                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1332
                        ___________________________

                             United States of America

                                Plaintiff - Appellee

                                         v.

                                Ronnie Joe Benson

                              Defendant - Appellant
                                 ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                          Submitted: September 20, 2012
                              Filed: May 29, 2013
                                 ____________


Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

       Ronnie Joe Benson was convicted in 1997 of conspiracy to distribute cocaine
and cocaine base, commonly known as “crack cocaine,” and possession with intent
to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Benson’s
offense conduct included distribution of cocaine, cocaine base, and marijuana. When
a defendant traffics in multiple controlled substances, the sentencing guidelines
provide for a conversion of each drug to “marijuana equivalency” based on ratios set
forth in the guidelines. USSG § 2D1.1, comment. (n.8(D)). According to the
presentence investigation report, which relied on testimony presented during trial to
calculate drug quantities, Benson was accountable for 15,325.48 kilograms of
marijuana equivalent.

        At Benson’s sentencing hearing in October 1997, the district court1 asked
whether Benson’s counsel had any objections to the total marijuana equivalent in the
presentence report. Benson’s counsel replied that he had calculated “an amount of
14,000 kilograms of [marijuana] equivalent,” which also fell within the relevant
guideline range of 10,000 to 30,000 kilograms. The district court adopted the drug
quantity calculations in Benson’s presentence report and found that Benson was
accountable for 15,325.48 kilograms of marijuana equivalent. This quantity
established a base offense level of 36 under the guidelines. A two-level adjustment
for obstruction of justice increased Benson’s total offense level to 38, and his criminal
history category was V. The district court calculated a guideline range of 360 months’
to life imprisonment, and sentenced Benson to concurrent sentences of 360 months’
imprisonment on the conspiracy charge and 51 months’ imprisonment on the
distribution charge. This court affirmed Benson’s conviction and sentence. United
States v. Sanders, 168 F.3d 496 (8th Cir. 1998) (unpublished).

      In 2008, the district court reduced Benson’s sentence pursuant to 18 U.S.C.
§ 3582(c)(2) and USSG § 1B1.10. Amendment 706 to the guidelines changed the
base offense levels for cocaine base, and thus changed the amount of marijuana
equivalent for which a trafficker of cocaine base was accountable. The district court
determined that under the amendment, the total quantity of cocaine, cocaine base, and
marijuana for which Benson was accountable “would have fallen below 10,000


      1
        The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.

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kilograms of marijuana equivalent,” and that his base offense level should be reduced
to 34. See USSG § 2D1.1(c)(3). The district court calculated an amended guideline
range of 292 to 365 months’ imprisonment and resentenced Benson to 292 months’
imprisonment. This court affirmed the district court’s order. United States v. Benson,
329 F. App’x 37, 38 (8th Cir. 2009).

       In November 2011, Benson moved to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) and USSG § 1B1.10(a), based on Amendments 750 and 759 to the
sentencing guidelines. The district court denied the motion on November 16, 2011,
concluding that Benson “presented no evidence to support a finding that he is
responsible for” a quantity of marijuana equivalent that would reduce his guideline
range under the amendments. Benson moved for reconsideration, asserting that the
district court should have made a finding “regarding where and how far below 10,000
kilograms [his] marijuana equivalent fell.” The district court denied Benson’s motion
for reconsideration for the reasons stated in its previous order. Benson’s motion for
reconsideration preserved his objection to the district court’s ruling. Cf. United States
v. Burrell, 622 F.3d 961, 965-66 (8th Cir. 2010).

       Benson now appeals the district court’s refusal to reduce his sentence based on
Amendments 750 and 759. Whether Benson is entitled to a reduction based on those
amendments depends on whether the most recent change in the base offense levels for
trafficking in cocaine base reduced the total amount of marijuana equivalent for which
Benson was accountable at sentencing to below 3,000 kilograms. An amount below
3,000 kilograms would reduce Benson’s base offense level to 32. See USSG
§ 2D1.1(c)(4). In the district court, however, Benson presented no evidence, and
directed the court to no evidence in the record, that showed he was accountable for
fewer than 3,000 kilograms of marijuana equivalent. Benson now concedes that the
record before the district court did not reflect what proportion of the drug quantity for
which he was accountable in 1997 consisted of cocaine base, cocaine, and marijuana,
respectively. Even on appeal, Benson still has not proffered a theory under which the

                                          -3-
evidence of record could support a finding of fewer than 3,000 kilograms of marijuana
equivalent.

