                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                     No. 13-30253
             Plaintiff-Appellee,
                                                 D.C. No.
                  v.                       3:98-cr-00208-HA-22

 ADOLPH SPEARS, SR., AKA
 Pops,                                           OPINION
          Defendant-Appellant.


      Appeal from the United States District Court
                for the District of Oregon
    Ancer L. Haggerty, Senior District Judge, Presiding

           Argued and Submitted October 13, 2015
                     Portland, Oregon

                       Filed June 2, 2016

     Before: A. Wallace Tashima, Ronald Lee Gilman*,
             and Carlos T. Bea, Circuit Judges.

                    Opinion by Judge Bea;
                   Dissent by Judge Tashima




 *
   The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
2                   UNITED STATES V. SPEARS

                           SUMMARY**


                           Criminal Law

    The panel affirmed the district court’s denial of a motion
to modify a sentence under 18 U.S.C. § 3582(c)(2) on the
basis of Sentencing Guidelines Amendment 750, which raised
the quantity thresholds for certain offenses involving crack
cocaine.

     When the defendant was sentenced to life imprisonment
in a conspiracy case in 2001, the maximum base offense level
of 38 was triggered for a crack cocaine offense if the conduct
involved at least 1.5 kilograms of the drug. Pursuant to
Amendment 750, made retroactive by the Sentencing
Commission, the threshold was increased to 8.4 kilograms.

    The panel held that the district court lacked jurisdiction to
modify the defendant’s sentence because the amended
Guidelines table would still yield a Guidelines range of life
imprisonment where, at sentencing in 2001, the district court
found that 11 kilograms of powder cocaine, which was to be
cooked into crack cocaine, was part of the defendant’s
relevant conduct.

    The panel held that a motion to modify a sentence under
§ 3582(c)(2) was not a proper vehicle for arguing that the
district court failed to comply with Fed. R. Crim. P. 32(c) by
not responding to each of the defendant’s objections to the
presentence report at sentencing in 2001.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. SPEARS                    3

    The panel held that Guidelines Amendment 782, which
further raised the crack cocaine quantity thresholds, did not
provide a basis for reversing the denial of the defendant’s
motion to modify his sentence. Amendment 782 went into
effect in November 2014, after the district court’s denied the
defendant’s motion in 2013. The panel stated that the
defendant would need to file a new motion under
§ 3582(c)(2) in order to benefit from Amendment 782.

     Dissenting, Judge Tashima wrote that the district court
had jurisdiction to consider the defendant’s motion on the
merits because he was sentenced based on a sentencing range
that was subsequently lowered by the Sentencing
Commission. Judge Tashima also wrote that even under the
majority’s approach, the sentencing court did not make any
specific finding that the defendant’s offense conduct involved
at least 8.4 kilograms of crack cocaine. Judge Tashima would
reverse and remand for the district court to exercise its
discretion as to whether the defendant’s sentence should be
reduced.


                        COUNSEL

Michael R. Levine (argued) and Matthew G. McHenry,
Levine & McHenry LLC, Portland, Oregon, for Defendant-
Appellant.

Scott E. Bradford (argued), Assistant United States Attorney,
and Kelly A. Zusman, Appellate Chief, United States
Attorney’s Office, Portland, Oregon, for Plaintiff-Appellee.
4                UNITED STATES V. SPEARS

                         OPINION

BEA, Circuit Judge:

    This appeal challenges a district court’s denial of a
motion to modify a sentence under 18 U.S.C. § 3582(c)(2).
Appellant Adolph Spears, Sr. was convicted of various crimes
in 2001 based on his involvement in a cocaine trafficking
conspiracy. The court sentenced him to life imprisonment. In
2013, Spears filed the instant motion seeking a reduction of
his sentence. His argument was based on an amendment to
the U.S. Sentencing Guidelines that increased the quantity
thresholds for crack cocaine offenses. In some cases, the
amendment would have the effect of yielding a more lenient
sentence for offense conduct involving a given quantity of
crack cocaine. The district court concluded that it lacked
jurisdiction to modify Spears’ sentence because the amended
Guidelines table would still yield a Guidelines range of life
imprisonment. It denied Spears’ motion. For the reasons
stated below, we agree that the court lacked jurisdiction to
modify Spears’ sentence. We affirm.

