                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0130n.06

                                        Case No.13-2524

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                           Feb 13, 2015
UNITED STATES OF AMERICA,                          )                   DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON   APPEAL    FROM  THE
v.                                                 )       UNITED STATES DISTRICT
                                                   )       COURT FOR THE WESTERN
ERNESTO MCKINNEY,                                  )       DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellant.                        )
                                                   )
____________________________________/              )

Before: COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Defendant-Appellant Ernesto McKinney appeals

the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. Because

the district court did not err in denying the motion, we AFFIRM.

                                      I. BACKGROUND

       McKinney pleaded guilty in 2004 to conspiracy to possess with intent to distribute five

kilograms or more of cocaine, fifty grams or more of cocaine base, and an unspecified amount of

marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(ii). The Presentence

Investigation Report (“PSR”) prepared for sentencing stated that McKinney’s “criminal activity

involved more than 1.5 kilograms of cocaine base.” PSR ¶ 269. Under the then-applicable U.S.

Sentencing Guidelines, more than 1.5 kilograms of cocaine base established a base offense level
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United States v. Ernesto McKinney

of 38. After applying sentencing adjustments, the presentence examiner concluded that

McKinney’s total offense level was 37, with a criminal history category of IV, resulting in a

guideline range for imprisonment of 292 to 365 months. PSR ¶ 349.

        McKinney initially objected to the inclusion of the following in his PSR: 1) proffer

statements he made to investigators and the presentence examiner1 and 2) the substantial

quantities of drugs attributable to him beyond the minimum threshold quantities. Appellee’s Br.

at 5; see also PSR at addendum. These objections were resolved in a meeting with the

presentence examiner. See PSR at addendum. McKinney submitted no objections to the PSR to

the district court. See id. At sentencing, the district judge expressly asked McKinney whether he

had any objections to the facts and quantity of cocaine set forth in the PSR, stating, in part:

        Any facts in that [PSR] to which you object, sir? Do you agree that you’re
        responsible for, for example, the quantity of cocaine set forth in the [PSR], which
        is—I didn’t see an objection to it, but these things have a way of coming back to
        you—more than 1.5 kilograms of crack cocaine? Were you involved with more
        than 1.5 kilograms of crack cocaine?

R. 819 at 7–8, Page ID# 2147–48. McKinney responded “Yeah” to the district judge’s inquiry.

Id. at 8, Page ID# 2148. The judge then adopted the guideline calculation set forth in the PSR

and sentenced McKinney to 292 months on Count 1 and 120 months on Count 15, to run

concurrently. Id. at 14, Page ID# 2154. The government filed a Federal Rule of Criminal

Procedure 35(b) substantial-assistance motion and the district court granted it, thus reducing

McKinney’s sentence to 235 months. R. 660.

        In 2008, McKinney moved for a sentence reduction pursuant to § 3582(c)(2) based on

Amendment 706. R. 656, 680. Amendment 706 established that “more than 4.5 kilograms” of

cocaine base must be attributable to a defendant to establish the base offense level of 38. U.S.

1
 The Guidelines generally limit reliance on proffer-protected information in determining the applicable guideline
range. See U.S.S.G. § 1B1.8(a) & cmt. 5.

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United States v. Ernesto McKinney

Sentencing Guidelines Manual (“U.S.S.G.”) app. C, amend. 706 (2007). The United States

Probation Office prepared a Sentence Modification Report (“SMR”). The SMR recommended no

sentence reduction. It concluded that the quantity of cocaine base attributable to McKinney, set

forth in the original PSR, exceeded more than 4.5 kilograms. As a result, McKinney’s base

offense level would not change under Amendment 706. SMR (Aug. 18, 2010) at 8. The district

court agreed with the Probation Office and concluded that McKinney was not entitled to a

sentence reduction. The district court reasoned that the conduct described in the PSR, to which

McKinney had not objected, showed that McKinney was responsible for more than

4.5 kilograms of cocaine base. R. 807 at 3, Page ID# 2123 (citing United States v. Moore,

582 F.3d 641, 644 (6th Cir. 2009) (“[A defendant] is bound by the factual allegations in the PSR

to which he did not object.”)). The government filed another Rule 35(b) motion and the court

reduced McKinney’s sentence to 214 months. R. 809. McKinney appealed.