        “The guidelines contemplate that the government has the burden of proving the
applicability of sections which would enhance the offense level and the defendant has
the burden of proving the applicability of guideline sections which would reduce the
offense level.” United States v. Dinges, 917 F.2d 1133, 1135 (8th Cir. 1990) (internal
quotation omitted). Benson was the movant seeking to reduce the offense level
pursuant to USSG § 1B1.10. If there is a failure of proof, then his motion fails.
United States v. Hardiman, 469 F. App’x 476, 477-78 (7th Cir. 2012) (concluding that
it is not an abuse of discretion to deny a § 3582(c) motion if “the dearth of specifics
in the record preclude[s] a reduction”); United States v. Wingo, 429 F. App’x 549, 551
(6th Cir. 2011) (holding that movant was ineligible for relief under § 3582(c) because
the record did not include specific drug quantities that showed eligibility, and movant
cited no authority that § 3582(c) “permits a new sentencing hearing—nineteen years
after conviction—to discover whether a defendant may be eligible for discretionary
relief”); cf. United States v. Adkins, 466 F. App’x 302, 303-04 (4th Cir. 2012)
(remanding for additional findings on quantity where district court determined that
quantity of crack cocaine recommended in the presentence report should be reduced
by about seven grams from 31.59 grams, but ultimately stated only that the quantity
was between 20 and 35 grams, so that the precise amount was ambiguous).

      The Ninth Circuit did state summarily in United States v. Sprague, 135 F.3d
1301 (9th Cir. 1998), that once a defendant shows that a retroactive guideline
amendment “is applicable,” the burden of proof “shifts to the government to establish
the base offense level, that is, the weight of the controlled substance.” Id. at 1307.
No other circuit has adopted this view, however, and the Supreme Court recently
made clear that § 3582(c)(2) does not authorize a “plenary resentencing proceeding,”
but permits “only a limited adjustment to an otherwise final sentence.” Dillon v.
United States, 130 S. Ct. 2683, 2690-91 (2010). Benson was free to present

                                         -4-
information from the probation office about drug quantity values, or to argue his case
for a reduction based on the trial transcript and other records of the original
sentencing. But it is not the government’s burden—some sixteen years after the case
was closed—to prove a substance-by-substance breakdown of the total drug quantity
found by the court in 1997 or to demonstrate the inapplicability of § 1B1.10(a). If it
were possible to reconstruct the drug-quantity calculation based on the trial testimony
of witnesses who purchased drugs, then Benson should have performed the calculation
in support of his motion, or at least in support of his appeal, but he failed to do so.

       Benson contends that the district court abused its discretion by failing to
calculate a new marijuana equivalent under the amended guidelines. To be sure,
USSG § 1B1.10(b)(1) directs the district court to “determine the amended guideline
range that would have been applicable to the defendant” under the new amendment,
see Dillon, 130 S. Ct. at 2691, but this injunction applies only after the court finds that
the guideline range applicable to the defendant has subsequently been lowered as a
result of the amendment. USSG § 1B1.10(a)(1), (a)(2)(B). Section 1B1.10(b)(1) does
not relieve the movant of the burden to prove his case, or impose on a district judge
an obligation akin to that of an administrative law judge to develop the record in a
non-adversarial proceeding. Cf. Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).
The guidelines also direct a district court to “[d]etermine the base offense level,” to
“apply any appropriate specific offense characteristics,” and to “[d]etermine the
defendant’s criminal history category,” USSG § 1B1.1(a)(2), (6) (emphases added),
but these provisions do not require the court to develop evidence in support of
findings on aggravating factors if the government fails to produce it. The district
court here correctly found that Benson failed to show that the guideline range
applicable to him had subsequently been lowered as a result of Amendments 750 and
759. The district court thus properly denied Benson’s motion based on a failure of
proof, because Benson “presented no evidence to support a finding that he is
responsible for less than 3,000 kilograms of marijuana equivalent.”



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                                    *       *        *

      The order of the district court is affirmed.

SMITH, Circuit Judge, dissenting.

       I respectfully dissent from the majority's affirmance of the district court's denial
of Benson's motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).
"Because the record is insufficient to determine [Benson's] eligibility for a sentence
reduction," I would vacate the district court's order and "remand with instructions for
the district court to make additional findings as to the amount of crack cocaine
attributable to [Benson] and, based on that finding, determine anew whether [Benson]
can or should benefit from Amendment 750." Adkins, 466 F. App'x at 303–04.

