FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

EMILIO HUARACHA RODRIGUEZ,

Defendant-Appellee.

No. 17-10233

D.C. No.

2:11-cr-00135-

JAM-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted September 7, 2018

San Francisco, California

Filed April 24, 2019

Before: Marsha S. Berzon and Michelle T. Friedland, 

Circuit Judges, and Kathleen Cardone,* District Judge.

Opinion by Judge Berzon;

Dissent by Judge Cardone

 * The Honorable Kathleen Cardone, United States District Judge for 

the Western District of Texas, sitting by designation.
2 UNITED STATES V. RODRIGUEZ

SUMMARY**

Criminal Law

The panel reversed the district court’s order granting 

Emilio Huarache Rodriguez’s motion pursuant to 18 U.S.C. 

§ 3582(c)(2) for reduction of sentence in light of Sentencing 

Guidelines Amendment 782, and remanded for 

supplemental drug-quantity findings.

The panel clarified that, under United States v. MercadoMoreno, 869 F.3d 942 (9th Cir. 2017), drug quantities in an 

adopted presentence investigation report, without an explicit 

and specific drug quantity finding by the original sentencing 

judge, are not binding in § 3582(c)(2) proceedings. The 

panel held that because the judge at Rodriguez’s initial 

sentencing did not make a specific finding of drug quantity, 

and Rodriguez did not admit to a specific drug quantity 

beyond the quantity necessary to determine the appropriate 

Guidelines range, there were no binding drug quantity 

findings or admissions that bound the district court at the 

later § 3582(c)(2) proceedings.

The panel held that if, as here, the district court at the 

original sentencing did not make a specific drug quantity 

finding, the proper course is for the district court to engage 

in supplemental fact-finding to determine whether the 

defendant is eligible for a sentence reduction under 

§ 3582(c)(2). The panel therefore remanded to the district 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. RODRIGUEZ 3

court for supplemental findings of drug quantity and, if 

appropriate, resentencing.

District Judge Cardone dissented because she believes 

the district court made a sufficiently specific finding as to 

drug quantity during Rodriguez’s original sentencing 

hearing that renders him ineligible for a reduced sentence 

under § 3582(c)(2).

COUNSEL

Jason Hitt (argued), Assistant United States Attorney; Camil 

A. Skipper, Appellate Chief; McGregor Scott, United States 

Attorney; United States Attorney's Office, Sacramento, 

California; for Plaintiff-Appellant.

John P. Balazs (argued), Sacramento, California, for 

Defendant-Appellee.
4 UNITED STATES V. RODRIGUEZ

OPINION

BERZON, Circuit Judge:

Our central question is whether uncontested drug 

quantities in a court-adopted presentence investigation 

report (“PSR”) constitute specific drug quantity findings that 

bind district courts in subsequent 18 U.S.C. § 3582(c)(2) 

sentence reduction proceedings. We clarify that, without an 

explicit and specific drug quantity finding by the original 

sentencing judge, drug quantities in an adopted PSR are not 

binding in § 3582(c)(2) proceedings.

We therefore reverse and remand to the district court for 

supplemental findings of drug quantity and, if appropriate, 

resentencing.

I

A

We begin with the statutory framework for deciding 

sentence reduction motions. Ordinarily, a federal court “may 

not modify a term of imprisonment once it has been 

imposed.” 18 U.S.C. § 3582(c). Congress has, however, 

provided a narrow exception to this rule of finality. A court 

may modify a defendant’s term of imprisonment if the 

defendant was “sentenced . . . based on a sentencing range 

that has subsequently been lowered” pursuant to a 

retroactive amendment to the U.S. Sentencing Guidelines 

(“Guidelines”). Id. The purpose of this limited exception is 

to provide the defendant with “the benefit of later enacted 

adjustments to the judgments reflected in the [Sentencing] 

Guidelines” without engaging in plenary resentencing 

proceedings. United States v. Mercado-Moreno, 869 F.3d 
UNITED STATES V. RODRIGUEZ 5

942, 948 (9th Cir. 2017) (alteration in original) (quoting 

Dillon v. United States, 560 U.S. 817, 828 (2010)).

