. R. at 117. The judge sentenced Davis to life imprisonment on the 

drug count and to concurrent 20-year imprisonment terms for his moneylaundering counts of conviction. In a Statement of Reasons, attached to the 

sentence judgment, the district judge adopted the factual findings and Sentencing 

Guidelines application in the PSI. Davis filed a direct appeal; this court affirmed 

his conviction and sentence. United States v. Davis, 157 F.3d 908 (11th Cir. 1998) 

(table). 

Davis then filed a habeas petition under 28 U.S.C. § 2255, which the district 

judge denied. Although Davis appealed, we did not grant him a certificate of 

appealability. He filed other post-conviction motions that were not successful in 

the district court or our court.

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A. First Motion for Sentence Reduction

In 2008, Davis moved for reduction of his sentence under 18 U.S.C. § 

3582(c)(2), based on Amendment 706 to the Sentencing Guidelines, which 

lowered the base-offense level, when convicted defendants are found responsible 

for more than 1.5 but fewer than 4.5 kilograms of cocaine base. See U.S.S.G. App. 

C, amends. 706, 711, 713 (Supp. Mar. 3, 2008). The district judge denied his

motion. The judge reasoned Amendment 706 did not lower Davis’s offense level, 

because his PSI showed Davis had participated in a conspiracy that involved 

considerably more than 4.5 kilograms of crack cocaine. The judge further 

explained that he had adopted the factual findings in the PSI regarding drug 

amounts. 

In affirming the denial of Davis’s § 3582(c)(2) motion, we explained he was 

deemed to have admitted for sentencing purposes all facts in the PSI to which he 

did not object. United States v. Davis, 587 F.3d 1300, 1303-04 (11th Cir. 2009). 

Amendment 706 did not lower Davis’s base-offense level, because the facts in the 

PSI established that he was responsible for in excess of 4.5 kilograms of crack 

cocaine: 

By adopting the factual findings in the PSI that were 

deemed admitted by Davis when he failed to object to 

them, the sentencing court found Davis responsible for 

over eight kilograms of cocaine base. As the district 

court had already found Davis responsible for well over 

the 4.5 kilograms of cocaine base currently required to 

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score Davis’s original base offense level of 38, Davis 

was not eligible for a sentence reduction under 

Amendment 706.

Id. at 1304. 

B. Second Motion for Sentence Reduction 

In September 2013, Davis again moved for reduction of his sentence under 

§ 3582(c)(2), which is the subject of this appeal. He relied on Amendment 750 of 

the Sentencing Guidelines, which lowered the base-offense level for convicted 

defendants found responsible for less than 8.4 kilograms of crack cocaine.

1

 The 

district judge denied Davis’s § 3582(c)(2) motion and explained (1) the PSI 

showed Davis was responsible for well over 8.4 kilograms of crack cocaine, and 

(2) the judge had adopted the findings of Davis’s PSI regarding drug quantity at 

sentencing. The judge determined the record did not support Davis’s contention 

that some of the cocaine described in the PSI was powder, rather than crack 

cocaine. Davis appealed the denial of his second § 3582(c)(2) motion.

 1 Amendment 750 to the Sentencing Guidelines amended the drug quantity table in U.S.S.G. 

§ 2D1.1(c) to reduce offense levels in crack cocaine cases, when less than 8.4 kilograms is 

involved. See U.S.S.G. App. C, Amend. 750; United States v. Hamilton, 715 F.3d 328, 336 

(11th Cir. 2014) (“Amendment 750 raised to 8.4 kilograms (from 4.5 kilograms) the minimum 

amount of crack cocaine necessary to establish a base offense level of 38.”). It was made 

retroactive by Amendment 759, effective November 1, 2011. See U.S.S.G. App. C, Amend. 759. 

Davis argued in this § 3582(c)(2) proceeding in district court that the cocaine described in 

paragraph 72 of his PSI may have been powder, not crack, cocaine, because the PSI referenced 

“cocaine base” in paragraph 72.

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II. DISCUSSION

In this appeal, Davis pursues his argument that the district judge incorrectly 

held him responsible for a quantity of cocaine base in excess of 8.4 kilograms. He 

also maintains the substance in paragraph 722 of his PSI is stated incorrectly to be 

cocaine base instead of powder cocaine. While pro se complaints should be 

construed liberally, they nonetheless must contain factual allegations that “‘raise a 

right to relief above the speculative level.’” Saunders v. Duke, 766 F.3d 1262, 

1266 (11th Cir. 2014) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 

127 S. Ct. 1955, 1965 (2007)).

We review “a district court’s decision not to reduce a sentence pursuant to 

18 U.S.C. § 3582(c)(2) for abuse of discretion.” United States v. Moreno, 421 F.3d 

1217, 1218 (11th Cir. 2005) (per curiam). Our review of a district judge’s factual 

findings underlying legal conclusions is for clear error. Davis, 587 F.3d at 1303. 

We review de novo a judge’s legal conclusions concerning the Sentencing 

Guidelines and the scope of his authority under § 3582(c)(2). United States v. 