    I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial

    Spears and several co-defendants were charged with
conspiring to manufacture, distribute, and possess with intent
to distribute powder cocaine and crack cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846, and with other crimes.
Count 1 of the eighth superseding indictment charged certain
of Spears’ co-conspirators with driving loads of powder
cocaine from California to Portland, Oregon, where it was
manufactured into crack cocaine and distributed. Among
                  UNITED STATES V. SPEARS                        5

other vehicles, the co-conspirators allegedly used on multiple
occasions a Cadillac Eldorado with hidden compartments to
transport the cocaine. According to the indictment, one of
these trips occurred in November 1997, when some of
Spears’ co-conspirators arranged for approximately 11
kilograms of powder cocaine to be driven from Fresno,
California to Portland. Count 1 charged Spears with
possessing this particular shipment of cocaine jointly with
several co-defendants. The case was tried to a jury before
Judge Ancer L. Haggerty. On December 7, 2000, the jury
returned a guilty verdict on Count 1, and on other counts not
relevant to this appeal.

B. Sentencing

    The Presentence Report (“PSR”) stated that the
conspiracy involved transporting multi-kilogram loads of
powder cocaine from California to the Portland area. Once
the cocaine arrived in Portland, various members of the
conspiracy “cooked” it into crack cocaine.1 According to the
PSR, one kilogram of powder cocaine yielded a slightly
greater quantity of crack cocaine. The PSR described several
overt acts of the conspiracy, including transportation of the
11-kilogram load of powder cocaine in November 1997. The
PSR attributed ownership of the 11-kilogram load to Spears
and two other co-conspirators.

    In calculating Spears’ base offense level, the PSR stated
that Spears’ relevant offense conduct included “more than 1.5
kilograms of [crack] cocaine.” This statement reflected the
drug quantity table in effect at the time of Spears’ sentencing.

  1
    Crack cocaine is a type of cocaine base. Powder cocaine is not.
Kimbrough v. United States, 552 U.S. 85, 94 (2007).
6                UNITED STATES V. SPEARS

The table assigns a base offense level based on the identity
and quantity of drugs involved in the offense. The maximum
base offense level provided for is level 38. At the time of
Spears’ sentencing, offense level 38 was triggered by 1.5
kilograms or more of crack cocaine. U.S. Sentencing
Guidelines Manual § 2D1.1(c) (2000). The PSR added 2
levels because the conspiracy involved dangerous weapons,
and it added 4 levels because Spears acted as a leader in the
conspiracy. Thus, the PSR calculated a total offense level of
44.

   The PSR calculated a criminal history category of IV.
Category IV, combined with offense level 44, yielded a
Guidelines “range” of life imprisonment.

     Spears objected to several portions of the PSR in a letter
to the U.S. Probation Office. As is relevant here, Spears
objected to the PSR’s determination that his conduct involved
more than 1.5 kilograms of crack cocaine. According to the
letter, “[t]here is no evidence that Mr. Spears ever possessed
or distributed [crack] cocaine.” Spears objected to the PSR’s
statement that the 11-kilogram load of powder cocaine in the
Cadillac belonged to him. He argued that his offense level
calculation should be based on only a particular series of
transactions in which Spears bought a total of 5 to 15
kilograms of powder cocaine from two other co-conspirators.
Spears did not dispute the PSR’s assertion that one kilogram
of powder cocaine yielded a slightly greater quantity of crack
cocaine.

    Judge Haggerty held a sentencing hearing on May 7,
2001. Spears’ attorney argued that Spears was not responsible
for any quantity of crack cocaine. The attorney argued that
the trial evidence did not establish that Spears was involved
                  UNITED STATES V. SPEARS                      7

in cooking powder cocaine into crack cocaine. Furthermore,
he argued that Spears was not involved in trafficking cocaine
from Fresno to Portland, and that Spears had no connection
to the 11-kilogram load of powder cocaine in the Cadillac.
The court rejected these arguments. Judge Haggerty said “[a]s
to the objections by [Spears’ counsel], I think I have to
resolve all of those against you.” The court found that
“overwhelming evidence” supported the assertion that
Spears’ relevant offense conduct in the conspiracy involved
“manufactur[ing] in excess of one and a half kilograms of
crack cocaine.” Consistent with the PSR, the court calculated
a base offense level of 38. It also adopted the deadly weapon
and leadership enhancements, and criminal history category
IV. As to Count 1, the court sentenced Spears to life
imprisonment.

    The court issued a written Findings of Fact order on May
14, 2001. The order specifically addressed counsel’s
objection to the PSR’s ultimate conclusion that Spears’
relevant conduct included more than 1.5 kilograms of crack
cocaine. The court answered the objection by stating that
“[t]he court finds that the trial evidence showed that the
defendant had an interest in the 11 kilos of cocaine that was
charged in Count 1.” Furthermore, the court also found “that
all other uncontroverted facts contained in the Presentence
Report” were “true and accurate.” Finally, the court wrote
that “[o]ther than those paragraphs previously amended,
clarified or adjusted; or upon which no finding is necessary;
the court adopts the presentence report . . . as its own findings
and conclusions.”