       Section 3582(c)(2) of 18 U.S.C. "requires the court to follow the Commission's
instructions in § 1B1.10 to determine the prisoner's eligibility for a sentence
modification and the extent of the reduction authorized." Dillon, 130 S. Ct. at 2691.
Under U.S.S.G. § 1B1.10(b)(1), the district court must "begin by 'determin[ing] the
amended guideline range that would have been applicable to the defendant' had the
relevant amendment been in effect at the time of the initial sentencing." Id. (alteration
in original) (quoting U.S.S.G. § 1B1.10(b)(1)). After calculating the amended
Guidelines range, "§ 3582(c)(2) instructs a court to consider any applicable § 3553(a)
factors and determine whether, in its discretion, the reduction . . . is warranted in
whole or in part under the particular circumstances of the case." Id. at 2692. But a
"court[] generally may 'not reduce the defendant's term of imprisonment under 18
U.S.C. § 3582(c)(2) . . . to a term that is less than the minimum of the amended
guideline range' produced by the substitution." Id. at 2691 (second alteration in
original) (quoting U.S.S.G. § 1B1.10(b)(2)(A)). The court must also consider the
following factors in deciding "whether and to what extent a reduction in sentence is
warranted": "'the nature and seriousness of the danger to any person or the community

                                           -6-
that may be posed by a reduction in the defendant's term of imprisonment,' U.S.S.G.
§ 1B1.10(b) cmt. n.1(B)(ii), and . . . 'post-sentencing conduct of the defendant,' id. at
cmt. n.1(B)(iii)." Burrell, 622 F.3d at 964.

      "We review a district court's decision under § 3582(c)(2) to reduce a sentence
and the extent of any reduction for an abuse of discretion." Id. But "[w]e review de
novo the district court's determination that [Benson] was not eligible for a sentence
reduction under 18 U.S.C. § 3582(c)(2)." United States v. Browne, 698 F.3d 1042,
1045 (8th Cir. 2012).

      "[D]rug quantity findings are a predicate to . . . eligibility for a sentence
modification . . . ." Wingo, 429 F. App'x at 551. "[T]he absence of any drug quantity
findings means that the district court cannot follow the strictures of the mandatory
Guidelines governing § 3582(c)(2) sentence modifications." Id. at 550 (citing U.S.S.G.
§ 1B1.10; Dillon, 130 S. Ct. at 2691–92).

       Although district courts may not "make findings inconsistent with that of the
original sentencing court" in § 3582(c)(2) proceedings, they are not prohibited from
"making new findings that are supported by the record and not inconsistent with the
findings made in the original sentencing determination." United States v. Duncan, 639
F.3d 764, 768 (7th Cir. 2011) (quotations and citations omitted) (holding that "[t]he
record provide[d] more than ample evidence" to support the district court's finding that
the defendant "was accountable for at least 4.5 kilograms of crack cocaine" based on
"the factual bases underlying [the defendant's] offense" and the defendant's failure to
"object to the PSR at sentencing," which provided that the defendant was "responsible
for at least 137 kilograms of crack cocaine"). "Indeed, new findings are often
necessary where . . . retroactive amendments have altered the relevant drug-quantity
thresholds for determining a defendant's base offense level." United States v. Davis,
682 F.3d 596, 612 (7th Cir. 2012). When ruling on a defendant's § 3582(c)(2) motion,
"a district court may consider the record as a whole, including the defendant's

                                          -7-
motions, the government's responses, and any addenda to the PSRs explaining the
scope of a drug trafficking conspiracy before reaching a conclusion on the drug
quantity attributable to a defendant." Id.

