                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   April 8, 2009
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,
              Plaintiff-Appellee,                        No. 08-1253
 v.                                           (D.C. No. 05-CR-00374-EWN-22)
 VICTOR VALDEZ, a/k/a Vic,                                 (D. Colo.)
              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and HARTZ, Circuit Judges.


      In this case, we review the district court’s finding that the defendant, Victor

Valdez, was ineligible to receive a reduced sentence under 18 U.S.C. §

3582(c)(2). For the reasons that follow, we affirm.

                                    B ACKGROUND

      In 2005, a grand jury indicted Defendant and twenty-two others on multiple

counts related to a conspiracy to distribute powder and crack cocaine. Defendant

was charged with twenty-one counts but ultimately pled guilty to a single

conspiracy count in exchange for the dismissal of all other charges.



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      During the plea process, Defendant signed a Plea Agreement and Statement

of Facts Relevant to Sentencing. In addition to outlining the factual basis for the

plea, the agreement noted, “Defendant stipulates pursuant to USSG §

1B1.3(a)(1)(B) that the total foreseeable drug quantity for which he is

accountable is 1.5 kilograms or more of cocaine base.” (R. Vol. 1, Doc. 645 at

16.) At sentencing, the court determined this drug quantity put Defendant’s base

offense level at thirty-eight and concluded Defendant’s criminal history category

was II. After considering a motion by the government under U.S.S.G. § 5K1.1,

the court sentenced Defendant to 202 months’ imprisonment.

      In March 2008, Defendant moved to reduce his sentence under 18 U.S.C. §

3582(c)(2), pursuant to Amendment 706 of the sentencing guidelines. After

appointment of counsel, Defendant’s attorney filed an amended motion. The

government responded, contending Defendant was ineligible for a reduction

because, even under the modified guidelines, his offense level remained at thirty-

eight. Specifically, the government argued that Defendant stipulated to conduct

involving more than 4.5 kg of cocaine base, Amendment 706’s threshold quantity.

Because this quantity left Defendant’s offense level unchanged, the court was not

authorized to reduce his sentence under § 3582(c)(2). Defendant countered that

he had accepted responsibility for only 1.5 kg or more of crack and that the court

had made no specific drug quantity finding. Instead, the court made only an

implicit quantity finding of 1.5 kg or more based on the stipulation in the plea

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agreement and the facts in the presentence report.

      After a motion hearing on June 27, 2008, the court determined that, when

considered as a whole, the factual basis in the plea agreement and the unobjected-

to presentence report established that Defendant was responsible for more than

4.5 kg of crack, so his offense level remained at thirty-eight. Consequently, the

court denied Defendant’s motion for a sentence reduction:

      At the sentencing hearing, the Court . . . adopted, as I said, the
      recitations in the presentence report. The defendant stipulated to all
      of these. There was no objection to any of this by the defendant.
      And what I just read from [the plea agreement] indicated that he
      stipulated to relevant conduct of 1.5 kilos or more. When you
      consider the plea agreement as a whole, to which there was no
      objection and indeed to which there was a stipulation, there is an
      astronomical amount of cocaine involved here, significantly in excess
      of 4.5 kilos.

(R. Vol. III at 8–9.)

                                     A NALYSIS

      We review the scope of a district court’s authority in a resentencing

proceeding under § 3582(c)(2) de novo. United States v. Rhodes, 549 F.3d 833,

837 (10th Cir. 2008); United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.

2008). However, we review a district court’s decision to deny a reduction in

sentence under § 3582(c)(2) for abuse of discretion. Sharkey, 543 F.3d at 1238.

“When a motion for [a] sentence reduction is not a direct appeal or a collateral

attack under 28 U.S.C. § 2255, the viability of [the] motion depends entirely on

18 U.S.C. § 3582(c).” Id. (alterations in original) (internal quotation marks

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omitted).

      Amendment 706 authorized a reduction in certain sentences pursuant to §

3582(c)(2). “The Guidelines, through Amendment 706, generally adjust

downward by two levels the base offense level assigned to quantities of crack

cocaine.” Id. at 1237. However, a sentence reduction is only authorized under §

3582(c)(2) if the Amendment has “the effect of lowering the defendant’s

applicable guideline range.” Id. at 1239 (internal quotation marks omitted).

Before his § 3582(c)(2) motion, Defendant’s base offense level was thirty-

eight—predicated upon the district court’s acceptance of Defendant’s plea to a

drug quantity of 1.5 kg or more of crack cocaine. Now, post-Amendment 706, a

defendant must be responsible for 4.5 kg or more of crack cocaine to have a base

offense level of thirty-eight. See U.S.S.G. § 2D1.1(c)(1) (2007).

      On appeal, Defendant argues the district court clearly erred by holding him

responsible for 4.5 kg or more of crack where the court originally made no

specific findings regarding drug quantity at sentencing. Instead, the court simply

accepted Defendant’s plea stipulation to a drug quantity of 1.5 kg or more of

crack. The drug quantity was pegged at 1.5 kg because that was the threshold

quantity in the sentencing guidelines at the time. Therefore, the court had no

need to make a separate, explicit quantity calculation. However, at the time of

the § 3582 hearing, the court did need to make a quantity calculation. To do so, it

correctly relied upon its factual findings at sentencing. At sentencing, Defendant

                                        -4-
filed no objections to the facts in the presentence report, which were taken

verbatim from the plea agreement. Consequently, the court adopted the factual

statements in the presentence report as its own findings. It was proper for the

court to rely at the § 3582 hearing on these findings it adopted at sentencing to

calculate a drug quantity.

      Defendant also contends that the court’s adoption of the factual basis in the

presentence report is insufficient to support a finding that he was responsible for

4.5 kg of crack because ambiguity in the facts leaves the amount of crack open to

doubt. For instance, Defendant maintains that because it is impossible to

determine the exact form of the drugs in some of the transactions listed, the court

could not unambiguously determine the amount of crack attributable to him. He

also contends that even reading the facts liberally, only 2.7 to 3 kg of crack are

attributable to him—which would result in a base offense level of thirty-six.

However, we conclude the facts adopted by the court are sufficient to support a

finding that Defendant was responsible for 4.5 kg or more of crack. One para-

graph alone explains that during a two-month period, Defendant purchased at

least 10 kg of cocaine from one source and, with the assistance of others, con-

verted about half of it into crack for distribution. Without more, this establishes

Defendant’s responsibility for 4.5 kg or more of crack. But the report also details

many additional transactions by Defendant that clearly involved crack cocaine,

including a series of controlled purchases involving a total of nearly 0.5 kg.

                                         -5-
      In conclusion, because the court adopted as its factual findings at

sentencing the statements in the presentence report showing Defendant was

responsible for more than 4.5 kg of crack, the court correctly relied upon the

higher quantity at the § 3582 hearing. Because this higher quantity meets

Amendment 706’s modified drug quantity threshold, the modification does not

alter Defendant’s base offense level of thirty-eight or lower his applicable

guideline range. Consequently, Defendant was not entitled to a reduced sentence

under § 3582(c)(2). See Sharkey, 543 F.3d at 1239.

      For the foregoing reasons, we AFFIRM the district court’s denial of

Defendant’s § 3582(c)(2) motion.

                                               Entered for the Court




                                               Monroe G. McKay
                                               Circuit Judge




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