Section 3582(c)(2) sets forth a two-step inquiry for 

determining whether a defendant is entitled to sentence 

reduction. At the first step, the reviewing district court 

decides eligibility by determining whether a reduction is 

consistent with U.S. Sentencing Guidelines Manual 

§ 1B1.10, the policy statement that implements 

§ 3582(c)(2). Dillon, 560 U.S. at 826; see also 18 U.S.C. 

§ 3582(c)(2). Section 1B1.10 permits a reduction if, but only 

if, the amendment has the “effect of lowering the defendant’s 

applicable [G]uideline[s] range.” U.S. Sentencing 

Guidelines Manual (“U.S.S.G.”) § 1B1.10(a)(2)(B). A court 

determines whether the retroactive amendment lowered the 

defendant’s Guidelines range by calculating the “amended 

[G]uideline[s] range that would have been applicable to the 

defendant if the [relevant amendment] to the [G]uidelines 

. . . had been in effect at the time the defendant was 

sentenced.” Id. § 1B1.10(b)(1). Only “the relevant 

amendment for the ‘corresponding guideline provisions . . .

applied when the defendant was sentenced’” may be 

considered in the first step of the analysis, and the court 

“must ‘leave all other guideline application decisions 

unaffected.’” Mercado-Moreno, 869 F.3d at 949 (quoting 

U.S.S.G. § 1B1.10(b)(1)).

A district court is generally prohibited from reducing a 

sentence if the reduction would place the defendant’s term 

of imprisonment below the lower end of the amended 

Guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A). The only 

exception is when the defendant’s original term of 

imprisonment is below the Guidelines range because he or 

she received a reduction for substantially assisting 
6 UNITED STATES V. RODRIGUEZ

authorities and the revised term is comparably below the 

amended Guidelines range. See id. at § 1B1.10(b)(2)(B).1

At the second step, the court must consider all applicable 

18 U.S.C. § 3553(a) factors and determine whether, in its 

discretion, “the authorized reduction is warranted, either in 

whole or in part.” Dillon, 560 U.S. at 826; see also 18 U.S.C. 

§ 3582(c)(2).2 But the court’s consideration of the § 3553(a) 

factors may not “serve to transform the proceedings under 

§ 3582(c)(2) into plenary resentencing proceedings.” Dillon, 

560 U.S. at 827.

B

The Guidelines use a drug quantity table, based on drug 

type and weight, to establish the base offense levels for drugrelated offenses, with a maximum of level 38. See U.S.S.G. 

§ 2D1.1(c). Amendment 782, adopted by the U.S. 

Sentencing Commission (“Commission”) in 2014, modified 

the drug quantity table by reducing the base offense level for 

most drugs and quantities by two levels. U.S.S.G. supp. app. 

C. amend. 782 (Nov. 1, 2014). Shortly thereafter, the 

Commission made Amendment 782 retroactive for 

 1 U.S.S.G. § 1B1.10(b)(2) is being challenged in a number of 

pending cases, see, e.g., United States v. Hernandez-Martinez, No. 15-

30309, et al. (9th Cir. Mar. 7, 2019), but is not challenged here.

2 Section 3553(a)’s sentencing factors are “the nature and 

circumstances of the offense and the history and characteristics of the 

defendant”; the seriousness of the offense; respect for the law; just 

punishment; the values of deterrence; protection of the public; the 

opportunity for educational or vocational training; medical care or other 

treatment; the kinds of sentences available; the sentencing range; 

Guidelines policy statements; the avoidance of unwarranted sentence 

disparities; and the need for restitution to victims.
UNITED STATES V. RODRIGUEZ 7

defendants, like Rodriguez, who had been sentenced before 

the change to the Guidelines. U.S.S.G. supp. app. C amend. 

