                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0355p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 08-1699
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 KENTA RAYNARD MOORE,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
                No. 99-00149-001—Janet T. Neff, District Judge.
                                Argued: August 6, 2009
                          Decided and Filed: October 5, 2009
              Before: CLAY, COOK, and KETHLEDGE, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. Nils R. Kessler, ASSISTANT UNITED STATES ATTORNEY,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Sharon A. Turek, FEDERAL PUBLIC
DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. B. René Shekmer,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       CLAY, Circuit Judge. Defendant Kenta Raynard Moore (“Moore”) appeals the order
of the United States District Court for the Western District of Michigan denying his motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Moore contends
that the district court improperly found that he had distributed at least 4.5 kilograms of
cocaine base, thus making him ineligible for a reduction. For the following reasons, the




                                            1
No. 08-1699           United States v. Moore                                                    Page 2


district court’s denial of a sentence reduction for Moore is REVERSED, and the case is
REMANDED so that the district court may reconsider the merits of Moore’s motion.

                                         BACKGROUND

         According to Moore’s Presentence Investigation Report (“PSR”), a confidential
informant for the Drug Enforcement Administration made a controlled purchase of 23.4
grams of crack cocaine from Moore on May 11, 1999. On September 13, 1999, a grand jury
charged Moore in an indictment with one count of knowingly and intentionally distributing
cocaine base in violation of 21 U.S.C. § 841(a)(1). On November 18, 1999, Moore pled
guilty to the single count.

         Moore’s PSR noted as part of its description of Moore’s offense conduct that two
other individuals who pled guilty to drug distribution gave statements to the DEA that they
and Moore pooled money to purchase crack cocaine and powder cocaine “in kilogram
quantities” from a supplier in Chicago. The PSR advised that “[the three defendants] paid
anywhere from $20,500.00 to $24,000.00 per kilogram, and would purchase anywhere from
two to three kilograms per month, sometimes as often as two to three times per month.” The
PSR also stated that in total, the two proffering defendants “estimated the group purchased
between 180 to 300 kilograms of cocaine.” (PSR at 4.) The PSR also stated that “[f]or
computation purposes, Mr. Moore is being held responsible for at least 1.5 kilograms of
cocaine base.” (PSR at 5.) At the time of Moore’s sentence, under the United States
Sentencing Guidelines (“Guidelines”), the highest base offense level of 38 applied to a
                                                                                                    1
defendant distributing “1.5 KG or more of cocaine base.” U.S.S.G. § 2D1.1(c) (1999).

         The PSR recommended a three-level reduction for acceptance of responsibility,
noting that Moore “has provided complete information to the government and entered
a timely plea of guilty.” (PSR at 6.) Moore admitted to the probation officer preparing
the PSR that “his overall involvement in the distribution of drugs exceeded 1.5
kilograms of crack cocaine, although he could not be more specific.” (PSR at 5-6.)


         1
          Because Moore was sentenced in May 2000, the Guidelines effective November 1999 should
have been used. The PSR indicates that its recommendations were based on the Guidelines effective
November 1998. Regardless, because the Guidelines provision at issue, U.S.S.G. § 2D1.1(c), was identical
in the 1998 and 1999 editions, the use of the incorrect sentencing guideline is harmless.
No. 08-1699        United States v. Moore                                         Page 3


After factoring in a three-level reduction for acceptance of responsibility, the PSR
advised that Moore’s base offense level was 35, and, stating that Moore had a Criminal
History Category of III, recommended a Guidelines range of 210 to 262 months. On
April 25, 2000, the government moved the court for a two-level downward departure
pursuant to U.S.S.G. § 5K1.1, because Moore had provided substantial assistance to the
government.