    Spears appealed his conviction in an earlier proceeding.
We affirmed. United States v. Spears, 60 F. App’x 671 (9th
Cir. 2003).
8                UNITED STATES V. SPEARS

C. Motion to Reduce Sentence

     Amendment 750 to the Sentencing Guidelines raised the
quantity thresholds for certain offenses involving crack
cocaine. U.S.S.G. app. C, amd. 750 (2011). The Sentencing
Commission made this amendment retroactive in 2011. Id.
amd. 759. Under the amended drug quantity table in the 2012
Sentencing Guidelines, the maximum base offense level of 38
is triggered for crack cocaine offenses only if the conduct
involves at least 8.4 kilograms of the drug. U.S.S.G.
§ 2D1.1(c) (2012). This represents a significant increase from
the 1.5 kilogram threshold that applied at the time of Spears’
sentencing. Under the 2012 Guidelines, if the offense conduct
involved at least 840 grams but less than 2.8 kilograms of
crack cocaine, then the base offense level is 34. Id.

    In March 2013, Spears filed a Motion to Reduce Sentence
in light of the reductions and pursuant to a provision of the
Fair Sentencing Act, 18 U.S.C. § 3582(c)(2). He argued that
in 2001 the court did not find that his conduct involved any
specific amount of crack cocaine greater than 1.5 kilograms.
Under the amended 2012 drug quantity table, 1.5 kilograms
of crack cocaine would lead to a base offense level of 34.
This would lead to an adjusted offense level of 40, after
adding 6 levels for Spears’ leadership role and the use of a
deadly weapon. Level 40 combined with criminal history
category IV yields a Guidelines range of 30 years to life.
Spears requested that his sentence be reduced from life
imprisonment to 30 years.

    Judge Haggerty denied Spears’ motion for reduction in
September 2013. He concluded that the court lacked
jurisdiction to modify Spears’ sentence under § 3582(c)(2).
Section 3582(c)(2) permits a district court to reduce a
                 UNITED STATES V. SPEARS                     9

sentence “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.”
Sentencing Guidelines section 1B1.10 provides that a
sentence reduction is not authorized under 18 U.S.C.
§ 3582(c)(2) if “an amendment . . . does not have the effect of
lowering the defendant’s applicable guideline range.”

    Judge Haggerty concluded that Amendment 750 did not
“have the effect of lowering” Spears’ applicable Guidelines
range. He wrote that during the sentencing proceedings in
2001, the “court found that 11 kilograms of cocaine is part of
defendant’s relevant conduct, and those 11 kilograms of
cocaine would be used to make crack.” Since the 2012
amended drug quantity table provides for a base offense level
of 38 for conduct involving 8.4 kilograms or more of crack
cocaine, Spears would still be subject to a base offense level
of 38, total offense level of 44, and criminal history category
IV. This yields the same Guidelines “range” of life
imprisonment.

   Spears timely appealed.

              II. STANDARD OF REVIEW

    We review de novo whether a district court has
jurisdiction to modify a sentence under 18 U.S.C.
§ 3582(c)(2). United States v. Leniear, 574 F.3d 668, 672 (9th
Cir. 2009) (citing United States v. Aguirre, 214 F.3d 1122,
1124 (9th Cir. 2000)).

                     III. DISCUSSION

    Spears argues that the district court erred in holding that
it lacked jurisdiction to modify Spears’ sentence under
10                UNITED STATES V. SPEARS

§ 3582(c)(2). He argues that the court’s findings in 2001
regarding drug quantity are limited to its statement at the
sentencing hearing that Spears’ relevant conduct involved “in
excess of one and a half kilograms of crack cocaine.” He
argues that the court’s discussion of the 11-kilogram Cadillac
load in 2001 does not preclude a sentence modification under
§ 3582(c)(2) because the Cadillac contained only powder
cocaine, rather than crack cocaine.

    Next, Spears argues that the district court violated Federal
Rule of Criminal Procedure 32(c) at sentencing in 2001 by
not responding to each of Spears’ objections to the PSR in the
court’s Findings of Fact. He argues that since the court did
not explicitly resolve all of Spears’ objections to the PSR in
2001, the court should not have relied on those findings in
2013.

    Finally, in a Rule 28(j) letter filed with this court shortly
before oral argument, Spears argues that Amendment 782 to
the Sentencing Guidelines requires us to reverse the district
court’s denial of the motion and remand for further
proceedings.

     We address each of these arguments in turn.