       We affirmed the district court’s judgment. See United States v. McKinney, 464 F. App’x

444 (6th Cir. 2012) (hereinafter known as McKinney I). On appeal, McKinney contended that the

district court’s decision was in error because the district court did not specify the particular

paragraphs of the PSR on which it relied. Id. at 447. McKinney asserted that this failure made it

impossible to review whether the district court, in making its quantity determination, relied on

the permissible record and not on proffer-protected information or unreliable information from

confidential informants. We rejected this argument. We noted that the district court referred to

the undisputed facts in the PSR to find that McKinney was responsible for more than

4.5 kilograms of cocaine base. Id. We stated that, because McKinney did not object at sentencing

to the facts contained in the PSR, “he will not now be heard to complain that the information

[contained therein] is unreliable.” Id. We also noted that paragraphs 170 and 171, which contain


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United States v. Ernesto McKinney

information obtained from a confidential informant, established that McKinney was responsible

for six kilograms of cocaine base. Id. Further, we noted that other paragraphs of the PSR showed

that “multiple additional kilograms of cocaine base were attributable to McKinney, even without

considering the information in the PSR concerning McKinney’s proffer to the Government.” Id.

Thus, we concluded that the district court did not err when it concluded that the undisputed facts

in the PSR established that McKinney was responsible for a drug quantity of more than

4.5 kilograms of cocaine base. Id. at 447–48.

       In November 2011, McKinney filed another § 3582(c)(2) motion for a sentence reduction

based on the newly enacted Amendment 750. R. 844, 853. Amendment 750 raised the threshold

amount of cocaine base necessary to trigger a base offense level of 38 to 8.4 kilograms. U.S.S.G.

app. C, amend. 750. In opposing McKinney’s motion, the government asserted that the

undisputed paragraphs of the original PSR showed that McKinney was responsible for “at least

the 8.4 kilogram or more threshold quantity” of cocaine base. R. 931 at 3 (citing PSR ¶¶ 75, 82,

94, 96, 111, 151, 170, 171, 179, 211, 226, 235, 236, 239, 241, 244, 246–47, and 252). Thus, the

government contended that the previous finding that McKinney was responsible for “more than

4.5 kilograms of cocaine base” did not preclude the district court from finding McKinney

responsible for 8.4 kilograms. Id. In apparent agreement, the district court entered a form order

denying the § 3582(c)(2) motion. R. 933.

       On appeal, we remanded the case with instructions for the district court to enter a new

order explaining the grounds for its decision. United States v. McKinney, No. 13-1009 (6th Cir.

Aug. 29, 2013). On remand, the district court again denied the sentence reduction. R. 948. In

doing so, the district court cited paragraphs 75, 82, 94–96, 151, 170–71, and 198 of the PSR, all




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United States v. Ernesto McKinney

of which were undisputed and alone link McKinney to more than 8.4 kilograms of cocaine base.

R. 947. McKinney now appeals the district court’s denial of his § 3582(c)(2) motion.

                                             II. ANALYSIS

       McKinney contends that the district court erred in denying his motion for a sentence

reduction because the paragraphs that the district court cited in making its quantity determination

include: 1) proffer-protected information and 2) unreliable information from confidential

informants. McKinney acknowledges that we held in McKinney I that he waived his right to

challenge the reliability of the facts contained in the PSR by failing to object to the PSR during

his original sentencing. However, McKinney asserts that we came to this conclusion based on

our prior decision in United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc). In Vonner,

we held that a defendant who fails to object a PSR “accept[s] all of the factual allegations

contained in it.” Id. at 385 (citation omitted). McKinney contends that he should be nonetheless

permitted to challenge the facts set forth in the original PSR because, in United States v.

Valentine, 694 F.3d 665 (6th Cir. 2012), we effectively overruled Vonner’s holding related to

waiver. Appellant’s Br. at 15–16.

       Under 18 U.S.C. § 3582(c)(2), a district court may modify a sentence on behalf 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.” To determine whether a

modification is warranted, the district court follows the two-step inquiry established in Dillon v.

United States, 560 U.S. 817 (2010). At step one, the court determines the defendant’s eligibility

for a sentence modification under the Sentencing Commission’s policy statements, as well as the

extent to which any reduction is authorized. Id. at 827. Specifically, the court must “determine

the amended guideline range that would have been applicable to the defendant” had the subject


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United States v. Ernesto McKinney

amendment been in effect at the time of the defendant’s original sentencing. Id. At step two, if

the court determines the defendant is eligible for a sentence reduction, the district court considers

whether a reduction is warranted under 18 U.S.C. § 3553(a). Id.