788 (Nov. 1, 2014). Pursuant to Amendment 782, the 

quantity of actual methamphetamine that triggers the 

maximum base offense level of 38 moved from 1.5 

kilograms to 4.5 kilograms. See U.S.S.G. § 2D1.1(a)(5), 

(c)(1).3

II

A

In 2011, the California Highway Patrol conducted a 

traffic stop of Emilio Huaracha Rodriguez, a suspected drug 

trafficker, in Sacramento County. A drug detection dog 

alerted to Rodriguez’s vehicle, and a search revealed 11 

pounds (roughly 4.9 kilograms or 4,989 grams) of 

methamphetamine. After a search of Rodriguez’s vehicle, 

law enforcement officers obtained a search warrant for his 

apartment. There, the officers found an additional quantity 

of methamphetamine and various types of drug 

paraphernalia. Rodriguez was charged with one count of 

possession with intent to distribute over 500 grams of 

methamphetamine mixture or substance, in violation of 21 

U.S.C. § 841(a)(1).

 3 For certain types of drugs, such as methamphetamine, the drug 

quantity table permits a finding of either the entire weight of the mixture 

or substance containing the drug or the actual weight of the drug itself 

contained in a mixture or substance. See U.S.S.G. § 2D1.1(c) notes to 

drug quantity table (B). The sentencing judge is required to use 

whichever quantity corresponds to the higher offense level. Id. At the 

time of Rodriguez’s sentencing, base offense level 38 was triggered by a 

finding of either: (1) 15 kilograms or more of methamphetamine 

mixture; or (2) 1.5 kilograms or more of actual methamphetamine. See

U.S.S.G. § 2D1.1(c)(1) (2012).
8 UNITED STATES V. RODRIGUEZ

In January 2012, Rodriguez pleaded guilty pursuant to a 

written plea agreement. As the factual basis for his guilty 

plea, Rodriguez admitted to “knowingly possess[ing] over 

500 grams of a mixture or substance that contained a 

detectable amount of methamphetamine . . . with the intent 

to deliver it to another person” and further stipulated to the 

maximum base offense level of 38. The factual basis also 

specified that law enforcement seized 11 pounds of 

methamphetamine from Rodriguez’s vehicle and that the 

methamphetamine “was laboratory tested and found to 

contain over 1,500 grams of actual methamphetamine.” At 

his plea colloquy, Rodriguez confirmed that “each and every 

fact” in the factual basis was “true and correct.”

The PSR prepared for Rodriguez’s sentencing stated that 

he “possessed approximately 4.8 kilograms of 

methamphetamine (actual) in his vehicle” and “186 grams of 

a mixture of methamphetamine at his residence.”4 Because 

the amount of methamphetamine mixture in his residence 

was a relatively small quantity, the PSR disregarded it for 

purposes of calculating his base offense level. On the basis 

of the quantity of methamphetamine in his vehicle alone, 

which “involved 1.5 kilograms or more of 

methamphetamine (actual),” the PSR recommended the 

highest base offense level for drug-related offenses, level 38. 

The PSR further determined that Rodriguez had a Category 

II criminal history, see U.S.S.G. § 4A1.1, and recommended 

a three-level reduction for accepting responsibility and 

cooperating with authorities. The PSR calculations yielded a 

 4 The Guidelines instruct that a pound is converted to 0.4536 

kilograms or 453.6 grams. See U.S.S.G. § 2D1.1 cmt. n.8(D). Therefore, 

the PSR incorrectly converts 11 pounds into 4.8 kilograms, and the 

correct conversion is 4.9 kilograms.
UNITED STATES V. RODRIGUEZ 9

total offense level of 35 and a Guidelines range of 188 to 235 

months imprisonment.

Rodriguez’s sole objection to the PSR, lodged before 

sentencing, was that the PSR overstated his criminal history. 

Neither Rodriguez nor the government contested the PSR’s 

findings regarding the quantity of methamphetamine 

attributable to Rodriguez.

At sentencing, the judge concluded that the PSR did 

overstate Rodriguez’s criminal history and so departed 

slightly from the recommended Guidelines range, imposing 

a sentence commensurate with a Category I criminal history. 

See U.S.S.G. § 4A1.3(b). Aside from that slight departure, 

the sentencing judge “agree[d] with the justifications set 

forth in the [PSR].”5 Rodriguez was sentenced to 168 

months imprisonment.