A. The district court correctly concluded that it lacked
   jurisdiction to modify Spears’ sentence in 2013.

   “As a general matter, courts may not alter a term of
imprisonment once it has been imposed.” United States v.
Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007). Section
3582(c)(2) creates an exception to this rule by allowing
modification of a term of imprisonment if: (1) the sentence is
“based on a sentencing range that has been subsequently
                 UNITED STATES V. SPEARS                   11

lowered by the Sentencing Commission”; and (2) “such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.”

    The primary “applicable policy statement” is U.S.S.G.
§ 1B1.10. United States v. Pleasant, 704 F.3d 808, 810 (9th
Cir. 2013). The policy statement prohibits a sentence
reduction in cases where the relevant amendment “does not
have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The policy
statement requires district courts to “determine the amended
guideline range that would have been applicable to the
defendant if the amendment(s) to the guidelines . . . had been
in effect at the time the defendant was sentenced.” Id.
§ 1B1.10(b)(1).

    Spears emphasizes that at the sentencing hearing in 2001
the district court stated that the “conspiracy manufactured in
excess of one and a half kilograms of crack cocaine.” As a
preliminary matter, we consider whether this statement
necessarily means that the sentencing court did not make
other findings as to crack cocaine quantity that could later
preclude the applicability of § 3582(c)(2). We hold that it
does not.

    We are persuaded by United States v. Hernandez,
645 F.3d 709 (5th Cir. 2011). In Hernandez, as here, a
sentencing court determined that “the quantity of drugs far
exceeds the 1.5 kilograms needed” to trigger the maximum
offense level threshold. Id. at 710. The sentencing court also
found that “[b]ased on the most conservative estimate, [the
defendant] is responsible for 32.5 kg of [crack] cocaine.” Id.
Years later, the Sentencing Commission retroactively raised
the 1.5 kilogram quantity threshold to 4.5 kilograms. Id. at
12               UNITED STATES V. SPEARS

711. The defendant filed a motion under 18 U.S.C.
§ 3582(c)(2). Id. at 711. He argued that “the clearest finding
as to the quantity of drugs attributed to [him] is ‘1.5
kilograms’ of crack cocaine.” The § 3582 court rejected this
argument and denied the motion based on the sentencing
court’s “conservative estimate” of 32.5 kilograms, a quantity
which still triggered the maximum offense level under the
amended Guidelines. Id. The Fifth Circuit agreed that it was
permissible to deny the motion based on the 32.5 kilogram
figure and affirmed the district court. Id. at 712. See also
United States v. Battle, 706 F.3d 1313, 1319 (10th Cir. 2013)
(“[A] district court’s prior attribution of ‘at least’ 1.5
kilograms of crack (or similar language) to a defendant does
not bind that court to a finding of exactly 1.5 kilograms in a
subsequent § 3582(c)(2) proceeding.”).

    Spears argues in this case that the court’s reference in
2001 to 1.5 kilograms is the only clear finding as to drug
quantity and that the record is “ambiguous at best” as to other
quantity findings. We disagree. As explained below, it is clear
from the sentencing record that the court attributed at least 11
kilograms of crack cocaine to Spears based on the Cadillac
load.

    Spears’ position at the sentencing hearing was that he was
not responsible for any quantity of crack cocaine. He denied
any involvement with cooking powder cocaine into crack
cocaine, and he denied any involvement with the Cadillac
load. Spears’ position was contrary to the PSR. It was also
contrary to Count 1 of the indictment, on which he was
convicted and which charged that he was involved in a
conspiracy to traffic powder cocaine from California to
Oregon for processing into crack cocaine. Spears asked the
court to sentence him based only on a series of transactions
                   UNITED STATES V. SPEARS                          13

in which he sold 5 to 15 kilograms of powder cocaine to two
of his co-conspirators.2 Following this approach would have
required the district court to reject the PSR’s finding that his
offense conduct involved more than 1.5 kilograms of crack
cocaine.

    The court recognized that Spears could not avoid
responsibility for at least 1.5 kilograms of crack cocaine if he
were involved with the Cadillac load. It made the following
statement to Spears’ counsel at the sentencing hearing:

        THE COURT: With respect to the one-and-a-
        half kilos of crack, your argument is based
        solely on the premise that Mr. Spears should
        not be associated with the 11 kilos of cocaine
        seized from the Cadillac, because if he’s
        associated with those 11 kilos, then, in fact,
        he’s associated with that conspiracy. And
        there’s substantial evidence that that
        conspiracy engaged in the manufacturing of
        crack cocaine from powder cocaine, is that
        correct?