       We review a district court’s determination under step one that a defendant is ineligible for

a sentence reduction de novo. United States v. Watkins, 625 F.3d 277, 280 (6th Cir. 2010). But

we review the factual findings underlying the district court’s legal conclusions for clear error.

Valentine, 694 F.3d at 669 (citation omitted). By contrast, we review the district court’s decision

under step two for an abuse of discretion. Watkins, 625 F.3d at 280.

       In this case, the district court did not err in determining that McKinney was not eligible

for a sentence reduction under Amendment 750. We held in McKinney I that McKinney is bound

by the factual averments in the PSR, including the averment that he was responsible for “more

than 1.5 kilograms of cocaine base.” As we indicated in McKinney I, since 8.4 kilograms is more

than 1.5 kilograms, a new factual finding of the higher quantity is not inconsistent with the

district court’s determination at the original sentencing that more than 1.5 kilograms of cocaine

base is attributable to McKinney. See 464 F. App’x at 447 (citing Moore, 582 F.3d at 646).

Furthermore, the facts of the PSR, to which McKinney failed to object, “specifically link”

McKinney to at least 8.4 kilograms. See Moore, 582 F.3d at 645. Although McKinney responds

that these facts are unreliable because they contain information from proffer sessions and

confidential informants, McKinney indicated at the original sentencing that he did not object to

the PSR’s inclusion of such information. R. 819 at 8, Page ID# 2148. Moreover, we stated in

McKinney I that, even if the paragraphs that McKinney alleges to contain proffer-protected

information are excluded, the PSR still establishes “multiple additional kilograms” attributable to

McKinney. 446 F. App’x at 447.


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United States v. Ernesto McKinney

       McKinney’s reliance on Valentine is also misplaced. In McKinney’s opinion, Valentine

holds as follows: By not objecting to a PSR’s statement that the defendant is responsible for

more than a certain amount of drugs (e.g., 1.5 kilograms), a defendant does not waive the right to

later argue that the PSR fails to show that the defendant is responsible for more than

4.5 kilograms if the defendant lacks an incentive to object to anything higher than 1.5 kilograms.

To support this assertion, McKinney cites footnote five of Valentine. 694 F.3d at 672 n.5. Of

course, it is settled law in this circuit that one panel cannot overrule the published precedent of a

prior panel, let alone of the en banc court. See, e.g., Bell v. Johnson, 308 F.3d 594, 607 (6th Cir.

2002). Furthermore, the footnote does not stand for the proposition for which McKinney cites it.

In this footnote, the court rejected the argument that, in response to a motion for a sentence

reduction, the government waives the right to argue that the defendant is responsible for an

amount higher than 1.5 kilograms when, at the original sentencing, the government does not

present evidence of a higher amount. If anything, this statement would seem to support the

United States’ position that the PSR establishes that McKinney was responsible for at least

8.4 kilograms of cocaine base even though the PSR states that his “criminal activity involved

more than 1.5 kilograms of cocaine base.” In any case, the remainder of the footnote, which

McKinney cites to support his reading of Valentine, is passing dicta. Hence, it has no

precedential effect. See Mich. Spine & Brain Surgeons, PLLC v. State Farm Mut. Auto Ins. Co.,

758 F.3d 787, 792 (6th Cir. 2014) (“The holding of a decision, which has precedential effect, is

to be contrasted with dicta, which does not have precedential effect.”). Therefore, this dicta

cannot modify Vonner and the related cases holding that defendants waive the right to challenge

the reliability of the information in a PSR by not objecting to it at the original sentencing.




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United States v. Ernesto McKinney

       We also find unconvincing McKinney’s assertion that he lacked an incentive to challenge

the PSR’s statement that he was responsible for more than 1.5 kilograms of cocaine base. The

record indicates that McKinney did initially challenge the quantities of drugs attributable to him,

though this objection was resolved prior to sentencing. Appellee’s Br. at 5. Furthermore, at

sentencing, McKinney chose not to object to the quantity of drugs contained in the PSR, even

after the district court judge expressly warned him that admitting responsibility for more than 1.5

kilograms could have repercussions at a later time. See R. 819 at 8, Page ID# 2148. (“[T]hese

things have a way of coming back to you . . . .”). Thus, not only did McKinney fail to object to

the quantities of drugs attributable to him, he was forewarned about the implications of failing to

do so. Consequently, McKinney has failed to present any reason sufficient to excuse his waiver.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment denying

McKinney’s motion for a sentence reduction.




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