B

In May 2016, Rodriguez filed a pro se § 3582(c)(2) 

sentence reduction motion. The motion was assigned to his 

original sentencing judge. The following year, with the 

assistance of later-appointed counsel, Rodriguez filed an 

amended motion for sentence reduction. Rodriguez seeks to 

reduce his base offense level from 38 to 36, the level 

corresponding to 1.5 kilograms of methamphetamine under 

Amendment 782, which after the three-level reduction from 

 5 It is unclear from the district court’s oral statement whether it 

adopted the PSR in its entirety or whether it just agreed with its 

“justifications.” We note, however, that the sealed Statement of Reasons,

signed by the sentencing judge, has a checked box for “The court adopts 

the presentence investigation report without change.”
10 UNITED STATES V. RODRIGUEZ

original sentencing would result in a total offense level of 

33.

At Rodriguez’s sentence reduction hearing in May 2017, 

the district court assumed that he had generally adopted the 

findings in Rodriguez’s PSR at the original sentencing 

hearing. The government argued that the uncontested drug 

quantities used in the calculations in Rodriguez’s PSR, 4.8 

kilograms and 186 grams of methamphetamine, controlled. 

Consequently, the government maintained, Rodriguez was 

ineligible for sentence reduction under § 3582(c)(2), 

because the PSR’s drug quantity would not lower 

Rodriguez’s Guidelines range. Rodriguez argued to the 

contrary—that the only finding at the original sentencing 

hearing was that he possessed at least 1.5 kilograms of 

methamphetamine, which is not a finding as to a drug 

quantity that makes Rodriguez ineligible for sentence 

reduction.

The district court accepted Rodriguez’s argument, 

agreeing that it had not made a disqualifying drug quantity 

finding at the original sentencing by adopting the PSR’s 

findings. The court concluded that Rodriguez was eligible 

for § 3582(c)(2) sentence reduction and reduced 

Rodriguez’s sentence from 168 months to 151 months. In so 

ruling, the court did not engage in supplemental fact-finding 

to determine the drug quantity actually attributable to 

Rodriguez. The government’s appeal followed.

III

We review a district court’s § 3582(c)(2) sentence 

reduction decision for abuse of discretion. United States v. 

Dunn, 728 F.3d 1151, 1155 (9th Cir. 2013). “A district court 

may abuse its discretion if it does not apply the correct law 

or if it rests its decision on a clearly erroneous finding of 
UNITED STATES V. RODRIGUEZ 11

material fact.” United States v. Sprague, 135 F.3d 1301, 

1304 (9th Cir. 1998) (quoting United States v. Plainbull, 957 

F.2d 724, 725 (9th Cir. 1992)).

The government makes two arguments on appeal. First, 

it contends that the uncontested drug quantities in 

Rodriguez’s court-adopted PSR are binding drug quantity 

findings for purposes of § 3582(c)(2), and that those 

quantities render Rodriguez ineligible for a sentence 

reduction. Second, the government maintains that the district 

court was required to determine whether Rodriguez is more 

likely than not responsible for a drug quantity that meets the 

new quantity threshold under Amendment 782. We address 

each argument in turn.

A

Relying on our decision in Mercado-Moreno, the 

government argues that the drug quantities in Rodriguez’s 

PSR—4.8 kilograms of methamphetamine from his vehicle 

and 186 grams of methamphetamine mixture from his 

residence—were binding on the district court in considering 

Rodriguez’s § 3582(c)(2) sentence reduction motion. Based 

on this understanding, the government contends that 

Rodriguez is ineligible for a sentence reduction at the first 

step of the inquiry, as the PSR’s drug quantities generate the 

same base offense level under Amendment 782 as 

previously, and thus would not have the effect of lowering 

his Guidelines range.

The government’s reading of Mercado-Moreno is 

flawed. A close reading of that opinion compels the opposite 

conclusion. Under Mercado-Moreno, drug quantities in a 

generically adopted PSR are not binding on district courts in 

subsequent § 3582(c)(2) proceedings.
12 UNITED STATES V. RODRIGUEZ

1

Mercado-Moreno was charged with one count of 

conspiring to manufacture and distribute 50 grams or more 

of methamphetamine, in violation of 18 U.S.C. § 2 and 21 

U.S.C. §§ 841(a)(1), 846. Mercado-Moreno, 869 F.3d at 

950. He pleaded guilty to the charges pursuant to a written 

plea agreement. The factual basis in the written agreement 

stipulated that Mercado-Moreno had distributed more than 

4,376.1 grams (4.3 kilograms) of actual methamphetamine 

in furtherance of the conspiracy. Id. The agreement’s factual 

basis also specified that Mercado-Moreno managed others in 

the manufacture of methamphetamine but did not provide a 

specific quantity of methamphetamine manufactured. Id. At 

his plea colloquy, Mercado-Moreno affirmed the factual 

basis for his plea. Id.