Spears’ counsel answered affirmatively. He said, “So, I think
yes. In order to establish that Mr. Spears was involved in 1.5
kilograms of crack cocaine, you have to find, by a
preponderance of the evidence, that he had an interest in that
Cadillac load of cocaine.” This exchange would be
nonsensical if the conspiracy did not involve cooking the 11
kilograms of powder cocaine into crack cocaine.


  2
   Powder cocaine is treated differently – and less harshly – under the
Sentencing Guidelines. See Dillon v. United States, 560 U.S. 817, 821
(2010).
14               UNITED STATES V. SPEARS

    In the Findings of Fact order, the court revisited Spears’
objection to the PSR’s conclusion that he was responsible for
more than 1.5 kilograms of crack cocaine. In a one-sentence
response to this objection, the order stated “[t]he court finds
that the trial evidence showed that the defendant had an
interest in the 11 kilos of cocaine that was charged in Count
1.” Spears now emphasizes the fact that the order did not state
that the 11 kilograms would be cooked into crack cocaine.
However, here too it would be nonsensical to conclude that
the sentencing court found otherwise. If the 11 kilograms
were not to be cooked into crack, then Spears’ responsibility
for the powder cocaine in the Cadillac would not have
provided any basis for rejecting Spears’ challenge to the
PSR’s 1.5 kilogram crack cocaine finding. Furthermore, it is
inexplicable why the court would have made any finding
involving powder cocaine if the cocaine was not to be cooked
into crack. After all, Spears was sentenced based on the drug
quantity thresholds for crack cocaine only, not powder
cocaine. Powder cocaine would be irrelevant to the court’s
calculation of Spears’ offense level unless it was going to be
cooked into crack cocaine. We decline to reinterpret the
Findings of Fact order in a way that would make its findings
irrelevant to Spears’ sentencing.

    Notwithstanding the foregoing, Spears argues that two
opinions from our sister circuits require us to reverse the
court’s denial and remand for further proceedings. We are not
persuaded.

    First Spears points to United States v. Hamilton, 715 F.3d
328 (11th Cir. 2013). In Hamilton, a defendant twice moved
for a sentence modification based on the lowered offense
levels for crack cocaine offenses. The district court denied
both motions. Id. at 336. In denying them, the district court
                 UNITED STATES V. SPEARS                    15

relied on responsive memoranda filed by the Probation Office
and by the government. Id. at 335–36. These memoranda
contained factual inaccuracies about the defendant’s original
sentencing. They stated that the initial PSR found that the
defendant was responsible for at least 12 kilograms of crack
cocaine. Id. at 336. The memoranda failed to account for an
addendum to the original PSR, which made it less clear
whether the defendant was responsible for 12 kilograms. Id.
at 335. Since the memoranda were factually inaccurate, and
the district court relied on those memoranda in denying the
motions, the Eleventh Circuit remanded with instructions to
“determine what drug quantity findings [the sentencing court]
made, either explicitly or implicitly, at Hamilton’s original
sentencing hearing.” Id. at 340. Hamilton is inapposite to this
appeal because the district court here did not rely on factual
inaccuracies when it denied Spears’ motion.

    Spears also points to United States v. Hall, 582 F.3d 816
(7th Cir. 2009). In Hall, a defendant pleaded guilty to a
conspiracy to possess with intent to distribute over 50 grams
of crack cocaine and more than 5 kilograms of a mixture
containing cocaine. Id. at 817. He acknowledged in a plea
agreement that the conspiracy involved more than 1.5
kilograms of crack cocaine. After amendments to the
Guidelines, the defendant sought a sentence modification
under 18 U.S.C. § 3582(c)(2). Id. at 818. The district court
denied the motion because, after reviewing the admissions in
the plea agreement, it concluded that the defendant was
responsible for crack cocaine totaling “23 to 43 kilograms,”
which meant that he would not receive a lower sentencing
range under the amended Guidelines. Id. The Seventh Circuit
remanded because the admission the district court relied on
stated that “defendant sold 1 to 2 kilograms of powder and
crack cocaine every month” for a two-year period. Id.
16               UNITED STATES V. SPEARS

(emphasis added). Thus, the key admission in the defendant’s
plea agreement was imprecise as to the amount of crack
cocaine involved in the conspiracy. “[T]he district court
ignored an ambiguity in the facts and misapprehended the
content of Hall's plea admissions.” Id.

    Hall, like Hamilton, is inapposite here. The district court
in this case did not misapprehend the record when it denied
Spears’ motion. It was correct in finding that the sentencing
court attributed the Cadillac load to Spears.

