     Case: 16-11250      Document: 00514096122         Page: 1    Date Filed: 07/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                      No. 16-11250
                                                                                Fifth Circuit

                                                                              FILED
                                                                          July 31, 2017

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

MILTON EUGENE ROBINS,

              Defendant - Appellant




                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:90-CR-127-1


Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant appeals the district court’s denial of his motion to
reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). Because we conclude on
the record before us that Defendant-Appellant is eligible for a sentence
reduction under the statute, we vacate and remand.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 16-11250
                        I.     Facts & Procedural History
       Milton Eugene Robins, federal prisoner # 02993-07, was convicted of
conspiring to possess with intent to deliver more than 100 kilograms of
marijuana and aiding and abetting his co-defendant’s possession with intent
to deliver more than 1,000 kilograms of marijuana.                See United States v.
Robins, 978 F.2d 881, 884 (5th Cir. 1992) (direct appeal). He is serving a 480-
month term of imprisonment. 1
           Robins recently moved the district court for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2) under Amendment 782 to the Sentencing
Guidelines.     The district court denied his motion based on the Probation
Office’s recommendation that Robins is ineligible because he “is accountable
for 90,720 kilograms of marijuana, which establishe[s] a Base Offense level of
38”—the same base level offense assigned to Robins at his original sentencing
in 1991. Robins filed this appeal.
                               II.    Standard of Review
       A district court’s ruling on a sentence reduction under § 3582(c)(2) is
reviewed for an abuse of discretion. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009).
                                     III.   Discussion
       On appeal, Robins argues that the district court erred in determining
that he was ineligible for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2).
We agree.       Section 3582(c)(2) permits the discretionary modification of a
defendant’s sentence “in the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o),” so



       1Robins is sixty-six years old and has been incarcerated for approximately twenty-six
years now.
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                                 No. 16-11250
long as the reduction is consistent with the applicable policy statements. 18
U.S.C. § 3582(c)(2); see United States v. Doublin, 572 F.3d 235, 237 (5th Cir.
2009). “The Supreme Court has prescribed a two-step inquiry for a district
court that is considering a § 3582(c)(2) motion.” United States v. Benitez, 822
F.3d 807, 810 (5th Cir. 2016) (per curiam) (citing Dillon v. United States, 560
U.S. 817, 826 (2010)). First, the district court must “determine whether the
defendant is eligible for a sentence reduction under § 1B1.10.” Id. (citing
Dillon, 560 U.S. at 826–27). “At step two of the inquiry, § 3582(c)(2) instructs
a court to consider any applicable § 3553(a) factors and determine whether, in
its discretion, the reduction authorized . . . is warranted in whole or in part
under the particular circumstances of the case.” Dillon, 560 U.S. at 827; see
also 18 U.S.C. § 3553(a).
      Sentencing Guidelines Amendment 782 modified the drug quantity table
set forth in U.S.S.G. § 2D1.1(c), effectively lowering most drug-related base
offense levels by two levels. See U.S.S.G. Supp. to App. C (Nov. 2016), Amend.
782. On November 1, 2015, Amendment 782 became retroactively applicable
to defendants such as Robins who were sentenced prior to its effective date.
See U.S.S.G. Supp. to App. C (Nov. 2016), Amend. 788.           In determining
whether an amendment has altered a movant’s Sentencing Guidelines range,
a court shall “determine the amended [G]uideline range that would have been
applicable if the amendment had been in effect at the time the defendant was
sentenced.” United States v. Garcia, 655 F.3d 426, 430 (5th Cir. 2011) (internal
quotation marks and citation omitted). It does “not consider any issues . . .
other than those raised by the retroactive amendment,” id. at 429, or disturb
“the findings and calculations that formed the recommended sentencing
range.” United States v. Jones, 796 F.3d 483, 486 (5th Cir. 2015); see also
U.S.S.G. § 1B1.10(b)(1) (“[T]he court shall substitute only the amendments . .
. for the corresponding guideline provisions that were applied when the
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                                        No. 16-11250
defendant was sentenced and shall leave all other guideline application
decisions unaffected.”).
       Here, the quantity of drugs that the Probation Office attributed to
Robins in recommending that the district court deny his motion is unsupported
by the record. At his sentencing in 1991, the Government presented a ledger
computing the amount that Robins was responsible for as between 48,004 and
83,345 kilograms of marijuana. 2 It did not offer any evidence to support the
Probation Office’s larger estimated amount of 90,720 kilograms. Nevertheless,
noting that the Guidelines provided “a substantial margin for error,” the
district court accepted the Government’s evidence, explaining that any of these
amounts put the quantity attributable to Robins “somewhere” between 30,000
kilograms and 100,000 kilograms of marijuana—the 1991 Sentencing
Guidelines range for a base offense level of 38. 3 See U.S.S.G. § 2D1.1(c), Level


       2 In the Government’s Exhibit 1 presented to the sentencing court, three alternative
computations for the estimated drug quantities attributable to Robins are shown: (1) between
59,090 kilograms and 70,454 kilograms, (2) 83,345 kilograms, and (3) 48,004 kilograms. In
contrast, paragraphs (19) and (25) of the Presentence Report prepared in advance of the
sentencing hearing state that “[b]ased on analysis of drug ledgers, interviews from
codefendants, and admissions from the defendant, agents indicate that from 1984 to 1989, a
conservative estimate of approximately 200,000 to 250,000 pounds of marijuana were
distributed by the Robins Organization . . . [t]wo hundred thousand (200,000) pounds of
marijuana converts to 90,720 kilograms of marijuana.”