The PSR prepared for Mercado-Moreno’s sentencing 

asserted that law enforcement had seized 40 pounds (roughly 

18 kilograms) of methamphetamine solution from his 

laboratory. Id. at 951. Mercado-Moreno did not contest this 

factual assertion (or any other) in the PSR. Id. The 

sentencing judge adopted the PSR in its entirety. Id. The 

sentencing judge also specifically found that MercadoMoreno had “distributed 4.2 kilograms of actual 

methamphetamine during the course of the conspiracy”6 but, 

despite the undisputed factual assertion in the PSR that 

Mercado-Moreno manufactured roughly 18 kilograms of 

methamphetamine, did not make a specific finding as to the 

“precise quantity of actual methamphetamine . . . 

 6 The sentencing judge’s finding of 4.2 kilograms, as opposed to 4.3 

kilograms, was, Mercado-Moreno conceded, a typographical error. 

Mercado-Moreno, 869 F.3d at 951. As this error is not pertinent to our 

analysis, we do not discuss further Mercado-Moreno’s treatment of it.
UNITED STATES V. RODRIGUEZ 13

manufactured.” Id. at 948, 951–52. Mercado-Moreno was 

sentenced to a 210-month term of imprisonment. Id. at 952.

Mercado-Moreno filed a § 3582(c)(2) sentence 

reduction motion after Amendment 782 was made 

retroactive. In calculating the amended Guidelines range, the 

district court used both Mercado-Moreno’s stipulation in his 

plea agreement that he had possessed more than 4.3 

kilograms of methamphetamine and the uncontested 18 

kilograms of manufactured methamphetamine described in 

the original PSR (and tested via a chemical analysis report 

presented to the court). Id. at 952. Because Amendment 782 

would not lower Mercado-Moreno’s Guidelines range using 

that calculation, the district court denied the § 3582(c)(2) 

motion for sentence reduction at the first step of the inquiry. 

Id. at 953.

Mercado-Moreno appealed to this court, arguing that (1) 

§ 3582(c)(2) does not permit district courts to redetermine 

the drug quantity found at original sentencing; and (2) the 

district court erred in making supplemental findings as to 

drug quantity without a hearing. Id. Ruling on these 

contentions, Mercado-Moreno clarified, as relevant here, the 

circumstances in which drug quantities from the original 

sentencing are binding in later § 3582(c)(2) proceedings, and 

also provided a framework for making supplemental 

findings as to drug quantity.

First, Mercado-Moreno instructed that a drug quantity is 

binding at the initial step—whether the amendment lowered 

defendant’s Guidelines range—in only two circumstances: 

(1) where “the sentencing court made a specific finding 

regarding the total quantity of drugs for which the defendant 

was responsible,” or (2) where “the defendant admitted to a 

specific total quantity.” Id. at 957 (emphases added).
14 UNITED STATES V. RODRIGUEZ

Second, Mercado-Moreno clarified that, if the prior drug 

quantity finding at original sentencing is ambiguous or 

incomplete, a district court in § 3582(c)(2) proceedings may 

need to make supplemental findings of drug quantity. Id. A 

finding is ambiguous or incomplete if, for example, the 

sentencing judge “attributed a range of quantities (such as ‘at 

least X kilograms’) to the defendant,” or “quantified only 

part of the amount for which [d]efendant was responsible, 

without making a specific finding as to the rest.” Id. at 954.