     In sum, the sentencing record makes it clear that the court
attributed to Spears 11 kilograms of powder cocaine that were
to be cooked into crack cocaine. The sentencing court also
adopted the PSR’s uncontroverted assertion that one kilogram
of powder cocaine yielded a slightly greater quantity of crack
cocaine. This combination of facts supports the conclusion
that Spears had an interest in crack cocaine weighing at least
11 kilograms.

    The dissent disputes this conclusion on the ground that
the PSR stated at one point that the conspiracy converted
“most” of its powder cocaine into crack cocaine. (Dissenting
Op. 23–24.) This statement, according to the dissent,
undermines the conclusion that all 11 kilograms of powder
cocaine in the Cadillac were in fact cooked into crack, with
the result that there exists no assurance that Spears was
responsible for such an amount of crack cocaine. See id.

    But the statement to which the dissent refers was a
statement about the conspiracy in general. As described by
the PSR, the entire conspiracy involved years of cocaine
trafficking orchestrated by dozens of co-conspirators. The
conspiracy, as a whole, “converted most of its powder
                 UNITED STATES V. SPEARS                     17

cocaine into ‘crack.’” This statement from the PSR does not
address the specific, 11-kilogram load of powder cocaine in
the Cadillac.

    And with respect to that particular load, Spears’ attorney
conceded after trial that if the court found “that Mr. Spears
had an interest in the cocaine that was in the Cadillac, then it
would be—certainly, [the court] could conclude that that
cocaine was then being delivered to one of the houses . . .
where it was cooked into crack cocaine.” The evidence before
the sentencing court accordingly established that all 11
kilograms of powder cocaine in the Cadillac were in fact
“cooked into crack,” without any qualification about “most”
of the amount being converted.

    As a result, the district court was correct to find that
Spears was responsible for more than 8.4 kilograms of crack
cocaine. Spears’ applicable Guidelines range under the drug
quantity table, as modified by Amendment 750, would
therefore be the same as the Guidelines range before the
amendment. This means that Amendment 750 did not “have
the effect of lowering the defendant’s applicable guideline
range.” U.S.S.G. § 1B1.10(a)(2)(B). Modifying Spears’
sentence under these circumstances would not be “consistent
with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). It follows that the
district court did not have jurisdiction under § 3582(c)(2) to
modify Spears’ sentence.

B. The district court did not err when it relied on factual
   findings from the 2001 sentencing hearing.

   Spears argues that the court violated Federal Rule of
Criminal Procedure 32(c) at sentencing in 2001 by not
18                   UNITED STATES V. SPEARS

responding to each of Spears’ objections to the PSR in the
court’s Statement of Reasons.

    At the time of Spears’ sentencing, Rule 32(c) provided
that a sentencing court “must rule on any unresolved
objections to the presentence report,” and “must make either
a finding on the allegation or a determination that no finding
is necessary” for “each matter controverted.” See United
States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000)).3 Spears
cites authority for the proposition that Rule 32(c) requires
“strict compliance” from sentencing courts. United States v.
Doe, 705 F.3d 1134, 1153 (9th Cir. 2013) (referencing Rule
32(i)(3)(B)). He argues that because “[t]he court’s findings at
the original sentencing were insufficient to comport with Rule
32, . . . any reliance on them here is misplaced.” He relies on
the sentencing court’s Statement of Reasons, which did not
explicitly state that the 11 kilograms in the Cadillac would be
cooked into crack cocaine.

    Spears’ argument is essentially that the 2001 court did not
adequately address Spears’ specific PSR objections point-by-
point at the hearing or in the Statement of Reasons. This
argument fails because a motion to modify a sentence under
18 U.S.C. § 3582(c)(2) is an improper vehicle to attack a
sentence for non-compliance with the Rules of Criminal
Procedure. “Section 3582(c)(2)’s text, together with its

 3
   Rule 32(c) has been amended. In its current form, Rule 32(c) does not
support Spears’ argument. However, current Rule 32(i)(3)(B) is closely
analogous to the old Rule 32(c). It provides that “[a]t sentencing, the court
must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing . . . .” FED. R.
CRIM. P. 32(i)(3)(B) (2014).
                 UNITED STATES V. SPEARS                   19

narrow scope, shows that Congress intended to authorize only
a limited adjustment to an otherwise final sentence and not a
plenary resentencing proceeding.” Dillon v. United States,
560 U.S. 817, 826 (2010); see also United States v. Waters,
648 F.3d 1114, 1118 (9th Cir. 2011) (“[A] court’s authority
in a sentence-reduction proceeding is strictly limited to
shortening the length of a prison term and does not extend to
collateral matters unrelated to the Guidelines change.”)
(quoting United States v. Dunn, 631 F.3d 1291, 1293 (D.C.
Cir. 2011)). Spears cites no authority for his contrary
assertion that the 2013 court should have ignored factual
findings in the 2001 sentencing proceeding because of a
possible Rule 32 violation. Accordingly, it was proper for the
district court to rely on those findings.