       3   The district court stated:

       I have the obligation of attempting to approximate the quantity of the
       controlled substance during the time the conspiracy was in existence. . . . Here
       the task is made more difficult and complicated by the fact that this was a type
       of business or a series of transactions which because of their illegal nature
       complete records were not kept . . . . Consequently, the Probation Office in
       computing the . . . base offense level [of 38] used . . . the Guidelines manual
       which provides to use that offense level for an amount of marijuana of at least
       thirty thousand but less than a hundred thousand kilograms. Obviously, that
       is a big range of marijuana, and I believe that on the basis of the evidence
       adduced this morning that the efforts that anyone can make to reconstruct or
       approximate the amount of marijuana dealt in by Mr. Robins puts it
       somewhere in that range.
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                                  No. 16-11250
38 (Nov. 1991) (“At least 30,000 KG but less than 100,000 KG of Marihuana”).
The district court explained that “assuming the inaccuracies of all other figures
there and reducing them to zero would produce an amount of eighty thousand
pounds[,] dividing that by 2.2 would still produce a quantity of marijuana in
excess of thirty thousand kilograms which would put us in the range of
marijuana to produce a Level 38 as the base offense level.” These statements
by the district court, vaguely estimating a minimum and maximum quantity
potentially attributable to Robins cannot reasonably be construed as an
adoption of the Probation Office’s estimated amount of 90,720 kilograms.
      In United States v. Briscoe, 596 F. App’x 299 (5th Cir. 2015) (per curiam)
(unpublished), we addressed similar facts. There, the Presentence Report
(“PSR”) assigned an estimated drug quantity of 24 kilograms of crack cocaine
to the defendant. Id. at 300. The sentencing court declined to accept that
number, however, and instead adopted a range of “somewhere between five
and 15 kilograms of ‘crack’ cocaine.” Id. Later, the district court denied the
defendant’s Section 3582(c)(2) motion on grounds that he was not eligible for
relief because he had been held responsible for more than 8.4 kilograms of
crack cocaine. Id. On appeal, we vacated the district court’s order, observing
that there was evidence in the record that the defendant was personally
responsible for less than 8.4 kilograms of crack cocaine, implicating the range
of five to fifteen kilograms accepted by the district court. Id. at 302. We stated
that in assessing a defendant’s sentencing-reduction eligibility, a district court
cannot rely on a drug quantity “contradictory to the range set by the sentencing
court.” Id.; see also United States v. Valentine, 694 F.3d 665, 670 (6th Cir.
2012) (“[I]f the record does not reflect a specific quantity finding but rather a
finding or a defendant’s admission that the defendant was responsible for ‘at
least’ or ‘more than’ a certain amount, then the modification court must make


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                                       No. 16-11250
supplemental findings based on the available record to determine if applying
the retroactive amendment lowers the Guideline range.”).
       Similarly here, the district court denied the motion relying on the larger
estimated amount of 90,720 kilograms provided by the Probation Office—an
amount that was not actually adopted by the sentencing court and is higher
than the drug quantities actually supported by the Government’s evidence at
sentencing—between 48,004 and 83,345 kilograms. See Briscoe, 596 F. App’x
at 302. Under the amended Guidelines, the base offense level for the range of
drug quantities between 48,004 and 83,345 kilograms is 36. See U.S.S.G. §
2D1.1(c), Level 36 (Nov. 2015) (“At least 30,000 KG but less than 90,000 KG of
Marihuana”).       Thus, Robins is eligible for a sentencing reduction because
Amendment 782 decreased his base offense level by two. See U.S.S.G. § 1B1.10
(“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by
an amendment . . . that lowers the applicable guideline range.”); United States
v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (“Step one of the [§ 3582(c)(2)]
inquiry requires the court . . . to determine whether the prisoner is eligible for
a sentence modification[.]”). Accordingly, we conclude that the district court
erred in denying Robins’s motion for a reduction on grounds that he was not
eligible for relief under 18 U.S.C. § 3582(c)(2). 4
                                     IV.     Conclusion
       We vacate the district court’s order denying a sentencing reduction based
on Robins’s ineligibility and remand for further proceedings. See Henderson,



       4 A review of our opinion in United States v. Hernandez, 645 F.3d 709 (5th Cir. 2011)
(per curiam) indicates that it is not controlling here. There, we held that the district court
did not err in denying the defendant’s motion for sentence reduction. Id. at 713. In that case,
the district court adopted the specific numerical quantity urged by the PSR which eliminated
the defendant’s eligibility for a possible sentence reduction. Id. at 712. Here, as explained,
the district court only agreed that the Government’s evidence supported a finding of a broad
range of potential quantities attributable to the defendant and never adopted any specific
numerical quantities presented at sentencing. See id.
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636 F.3d at 717 (“Step two requires the court to consider any applicable §
3553(a) factors and determine whether, in its discretion, the reduction
authorized . . . is warranted in whole or in part under the particular
circumstances of the case.”) (internal quotation marks, footnote, and citation
omitted).




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