              United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 12-1911
                    ___________________________

                        United States of America

                   lllllllllllllllllllll Plaintiff - Appellee

                                      v.

                              Adrian Almonte

                  lllllllllllllllllllll Defendant - Appellant
                                  ____________

                Appeal from United States District Court
                 for the District of Nebraska - Omaha
                            ____________

                     Submitted: November 12, 2012
                       Filed: November 29, 2012
                             [Unpublished]
                             ____________

SMITH, BOWMAN, and BEAM, Circuit Judges.

                              ____________

PER CURIAM.
      Adrian Almonte appeals from the order of the District Court1 denying him a
sentence reduction under the Fair Sentencing Act of 2010 (FSA) and the
corresponding amendments to the U. S. Sentencing Guidelines for cocaine-base (or
crack-cocaine) offenses. We affirm.

       Almonte pleaded guilty to conspiring to distribute a mixture or substance
containing cocaine base. According to his original presentence investigation report
(PSR), Almonte was responsible for 113.4 grams of cocaine base. The government
objected to the paragraphs of the PSR associated with this calculation and requested
that the court find Almonte responsible for just 20 to 35 grams of crack cocaine,
consistent with the parties’ stipulation in the plea agreement. The court obliged.
Almonte’s base-offense level under the Guidelines was therefore 26, before
adjustment for acceptance of responsibility, and the District Court sentenced Almonte
to eighty-four months’ imprisonment, the bottom of the Guidelines range.

       In August 2011, Almonte sent a letter to the District Court asking how the
retroactive amendments to the Guidelines that reduced the penalties for crack-cocaine
offenses would apply to his case. The court construed the letter as a pro-se motion to
reduce sentence under 18 U.S.C. § 3582(c)(2) and appointed counsel for Almonte.

       Under the amended Guidelines, the quantity of cocaine base for which Almonte
was held responsible—20 to 35 grams—now could result in one of three base-offense
levels: at least 16.8 but less than 22.4 grams is level 22; at least 22.4 but less than 28
grams is level 24; and at least 28 but less than 112 grams is level 26. U.S. Sentencing
Guidelines Manual § 2D1.1(c)(7)–(9) (2011). In ruling on Almonte’s motion, the
District Court found that he was responsible for at least 28 grams of cocaine base and
that his base-offense level and the Guidelines sentencing range therefore were


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

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unaffected by the FSA amendments, and the court denied the motion for sentence
reduction. On appeal, Almonte claims that the District Court erred in finding him
responsible for 28 grams of crack cocaine and that in any event, the rule of lenity
should apply to him. We review a district court’s decision on a motion under 18
U.S.C. § 3582(c)(2) for an abuse of discretion. United States v. Burrell, 622 F.3d 961,
964 (8th Cir. 2010).

       When originally sentencing Almonte, the District Court did not make a specific
finding of drug quantity within the stipulated 20 to 35 grams because it was not
necessary to do so. Since the FSA amendments, however, that quantity range is now
covered by three base-offense levels, as explained above, and the District Court was
required to make a more precise factual finding of quantity in order to rule on the
§ 3582(c)(2) motion. See Dillon v. United States, 130 S. Ct. 2683, 2692 (2010)
(noting that “proceedings under § 3582(c)(2) do not implicate the Sixth Amendment
right to have essential facts found by a jury beyond a reasonable doubt”). We review
the court’s finding for clear error and determine whether that finding is supported by
a preponderance of the evidence. United States v. Payton, 636 F.3d 1027, 1046 (8th
Cir.) (standard of review), cert. denied, 132 S. Ct. 349 (2011). Almonte claims that
the District Court erroneously relied on the objected-to paragraphs in the PSR to find
him responsible for 28 grams of crack cocaine. We disagree.

       According to the prosecutor’s version of events, set out in paragraphs 20 and
22 of the PSR, officers executing a search warrant at the apartment where Almonte
was arrested found 100 grams of powder cocaine and 32 grams of “freshly cooked”
crack cocaine. Presentence Investigation Report (June 4, 2009) ¶ 20. The resident of
the apartment later told investigators that “he was in the process of cooking the
powder cocaine into crack” and “that Almonte was there waiting for two ounces




                                         -3-
[56.699 grams] of crack to be cooked.” Id. ¶ 22.2 In paragraph 24, the probation
officer concluded that the actual amounts seized were 95.8 grams of powder and 32
grams of crack cocaine. Neither Almonte nor the government objected to the factual
allegations in these three paragraphs. The District Court did not err in adopting as fact
the undisputed allegations in the PSR. See United States v. Lee, 570 F.3d 979, 982
(8th Cir. 2009) (noting that a sentencing court may accept as true any factual
allegation in the PSR to which the defendant does not object). Contrary to Almonte’s
contention, the court’s finding that Almonte was responsible for 28 grams was not
“inconsistent” with the factual findings made in the original sentencing
proceeding—that Almonte was responsible, as he stipulated in his plea agreement,
for 20 to 35 grams of crack cocaine. Reply Br. of Appellant at 3. Indeed, 28 grams
falls squarely within that range. Almonte’s claims that the District Court violated his
constitutional rights in denying the § 3582(c)(2) motion also fail. He had no due
process or Sixth Amendment right to “rebut or explain evidence” that was deemed
admitted by him. Br. of Appellant at 11.

       Almonte also argues that ambiguity created by the amended Guidelines—which
put him into any one of three base-offense levels based on the originally stipulated
quantity of crack cocaine without “provid[ing] guidance for which offense level to
choose”—requires application of the rule of lenity to his motion for reduced sentence.
Id. at 13. The rule of lenity is applicable when there is a “grievous ambiguity or
uncertainty in the language and structure” of a statute. United States v. Muhlenbruch,
682 F.3d 1096, 1100 (8th Cir. 2012) (quoting Chapman v. United States, 500 U.S.
453, 463 (1991) and omitting citation to originally quoted case). Assuming without
deciding that the rule could apply to a sentence-modification decision under 18 U.S.C.
§ 3582(c)(2), we nevertheless hold that it is not applicable as Almonte suggests.

      2
        At his change-of-plea hearing, Almonte agreed with his counsel’s statement
that “[t]he understanding was that Mr. Almonte was going to pick up half of the
amount that was cooked -- to be cooked into crack cocaine.” Tr. of Change of Plea
Proceedings at 29–30.

                                          -4-
Neither the FSA nor the amended Guidelines are ambiguous. The law is clear; it is
the District Court’s fact-finding that Almonte finds objectionable, and that is not
subject to the rule of lenity. For the same reason, Almonte’s argument that we should
look to legislative history to resolve the suggested ambiguity in the Guidelines also
fails.

      We affirm the order of the District Court denying Almonte a sentence reduction.
                       ______________________________




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