C. Amendment 782 does not provide a basis for reversing
   the court’s denial of Spears’ motion.

     Shortly before oral argument in this case, Spears filed a
Rule 28(j) letter with this court asking us to reverse and
remand the court’s denial in light of Amendment 782 to the
Sentencing Guidelines. Amendment 782 further raised the
crack cocaine quantity thresholds in the drug quantity table.
Compare U.S.S.G. § 2D1.1(c) (2012), with U.S.S.G.
§ 2D1.1(c) (2014). We decline to reverse the district court on
this basis because Amendment 782 went into effect in
November 2014 – after the district court denied Spears’
motion in 2013 based on the pre-Amendment 782 drug
quantity table. If Spears wishes to seek a sentence
modification based on Amendment 782, he may do so by
filing such a motion in district court. See United States v.
Taylor, 778 F.3d 667, 672 (7th Cir. 2015) (“But for Taylor to
benefit from this amendment, he would need to file a new
motion under § 3582(c)(2) in the district court based on
20               UNITED STATES V. SPEARS

Amendment 782.”). We express no view as to whether Spears
may be eligible for a sentence modification based on
Amendment 782.

                    IV. CONCLUSION

     The district court lacked jurisdiction to modify Spears’
sentence under § 3582(c)(2) because the sentencing court
attributed to him at least 11 kilograms of crack cocaine.
Accordingly, Amendment 750 did not have the effect of
lowering Spears’ Guidelines range. We reject Spears’ other
arguments.

     AFFIRMED.



TASHIMA, Circuit Judge, dissenting:

    Under 18 U.S.C. § 3582(c)(2), a district court has
jurisdiction to reduce a defendant’s sentence if the defendant
was “sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The
majority, however, goes beyond the statutory language to
find, based on its examination of the record of Spears’ prior
sentencing proceeding, that Spears is ineligible for (i.e., that
the district court lacks jurisdiction to consider) a sentence
reduction. The majority conflates the jurisdictional analysis
with an analysis of the merits of Spears’ motion. Because
this is the wrong analysis, I respectfully dissent.

   In 2001, the sentencing court found that Spears had
committed an offense involving at least 1.5 kilograms of
                 UNITED STATES V. SPEARS                     21

crack cocaine. At that time, this quantity corresponded to a
base offense level of 38 in the Drug Quantity Table of the
Sentencing Guidelines. U.S.S.G. § 2D1.1(c) (2000). The
court found that Spears’ base offense level should be
enhanced by 6 points, resulting in a total offense level of 44
and a corresponding sentencing range of life imprisonment.

    Amendment 750 to the Sentencing Guidelines revised the
Drug Quantity Table, reducing offenses involving at least 1.5
kilograms of crack cocaine to correspond to a base offense
level of 34. U.S.S.G. § 2D1.1(c) (2012). This change would
decrease Spears’ total offense level to 40, and his sentencing
range to 360 months’ to life imprisonment. Under the revised
Guidelines, a base offense level of 38 requires a finding that
the offense involved at least 8.4 kilograms of crack cocaine.
Thus, under 18 U.S.C. § 3582(c)(2), Spears was sentenced
based on a sentencing range that was subsequently lowered
by the Sentencing Commission.                Therefore, under
§ 3582(a)(2), the district court had jurisdiction to consider on
the merits Spears’ motion to modify his term of
imprisonment.

    The majority does not make this straightforward statutory
analysis. Instead, it considers whether the record from the
2001 sentencing could support a finding that Spears was
responsible for at least 8.4 kilograms of crack cocaine. But
the statute does not call for such an inquiry into the prior
sentencing record to establish a sentencing judge’s
jurisdiction to reconsider a defendant’s sentence.

    The case law on which the majority relies does not
support its approach. In United States v. Hernandez,
645 F.3d 709 (5th Cir. 2011), the district court denied the
defendant’s § 3582(c)(2) motion based on the sentencing
22                    UNITED STATES V. SPEARS

court’s previous finding that the defendant was responsible
for 32.5 kilograms of crack cocaine, which was “far beyond
the 4.5 kg threshold needed for the highest offense level”
under the Sentencing Guidelines. Id. at 712. But the district
court did not decide that the factual findings in the sentencing
record deprived it of jurisdiction to consider the defendant’s
motion on the merits. Rather, the district court exercised its
discretion to decline to modify the defendant’s sentence.1 See
id. (“[W]e hold that the district court did not abuse its
discretion in refusing to modify Hernandez’s sentence or in
refusing to grant an evidentiary hearing to decide the amount
of crack for which Hernandez was responsible.” (emphasis
added)).2