In making supplemental findings of drug quantity, 

Mercado-Moreno instructed, “the district court may

consider . . . ‘the trial transcript, the sentencing transcript, 

and the portions of the presentence report that the defendant 

admitted to or the sentencing court adopted.’” Id. at 957 

(quoting United States v. Valentine, 694 F.3d 665, 670 (6th 

Cir. 2012)). With specific regard to factual assertions in a 

PSR, Mercado-Moreno clarified that courts “may accept as 

true any facts in a PSR that the defendant did not object to at 

the time of sentencing.” Id. The only restriction on 

supplemental findings is that they “may not be inconsistent 

with any factual determinations made by the original 

sentencing court.” Id.

Notably, a district court’s potential reliance on a generic 

adoption of a PSR—as opposed to reliance on a specific 

finding of a drug quantity by the district court—is discussed 

and sanctioned only in the section of Mercado-Moreno

pertaining to supplemental fact-finding. The portion of the 

opinion pertaining to determining whether prior findings or 

admissions are binding at the first step of the inquiry does 

not suggest that reliance on a generic adoption of a PSR 

suffices for that purpose.

Applying this framework for § 3582(c)(2) proceedings, 

Mercado-Moreno held that (1) Mercado-Moreno stipulated 
UNITED STATES V. RODRIGUEZ 15

only to distributing more than 4,376.1 grams of 

methamphetamine, not to a specific quantity, id. at 958 and 

(2) “the original sentencing court did not make any findings 

regarding the amount of manufactured methamphetamine 

attributable to Defendant, [so] it was necessary for the 

district court to make those supplemental findings in order 

to rule on Defendant’s later motion.” Id. at 959 (emphasis 

added). By so holding, Mercado-Moreno necessarily 

determined that the uncontested statement in MercadoMoreno’s court-adopted PSR concerning the amount of 

methamphetamine manufactured was not a binding finding 

of drug quantity under § 3582(c)(2). Rather, MercadoMoreno confirmed that only a “specific finding” regarding 

drug quantity, id. at 957 (emphasis added), is preclusive at 

the first step of the inquiry; uncontested facts in a generically 

adopted PSR do not constitute specific findings and are thus 

nonbinding in subsequent § 3582(c)(2) proceedings. Id.

2

As the above recounting demonstrates, MercadoMoreno instructs that drug quantities alluded to in the 

original sentencing are binding in a § 3582(c)(2) proceeding 

only if (1) the sentencing judge made a specific finding of 

drug quantity or (2) the defendant admitted to a specific

quantity. Id. at 957. A sentencing judge’s generic adoption 

of a PSR (or an adoption of its justifications) does not fall 

into either category. We therefore decline, as MercadoMoreno instructs, to transform statements of generic 

adoption of a PSR into binding, specific determinations as to 

particular drug quantities.

Notably, Mercado-Moreno concluded that the 

government had not waived its argument for a higher drug 

quantity finding by failing to object at the original 

sentencing, because it did not have an incentive to prove a 
16 UNITED STATES V. RODRIGUEZ

higher amount at the time and did not “knowingly 

relinquish[] the unforeseeable necessity to argue a higher 

amount later on.” Id. at 959 n.9. Similarly, in many 

instances, the PSR’s account of drug quantity will not affect 

the defendant’s Guidelines range, providing little incentive 

to the defendant to contest the asserted amount or to the 

sentencing judge to focus on whether the PSR’s asserted 

amount is accurate.

The district court’s ruling now before us reflects this 

dynamic. The district court apparently did not view the 

earlier generic adoption of the PSR as a ruling on the specific 

quantity of drugs Rodriguez possessed, presumably because 

it had no reason to focus on the precise quantity at the time.

To be clear, we do not suggest that judges are required at 

the original sentencing to make findings of drug quantity 

beyond what is required to determine the applicable 

Guidelines range at the time. To the contrary, sentencing 

judges may make general findings of drug quantity by 

adopting the PSRs. In some instances, such a general 

adoption of the findings will be preferable, particularly 

where a defendant admits to a general drug quantity that 

meets the threshold for a Guidelines base offense level and 

any plausible specific finding would not alter that level. In 

that circumstance, any specific finding could be superfluous 

to the sentencing result.7 It is always possible, of course, 

that, as here, the Guidelines drug quantity threshold could be 

 7 In some instances, sentencing judges will, in fact, focus on the 

accuracy of an asserted drug quantity in a PSR—for example, sentencing 

judges may need to assure the accuracy of the PSR when contemplating 

an upward variance. In that circumstance, the judge will want to ensure 

that the basis for such a variance is accurate, and is likely to make a 

finding as to the specific drug quantity involved, even if the specific 

amount is not determinative of the Guidelines range.
UNITED STATES V. RODRIGUEZ 17

altered after the original sentencing. But there is no need 

routinely to anticipate that possibility—which may never 

come to pass—in the original sentencing proceeding. As we 

shall explain, supplemental fact-findings as part of any 

future § 3582(c)(2) proceedings are available and suffice.