       At Moore’s sentencing hearing on May 1, 2000, his counsel informed the court
that there were no factual inaccuracies in the PSR. The court found that “at least 1.5
kilograms of base cocaine are attributable to Mr. Moore[.]” Appellant’s Br. Ex 4 at 5.
The court granted the government’s motion for a two-level downward departure, noting
that Moore’s recommended Guidelines range was now 168 to 210 months. The court
then sentenced Moore to 168 months of imprisonment. On February 23, 2004, the
district court granted the government’s motion pursuant to Federal Rule of Criminal
Procedure 35(b) to reduce Moore’s sentence because he had testified in the trial of his
drug supplier. Accordingly, the court reduced Moore’s sentence to 135 months of
imprisonment.

       Effective November 1, 2007, the United States Sentencing Commission
promulgated “Amendment 706,” amending the Guidelines to reduce the base offense
level for crack cocaine offenses by two offense levels. United States v. Poole, 538 F.3d
644, 645 (6th Cir. 2008). After the enactment of Amendment 706, a defendant now had
to be responsible for “4.5 [kilograms] or more of cocaine base,” an increase from 1.5
kilograms in 2000, in order to receive an offense level of 38; a finding of “at least 1.5
[kilograms] but less than 4.5 [kilograms] would mandate a Guidelines offense level of
36.” U.S.S.G. supp. to app. C, amend. 706 (Nov. 1, 2007), incorporated into U.S.S.G.
§ 2D1.1(c). Effective March 3, 2008, Amendment 706 was made retroactive. Poole,
538 F.3d at 645-46. On February 25, 2008, Moore filed a pro se motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2), asserting that he was eligible for the
reduction under Amendment 706.
No. 08-1699         United States v. Moore                                           Page 4


       On March 19, 2008, the United States Probation Office submitted a Sentence
Modification Report (“SMR”). In a section entitled “Original Guideline Calculation as
determined by the Court at Sentencing,” the SMR states: “The United States Sentencing
Commission Guideline for violation of 21 U.S.C. § 841(a)(1) . . . calls for a base offense
level of 38 for offenses involving at least 1.5 kilograms of cocaine base. According to
the Offense Conduct section, this defendant’s criminal activity involved at least 1.5
kilograms of cocaine base.” (SMR at 1.) In a subsequent section entitled “Amended
Guideline Calculation,” the SMR states: “The United States Sentencing Commission
Guideline for violation of 21 U.S.C. § 841(a)(1) . . . calls for a base offense level of 38
for offenses involving at least 4.5 kilograms of cocaine base. According to the Offense
Conduct section, this defendant’s criminal activity involved at least 4.5 kilograms of
cocaine base.” (SMR at 2.) Under “Public Safety Factors,” the SMR states that “Mr.
Moore’s involvement in cocaine sales was significant, being responsible for between 180
and 300 kilograms of cocaine.” (SMR at 3.) Finally, in a section entitled “The
defendant is ineligible for reduction in sentence for the following reason(s),” the SMR
includes a checked box next to “Quantity used to drive guideline exceeds 4,500
grams[.]” (SMR at 4.) On April 10, 2008, Moore submitted a response objecting to the
SMR.

       On April 25, 2008, the district court denied Moore’s motion in a two-paragraph
order, in which it stated:

              . . . [T]he motion is denied because defendant is ineligible for
       reduction in sentence because the quantity of drugs used to drive the
       guidelines exceeds 4,500 grams.
               Defendant argues that the amount of drugs in which he was
       involved in the original offense conduct as reported in the Presentence
       Report is “not exact,” “open to interpretation,” and “speculative at best”.
       However, even assuming for sake of argument without conceding the
       point, that defendant’s argument is correct, it is clear that defendant
       raised no factual or legal objection to the Presentence Report. His
       collateral challenge to the amount of drugs stated in the Presentence
       Report almost 8 years after the fact, is too late. His failure to object at
       the time of sentencing stands as an admission of the fact. United States
       v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005).
No. 08-1699        United States v. Moore                                          Page 5


(ROA at 31.)