Liberse, 688 F.3d 1198, 1200 n.1 (11th Cir. 2012). 

 2 Paragraph 72 of Davis’s PSI states, after his release from state prison in 1990, Davis

looked for a place to sell crack cocaine. After deciding that the Marianna Garden Apartments in 

Marianna, Florida, was a good location, he made numerous trips from south Florida to Marianna 

to sell crack cocaine. Davis and Gregory Matthews, who worked for Davis selling crack cocaine 

in the Chattahoochee and Quincy areas of Florida, made at least 20 trips and transported between 

.25 and .5 kilograms of cocaine base on each trip.

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A district judge may modify a term of imprisonment based on a sentencing 

range that subsequently has been lowered by the Sentencing Commission. 18 

U.S.C. § 3582(c)(2). A reduction, however, must be “consistent with applicable 

policy statements issued by the Sentencing Commission.” Id. The applicable 

policy statement, found in U.S.S.G. § 1B1.10, provides that “[a] reduction in the 

defendant’s term of imprisonment . . . is not authorized under 18 U.S.C. 

§ 3582(c)(2) if . . . [the] amendment . . . does not have the effect of lowering the 

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). “[A] 

defendant, as the § 3582(c)(2) movant, bears the burden of establishing that a 

retroactive amendment has actually lowered his guideline range in his case.” 

United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2014). 

At the original sentencing, the district judge did not make a specific drugquantity finding beyond concluding the offense involved more than 1.5 kilograms 

of crack cocaine. In a subsequent § 3582(c)(2) proceeding, however, the judge

was entitled to find Davis was responsible for 8.4 kilograms or more of crack 

cocaine by referencing all of the documentation that was before him during the 

original sentencing. See Hamilton, 715 F.3d at 340-41. Therefore, Davis’s 

argument that the judge engaged in impermissible factual finding regarding the 

drug quantity is unavailing. 

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Similarly, Davis argues the district judge should not have relied upon facts 

in paragraph 663 of his PSI to which he objected in calculating the total drug 

quantity. Although Davis objected to paragraph 66 in his letter to the probation 

officer, the judge’s finding at sentencing the facts in the PSI were accurate

implicitly overruled that objection. Consequently, the judge’s reliance on the 

drugs described in paragraph 66 was not clear error. See Davis, 587 F.3d at 1303.

“Failure to object to allegations of fact in a PSI admits those facts for 

sentencing purposes.” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 

2006). Davis is foreclosed from his argument related to the drug quantity in 

paragraph 72 of his PSI, because he did not object prior to or at his sentencing; 

therefore, he is deemed to have admitted the facts in that paragraph for sentencing 

purposes. See Davis, 587 F.3d at 1303-04 (“Davis was deemed to have admitted, 

for sentencing purpose, the facts in the PSI he did not object to clearly and 

specifically at sentencing.” (citing Wade, 458 F.3d at 1277)). Moreover, we 

already have recognized “the sentencing court found Davis responsible for over 

eight kilograms of cocaine base[,] . . . . well over the 4.5 kilograms of cocaine base 

currently required to score Davis’s original base offense level of 38.” Id. at 1304. 

 3 Paragraph 66 of Davis’s PSI states he and Matthews traveled between south Florida and 

Chattahoochee 10 to 12 times from November 1987 and October 1988 and transported between 

.25 and .5 kilograms of crack cocaine on each trip. 

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 Davis’s argument, that paragraph 72’s reference to “cocaine base” may 

refer to powder cocaine rather than crack cocaine is meritless. Paragraph 72 of his 

PSI specifically states twice Davis was selling “crack cocaine.”4

 Therefore, the 

district judge’s denying Davis’s § 3582(c)(2) motion was neither clear error nor 

abuse of discretion. Davis has failed to show Amendment 750 had the effect of 

lowering his Guidelines range, see Hamilton, 715 F.3d at 337; the district judge 

properly denied his § 3582(c)(2) motion, based on Amendment 750.

5

AFFIRMED.

 4 To the extent Davis relies on DePierre v. United States, 131 S. Ct. 2225 (2011), his reliance is 

misplaced. DePierre holds that cocaine base “means not just ‘crack cocaine,’ but cocaine in its 

chemically basic form.” Id. at 2237. But paragraph 72 of Davis’s PSI states specifically Davis 

was selling crack cocaine. 

 

5 In his order denying Davis’s § 5382(c)(2) motion under Amendment 750, the district judge 

explained his Guidelines sentence would not be lowered:

Given the factual findings adopted by the court, Davis’s base offense level 

and guideline sentencing range would not be changed by Amendment 750. 

Indeed, under the amended guidelines, a drug weight in excess of 8.4 kilograms of 

crack cocaine produces a base offense level of 38. When his prior enhancements 

are factored in, Davis’s total offense level is level 44. The highest level on the 

current sentencing table is offense level 43, which has a guideline range of life, 

the same guideline range under which he was originally sentenced.

Because there has been no lowering of Davis’s guideline sentencing range, 

the court lacks authority to reduce Davis’s sentence. 

Order Denying Defendant’s Motion for Reduction in Sentence at 2-3 (emphasis added). 

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