B

Applying Mercado-Moreno to Rodriguez, we conclude 

that neither required circumstance for a binding 

determination occurred. The sentencing judge at the initial 

sentencing did not make a specific finding of drug quantity, 

and Rodriguez did not admit to a specific drug quantity 

beyond the quantity necessary to determine the appropriate 

Guidelines range.8

Under Mercado-Moreno, the drug quantities in the 

court-adopted PSR—4.8 kilograms of methamphetamine 

and 186 grams of methamphetamine mixture—do not 

constitute specific drug quantity findings and so are not 

binding for purposes of applying § 3582(c)(2). Accordingly, 

there were no binding drug quantity findings or admissions 

 8 Rodriguez stipulated in his plea agreement that law enforcement 

officers seized 11 pounds (roughly 4.9 kilograms, but erroneously 

calculated as 4.8 kilograms in the PSR) of methamphetamine from his 

vehicle. His stipulation as to what was seized from his vehicle is not 

tantamount to a specific admission of drug possession with intent to 

distribute. See, e.g., United States v. Espinoza, 880 F.3d 506 (2018) 

(reversing a conviction for importing a controlled substance because the 

district court erred in excluding evidence supporting defendant’s theory 

that, when she crossed the border, she was unaware of the drugs in her 

car, which would negate the applicable mens rea). The government 

appears to so recognize, and does not argue that Rodriguez made a 

binding, specific admission of drug quantity. Instead, the government 

relies only on the uncontested PSR, which did assert that Rodriguez 

possessed the 4.8 kilograms found in his vehicle.
18 UNITED STATES V. RODRIGUEZ

of a specific quantity at Rodriguez’s original sentencing that 

bound the district court at the later § 3582(c)(2) proceedings.

C

The government further contends that the district court 

should have determined whether the drug quantity 

attributable to Rodriguez satisfied the new drug quantity 

threshold for offense base level 38 under Amendment 782. 

On that point, we agree with the government.

As we have explained, § 3582(c)(2) established a twostep inquiry for determining whether a defendant is entitled 

to a sentence reduction. The first step, which determines 

eligibility, requires the district court to determine whether 

the Amendment invoked has the “effect of lowering the 

defendant’s applicable Guideline[s] range.” U.S.S.G. 

§ 1B1.10(a)(2)(B). This step necessarily requires a finding 

of the drug quantity attributable to the defendant sufficient 

to “determine whether the defendant is more likely than not 

responsible for the new quantity threshold under the 

retroactive Guidelines amendment.” Mercado-Moreno, 869 

F.3d at 957. Without such a finding, there is no way for a 

district court to determine whether the amendment would 

lower the defendant’s Guidelines range.

If the district court at the original sentencing did not 

make a specific drug quantity finding, as we have concluded 

in this situation here, the proper course is for the district 

court to engage in supplemental fact-finding to determine 

whether the defendant is eligible for a sentence reduction 

under § 3582(c)(2). Id. At that stage, as Mercado-Moreno

explained, the district court may take into account the drug 

quantity attributed to the defendant in a court-adopted PSR,

as well as the trial and sentencing transcripts. Id.
UNITED STATES V. RODRIGUEZ 19

Here, the district court concluded that no specific 

findings of drug quantity had been made at the original 

sentencing. But then, instead of conducting supplemental 

fact-finding and determining whether the drug quantity 

attributable to Rodriguez meets the new quantity threshold 

for the Guidelines range, the district court simply granted 

Rodriguez’s § 3582(c)(2) sentence reduction motion. The 

district court erred in doing so. It was required first to 

determine whether Rodriguez was more likely than not 

responsible for a drug quantity that meets Amendment 782’s 

quantity threshold.

