                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2169
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Ramon P. Ponce

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: April 9, 2018
                               Filed: June 4, 2018
                                 [Unpublished]
                                 ____________

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
                             ____________

PER CURIAM.

      Ramon P. Ponce appeals the district court’s1 denial of his sentence reduction
under 18 U.S.C. § 3582(c)(2). We affirm.


      1
       The Honoroable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
      In 2001, Ponce pleaded guilty to conspiring to distribute 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. As part
of the plea agreement, Ponce agreed that United States Sentencing Guidelines
(U.S.S.G. or Guidelines) § 2D1.1 applied, that he was responsible for more than 15
kilograms of methamphetamine, and that his base offense level was 38.

      Prior to sentencing, the probation office determined that the conspiracy was
responsible for more than 1,000 pounds (or 453.592 kilograms) of methamphetamine.
Ponce objected to this drug quantity, but he later withdrew his objection after the
government stated that if he continued making objections, it would void the plea
agreement and prove the drug quantity at trial. Ponce decided to move forward with
the plea agreement, making it unnecessary for the government to prove the drug
quantity.

        The district court determined that Ponce’s base offense level was 38 and
granted Ponce a 2-level reduction for acceptance of responsibility. It found that
Ponce’s advisory Guidelines range was 235 to 293 months’ imprisonment, based on
a total offense level of 36 and a criminal history category of III, and sentenced Ponce
to 235 months’ imprisonment.

       Ponce thereafter filed a direct appeal, arguing that the district court erred in
denying him a minor role reduction under U.S.S.G. § 3B1.2(b). United States v.
Ponce, 311 F.3d 911 (8th Cir. 2002). We affirmed, noting that the evidence showed
that Ponce had supplied at least 27 kilograms of methamphetamine to drug
distributors, that one witness saw Ponce transporting approximately 44 kilograms of
methamphetamine, and that Ponce instructed other members of the conspiracy to
accept drugs from a source in Texas and return them to Kansas City, Missouri. Id.
at 913-14.




                                         -2-
      In 2014, Ponce moved to reduce his sentence based on Amendment 782 of the
Guidelines, which retroactively reduced base offense levels for various drug
quantities by 2 levels. Under Amendment 782, the amount of methamphetamine
required to establish a base offense level of 38 increased from more than 15
kilograms of methamphetamine to more than 45 kilograms of methamphetamine.

      The district court denied the motion, finding that Ponce did not qualify for a
§ 3582(c)(2) reduction because the conspiracy in which he was involved was
accountable for more than 1,000 pounds or methamphetamine, which meant that
Ponce’s base offense level remained at 38. Ponce filed a motion to reconsider,
arguing that neither the district court nor this court had ever found Ponce to be
responsible for that quantity of drugs. The court denied Ponce’s motion to
reconsider. This appeal followed.

       We review de novo a defendant’s eligibility for sentence reduction under
§ 3582(c)(2). United States v. Koons, 850 F.3d 973, 976 (8th Cir. 2017) (standard
of review).

       A district court may reduce a defendant’s sentence under § 3582(c)(2) if the
Sentencing Commission subsequently reduces the defendant’s Guidelines range and
the court determines that a reduction would be “consistent with applicable policy
statements issued by the Sentencing Commission.” Accordingly, the district court
must engage in a two part analysis. First, it must determine whether the amended
Guidelines range “‘would have been applicable to the defendant’ had the relevant
amendment been in effect at the time of the initial sentencing.” Dillon v. United
States, 560 U.S. 817, 827 (2010) (quoting U.S.S.G. § 1B1.10(b)(1)). Second, it must
“consider any applicable § 3553(a) factors and determine whether, in its discretion,
the reduction authorized by reference to the policies relevant at step one is warranted
in whole or in part under the particular circumstances of the case.” Id.



                                         -3-
       Ponce argues that the district court erred in finding that he was ineligible for
a sentence reduction because it was never proved that he was responsible for more
than 45 kilograms of methamphetamine. We disagree. Ponce did not object to
factual allegations in the PSR, which stated that Ponce delivered 60 pounds (30
kilograms) of methamphetamine between August 1999 and September 1999 and then
another 97 pounds (44 kilograms) of methamphetamine between December 1999 and
February 2000. See United States v. Freeman, 718 F.3d 1002, 1005 (8th Cir. 2013)
(“This court has repeatedly held that unless a defendant objects to a specific factual
allegation contained in the PSR, the court may accept that fact as true for sentencing
purposes” (quoting United States v. Oaks, 606 F.3d 530, 541 (8th Cir. 2010))). He
also, in effect, withdrew his objection to the PSR’s finding that he was responsible
for more than 1,000 pounds of methamphetamine when he decided to proceed under
the plea agreement. See United States v. Bowers, 743 F.3d 1182, 1184 (8th Cir.
2014) (“[I]f a defendant makes written objections to the factual allegations in a PSR,
but tells the court during the sentencing hearing that the facts in the PSR are accurate,
then the written objections are withdrawn, and the defendant waives any objection to
the facts set forth in the PSR.” (internal citation and quotation omitted)). Having
properly relied on the uncontested facts attributing more than 45 kilograms of
methamphetamine to Ponce, the district court correctly determined that Ponce was
ineligible for a sentence reduction because Amendment 782 does not affect his base
offense level of 38.2

      The judgment is affirmed.

                        ______________________________




      2
        Because the amended Guidelines range would have been applicable to Ponce
at the time of his initial sentence, we need not address the § 3553(a) factors.

                                          -4-