       Moore timely appealed the denial of his motion for a reduction. (ROA at 32.)

                                     DISCUSSION

                                 Standard of Review

       “A motion for modification made under 18 U.S.C. § 3582(c)(2) is reviewed for
an abuse of discretion.” United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007). “A
district court abuses its discretion when      it applies the incorrect legal standard,
misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.”
United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005). This Court should reverse the
district court’s decision only if it is “firmly convinced that a mistake has been made.”
McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir. 2005). “When reviewing the
district court’s application of the Sentencing Guidelines, we review the district court’s
factual findings for clear error and mixed questions of law and fact de novo.” United
States v. May, 568 F.3d 597, 604 (6th Cir. 2009).

                                        Analysis

       Moore argued before the district court that he was entitled to a reduction in his
sentence because the information contained in his initial PSR with respect to the quantity
of crack he distributed “is not exact and is open to interpretation.” (ROA at 14.) The
district court denied Moore’s motion for a modified sentence. The district court held
that Moore could not contest the SMR’s factual finding that he possessed more than 4.5
kilograms of crack cocaine because he did not object to the PSR at his original
sentencing, and was therefore bound by its facts. The district court correctly stated that
Moore is bound by the factual allegations in the PSR to which he did not object. See
United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005). However, Moore’s PSR
never stated that he was involved in possessing or distributing more than 4.5 kilograms
of crack; the PSR stated only that “for computational purposes, Moore is being held
responsible for at least 1.5 kilograms of cocaine base.” (PSR at 5.)
No. 08-1699        United States v. Moore                                          Page 6


       Moreover, while the facts described in the offense conduct could have allowed
the district court to find by a preponderance of the evidence that Moore was responsible
for at least 4.5 kilograms of crack, the facts set forth in the PSR do not mandate such a
finding. The PSR stated that DEA agents observed Moore carry out one sale of 23.4
grams of crack. The PSR also noted that Moore and two other individuals pooled their
money to purchase crack and powder cocaine “in kilogram quantities” from a supplier
in Chicago, perhaps as often as two or three times per month. However, the PSR never
explains how much of the drugs they purchased was crack and how much was cocaine;
the PSR states that the two other individuals “estimated” that they purchased between
180 and 300 kilograms of cocaine, but did not disclose how much crack the team
purchased or cooked. Thus, by failing to object to any statement in the PSR at his
original sentencing, Moore did not admit that he was responsible for 4.5 kilograms of
crack; he could have agreed with all of the PSR’s factual allegations, while still
believing that the total amount of crack he possessed or distributed was less than 4.5
kilograms. Accordingly, the district court committed legal error by refusing to consider
Moore’s objection to the SMR.

       The only remaining question is whether the error was harmless–i.e., whether we
can be certain that the error did not affect the disposition of Moore’s motion. In the
analogous context of a district court’s procedural error at sentencing, the harmless error
standard “requires the party who wishes to defend the sentence to ‘persuade the court of
appeals that the district court would have imposed the same sentence absent the
erroneous factor.’” United States v. Anderson, 526 F.3d 319, 330 (6th Cir. 2008)
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)); see also United States
v. Vandeberg, 201 F.3d 805, 812 (6th Cir. 2000) (“Remand is appropriate unless the
appellate court is convinced that the trial court would have imposed the same sentence
absent [its] misinterpretation of the guideline.”) (quotations and citation omitted). The
government cannot make the necessary showing to convince us that the district court
would have imposed the same sentence absent its error.        The district court did not
indicate how it would have responded to Moore’s motion if it had understood that
Moore’s previous admissions did not bind its resolution of his motion. To be sure, the
No. 08-1699            United States v. Moore                                                      Page 7


district court could have made findings of fact based upon the PSR that would have
provided a basis for rejecting Moore’s motion on its merits. Yet the district court never
made any such findings, and because it never did so, we cannot know for certain that the
district court would have denied the motion.