IV

We REVERSE and REMAND for further proceedings 

consistent with the opinion.

CARDONE, District Judge, dissenting:

Because I believe the district court made a sufficiently 

specific finding as to drug quantity during Rodriguez’s 

original sentencing hearing that renders Rodriguez ineligible 

for a reduced sentence under 18 U.S.C. § 3582(c)(2), I 

respectfully dissent.

Under Mercado-Moreno, “[i]f the record reflects that the 

sentencing court made a specific finding regarding the total 

quantity of drugs for which the defendant was responsible, 

. . . then the district court must use that quantity and 

determine whether applying the retroactive amendment 

would lower the defendant’s guideline range.” United States 

v. Mercado-Moreno, 869 F.3d 942, 957 (9th Cir. 2017). If, 

on the other hand, “the sentencing court’s quantity finding 

was ambiguous or incomplete, the district court may need to 
20 UNITED STATES V. RODRIGUEZ

make additional findings of drug quantity to determine the 

defendant’s eligibility for a sentence reduction.” Id.

The Mercado-Moreno court decided the sentencing 

court’s quantity finding was incomplete because it had “only 

determined the quantity of actual methamphetamine [the 

defendant] had distributed”—4.3 kilograms—without 

making any finding regarding the quantity of 

methamphetamine the defendant was responsible for 

manufacturing. Id. at 958. And, because Amendment 782 

would have lowered the defendant’s base offense level only 

if the quantity of actual methamphetamine attributable to the 

defendant was less than 4.5 kilograms, it was necessary for 

the district court to make supplemental findings as to the 

quantity of manufactured methamphetamine before it could 

decide whether the defendant was eligible for a sentence 

reduction. Id. at 958–59; see U.S.S.G. supp. app. C, amend. 

782 (Nov. 1, 2014).

In this case, the record shows that the sentencing court 

made a specific finding regarding the total quantity of 

methamphetamine for which Rodriguez was responsible. 

The district court reviewed the presentence investigation 

report (“PSR”) prepared by the probation department prior 

to sentencing Rodriguez. Paragraph 11 of the PSR 

calculated Rodriguez’s base offense level under the 

Guidelines. It provided in part,

the defendant possessed approximately 4.8 

kilograms of methamphetamine (actual) in 

his vehicle. He also had 186 grams of a 

mixture of methamphetamine at his 

residence. While the overall conspiracy 

involved much larger quantities of 

methamphetamine, the defendant’s relevant 

conduct is limited to these amounts. USSG 
UNITED STATES V. RODRIGUEZ 21

2D1.1(c)(1) establishes a base offense level 

of 38, the highest available under USSG 

2D1.1, if the offense involved 1.5 kilograms 

or more of methamphetamine (actual). Since 

the defendant possessed 4.8 kilograms of 

methamphetamine (actual) in his vehicle, the 

186 grams of methamphetamine mixture is of 

such a small quantity that it will not be 

included, as it will not affect the guideline 

computation. A base offense level of 38 is 

recommended.

At sentencing, neither Rodriguez nor the government 

objected to the drug quantities listed in the PSR. The judge 

stated that he “agree[d] with the justifications set forth in the 

presentence report” and adopted the PSR’s recommended 

base offense level. The PSR’s only justification for its base 

offense level was that Rodriguez “possessed approximately 

4.8 kilograms of methamphetamine (actual).” By explicitly 

relying upon the PSR’s justification, the sentencing judge 

necessarily determined that Rodriguez was responsible for 

the 4.8 kilograms of methamphetamine (actual) before 

imposing the original sentence.

Thus, when subsequently considering Rodriguez’s 

eligibility for a sentencing reduction, I believe the district 

court was bound to use the 4.8 kilograms. And, because this 

still triggers the maximum base offense level of 38, 

Amendment 782 does not lower Rodriguez’s Guideline 

range and he is ineligible for a sentence reduction. See

U.S.S.G. supp. app. C, amend. 782 (Nov. 1, 2014); 

Mercado-Moreno, 869 F.3d at 957. I would therefore 

reverse the district court’s order reducing Rodriguez’s 

sentence.