    Likewise, in United States v. Battle, 706 F.3d 1313 (10th
Cir. 2013), the second case the majority cites in support of its
position, the Tenth Circuit reviewed a district court’s decision
to grant in part and deny in part a defendant’s § 3582(c)(2)
motion on its merits. See id. at 1314. Thus, this case also


   1
     The procedural history of Hernandez’s appeal illustrates that the
district court denied his § 3582(c)(2) motion on the merits, and not based
on a lack of jurisdiction. After the district court denied Hernandez’s
§ 3582(c)(2) motion, Hernandez appealed the denial of his motion to the
Fifth Circuit and simultaneously filed a motion for reconsideration in the
district court. Id. at 711. The district court determined that it lacked
jurisdiction to consider Hernandez’s motion for reconsideration “because
Hernandez moved for reconsideration after taking appeal to [the Fifth
Circuit], and thus potentially deprived the district court of its jurisdiction.”
Id. at 711 n.1. The Fifth Circuit declined to review this jurisdictional
ruling because the merits of Hernandez’s motion were “properly before
[the court] on the defendant’s timely appeal” from the denial of his
§ 3582(c)(2) motion. Id.
  2
    Review of a sentencing decision for “abuse of discretion” is, of course,
review of the merits; not a review of jurisdiction.
                   UNITED STATES V. SPEARS                           23

does not support the proposition that a district court must
review the sentencing record to determine whether it has
jurisdiction to consider a defendant’s § 3582(c)(2) motion.

    Furthermore, even assuming the correctness of the
majority’s approach – that a district court must review a
sentencing court’s factual findings to determine whether it
has jurisdiction to consider a defendant’s § 3582(c)(2) motion
– the sentencing court did not make any specific finding that
Spears’ offense conduct involved at least 8.4 kilograms of
crack cocaine, the minimum quantity required for application
of the newly-amended base offense level of 38.

    The sentencing court did find that Spears had an interest
in 11 kilograms of powder cocaine involved in the
conspiracy. The court also acknowledged that the conspiracy
involved cooking powder cocaine into crack cocaine. See
Maj. Op. 13. Based on these facts, the court found that
Spears was responsible for some amount of crack cocaine in
excess of 1.5 kilograms. But the sentencing court did not
find, contrary to what the majority implies, that all of the 11
kilograms of powder cocaine with which Spears was
associated were cooked into crack cocaine. In fact, the
Presentence Report3 stated that the conspiracy with which
Spears was involved converted most of its powder cocaine
into crack cocaine.4 But what is “most” of 11 kilograms?

  3
    As the majority notes, the sentencing court adopted the Presentence
Report “as its own findings,” excluding the paragraphs upon which no
finding was necessary. Maj. Op. 7.
  4
   The majority quibbles that this statement “was a statement about the
conspiracy in general.” Maj. Op. at 16. But the Cadillac-load of cocaine
to which this statement refers is the very same cocaine which is at the
heart of the drug quantity issue. Moreover, this statement is never
24                   UNITED STATES V. SPEARS

The sentencing court did not answer that question, because it
was unnecessary to the sentence the court imposed.5 The
only necessary quantity finding, given the structure of the
Guidelines at the time, was the court’s finding that at least 1.5
kilograms of crack cocaine were involved. Thus, the
sentencing court’s factual findings did not definitively link
Spears with 8.4 kilograms of cocaine base.

    In sum, under a straightforward statutory analysis, the
district court had jurisdiction under 18 U.S.C. § 3582(c)(2) to
modify Spears’ sentence.6 Consequently, I would reverse and
remand for the district court to exercise its discretion as to
whether Spears’ sentence should be reduced. I, therefore,
respectfully dissent.




contradicted or cast in doubt later in the Presentence Report. To reiterate,
the only quantity finding made by the Presentence Report, which was
adopted by the sentencing judge, see footnote 3, supra, is that: “In this
case Spears’ relevant conduct includes more than 1.5 kilograms of cocaine
base, resulting in a base offense level of 38.” PSR, ¶ 84.
   5
     Neither did Spears’ counsel. Although he acknowledged, as the
majority points out, Maj. Op. at 17, that the Cadillac-load of cocaine “was
cooked into crack cocaine,” he does not address how much of it was
cooked into crack; thus, his argument at sentencing does not contradict the
Presentence Report that “most of [the] powder cocaine was [converted]
into ‘crack’.”
   6
     Whether the sentencing court should exercise its discretion under
§ 3582(c)(2) to reduce Spears’ sentence is an entirely different question.