         The Guidelines advise that:

         [i]n determining whether, and to what extent, a reduction in the
         defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this
         policy statement is warranted, the court shall determine the amended
         guideline range that would have been applicable to the defendant if
         [Amendment 706] had been in effect at the time the defendant was
         sentenced. In making such determination, the court shall substitute only
         [Amendment 706] for the corresponding guideline provisions that were
         applied when the defendant was sentenced and shall leave all other
         guideline application decisions unaffected.
U.S.S.G. § 1B1.10(b)(1).

         None of the facts contained in Moore’s original PSR necessarily render Moore
ineligible for a reduction under Amendment 706. The PSR did not specifically link
Moore to 4.5 kilograms of crack; Moore never admitted to any facts beyond those in the
PSR; and the district court at sentencing did not adopt any more specific factual findings
regarding the quantity of crack Moore distributed. Determining whether Moore’s
Guidelines range would have been amended if Amendment 706 “had been in effect at
the time the defendant was sentenced” is impossible. U.S.S.G. § 1B1.10(b)(1).2 The
PSR recommended that “for computational purposes” Moore be held responsible for “at
least 1.5 kilograms,” tracking the highest offense level at that time. (PSR at 5.) Had
Amendment 706 been in place, the PSR would likely have either computed Moore’s
drug quantity as “at least 4.5 kilograms” or, if the quantity was lower than 4.5 kilograms,
would have needed to be more precise than prefacing the stated quantity with “at least.”

         2
           For this reason, we do not believe Moore’s subsequent testimony at the trial of his supplier that
he had picked up six to eight kilograms of cocaine base in Chicago means Moore is necessarily ineligible
for the reduction. Moore was sentenced on May 1, 2000, while his testimony was given in August 2000.
The district court should make its decision based on the information that was available at the time of
sentencing, although we acknowledge the judge has the discretion to deny Moore’s motion even if his
Guidelines range is lowered. See United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997) (“[A]
district court has the discretion to deny a section 3582(c)(2) motion, even if the retroactive amendment has
lowered the guideline range.”).
No. 08-1699        United States v. Moore                                         Page 8


In the absence of any previous factual finding that would have rendered Moore
ineligible, nothing in § 3582(c)(2) or the Guidelines precluded the district court from
granting Moore’s motion for a modification. Because the district court could have
granted Moore a sentence reduction by finding that the government never proved that
Moore was responsible for a quantity of crack greater than 4.5 kilograms, the district
court’s error was not harmless and constituted an abuse of discretion. See United States
v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005).

       Having found that the district court’s error was not harmless, we remand Moore’s
case back to the district court for a ruling on his motion. Because the district court
barred Moore from objecting to the recommended findings in the SMR, it never
considered his argument that the facts in the PSR do not support holding him responsible
for 4.5 kilograms of crack. See United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006).
(“When, on appeal, a defendant’s argument and supporting evidence presents an
arguably meritorious claim for a lesser sentence, but there is little to suggest that the
district court actually considered it, then remand may be appropriate.”). We do not agree
with Moore that the district court’s previous determination of “more than 1.5 kilograms”
means that it cannot also find more than 4.5 kilograms. Unlike the prior sentencing in
United States v. Adams, 104 F.3d 1028, 1030 (8th Cir. 1997), nothing in the record from
Moore’s initial sentencing indicates that the district judge made any specific
determination other than more than 1.5 kilograms. Since 4.5 kilograms is more than 1.5
kilograms, a new factual finding of the higher quantity is not inconsistent with the
court’s determination at Moore’s original sentencing. Remand is appropriate here not
because the district court must apply the reduction, but because no factual finding
definitively linked Moore with 4.5 kilograms of cocaine base.

                                   CONCLUSION

       For the reasons set forth above, the district court’s denial of Moore’s sentencing
reduction motion is REVERSED, and the case is REMANDED for consideration of
Moore’s motion on the merits.