       Here, Benson represented in his motion to reduce his sentence that
"Amendment 750 (parts A and C only) to the Sentencing Guidelines' Drug Quantity
Table in § 2D1.1 [was] applicable to [him]" and "that, based on the quantity of drugs,
a four-level reduction to Offense Level 32 is appropriate, or, in the alternative, a
guideline range of 188–235 months' imprisonment." (Emphasis added.) Benson
represented that he was "eligible for a reduction of his sentence by retroactive
application of Amendment 750 (parts A and C only) pursuant to 18 U.S.C. § 3582(c)
and recently amended Policy Statement § 1B1.10 (effective November 1, 2011)."
(Emphasis added.) Following the district court's denial of his motion, Benson argued
in his motion for reconsideration that he "f[ell] within the 500 grams to 839 grams,
which is the overlap between the old and new guidelines." (Emphasis added.) He
reasoned that "if the [c]ourt found in 2008 that [he] fell below the 10,000 kilogram
marijuana equivalent mark, the [c]ourt was necessarily also making a finding in 2008
that [he] fell within 500 grams, but less than 1.5 kilograms of crack cocaine."

       Under Dillon, the district court was required to determine what Benson's
Guidelines range would have been had Amendment 750 been in effect at his original
sentencing. See Dillon, 120 S. Ct. at 2691. This necessarily involves a determination
of the amount of cocaine base attributable to Benson. See Wingo, 429 F. App'x at 551.
Here, ¶¶ 8, 14, and 19 of the PSR provide that Benson was responsible for 15,325.48
kilograms of marijuana equivalent. At sentencing, although Benson argued that his
drug-quantity calculation was 14,000 kilograms of marijuana equivalent, the district
court "accept[ed] the amounts . . . set forth in the presentence report." Because this
amount was within 10,000 and 30,000 kilograms of marijuana equivalent, the court
calculated a base offense level of 36. Thereafter, in granting Benson's first § 3582
motion based on Amendment 706, the district court determined that Benson's "total

                                         -8-
weight would have fallen below 10,000 kilograms of marijuana equivalent, and that
he was entitled to a 2-point reduction, which made his new base offense level a 34."

       The drug-quantity amount set forth in the PSR, which the district court adopted,
failed to break down what amounts of powder cocaine, cocaine base, and marijuana
were used in the calculation to determine the marijuana equivalency. The PSR only
provides that Benson was "a source of cocaine, crack, and marijuana," "suppl[ying]
large quantities of cocaine to Harold Barbee and varying quantities to others." He also
"supplied crack and marijuana to others." And, as Benson admitted in his motion for
reconsideration, in granting his first § 3582 motion, the district court never made "a
judicial finding . . . regarding where and how far below 10,000 kilograms Defendant's
marijuana equivalent fell."

      The record contains evidence from which the district court could determine the
amount of cocaine base attributable to Benson. See Duncan, 639 F.3d at 767–68;
Davis, 682 F.3d at 612. For example, the court could reconstruct the drug-quantity
calculation based upon trial testimony of drug purchases of witnesses, such as Harold
Barbee, Keith Dunbar, Anthony Black, Keith Hawkins, and Michael Hutton.

       The record does not show whether the district court calculated Benson's
amended Guidelines ranges as if Amendment 750 had been in effect at the time of his
original sentencing. See Dillon, 130 S. Ct. at 2691. Such a determination would
necessarily involve a drug-quantity finding of how much cocaine base was attributable
to Benson. Wingo, 429 F. App'x at 551. Despite Benson's representation in his motion
that he was eligible for a sentence reduction, the district court denied the § 3582(c)(2)
motion because Benson "presented no evidence to support a finding that he is
responsible for less than 3,000 kilograms of marijuana equivalent." The district court
thus concluded that neither Benson's "base offense level nor guideline range changed
as a result of Amendment 750." But crediting the government's representation at the
original sentencing that witness testimony establishes the drug-quantity amounts, I

                                          -9-
cannot infer that "the district court may have felt that it was simply unable to do the
'obligatory math.'" See Hardiman, 469 F. App'x at 478 (quoting Wingo, 429 F. App'x
at 551).

       On remand, the district court could find that the record—specifically, witness
testimony—sets forth sufficient information to confirm how much cocaine base is
attributable to Benson and ultimately whether he is eligible for a sentence reduction.
But, it could also conclude that the record is insufficient to establish the amount of
cocaine base attributable to the defendant and therefore that it is "unable to do the
'obligatory math.'" Id. (quoting Wingo, 429 F. App'x at 551).

       "Because the record is insufficient to determine [Benson's] eligibility for a
sentence reduction," I would vacate the district court's order and "remand with
instructions for the district court to make additional findings as to the amount of crack
cocaine attributable to [Benson] and, based on that finding, determine anew whether
[Benson] can or should benefit from Amendment 750." Adkins, 466 F. App'x at
303–04.
                         ______________________________




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