                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0127n.06

                                            No. 12-1629

                          UNITED STATES COURT OF APPEALS
                                                                                        FILED
                                                                                     Feb 04, 2013
                               FOR THE SIXTH CIRCUIT
                                                                              DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF MICHIGAN
ANTHONY TAYLOR                                            )
                                                          )
       Defendant-Appellant.                               )
                                                          )


BEFORE:        DAUGHTREY, ROGERS, and McKEAGUE, Circuit Judges.

       PER CURIAM. Anthony Taylor appeals the denial of his motion to reduce his sentence

pursuant to retroactive amendments to the crack cocaine sentencing guidelines. He argues that

because the district court at sentencing resolved a contested drug quantity issue by finding that the

defendant was responsible for a range of quantity, the court may not—as it did in this case—later

determine more precisely the quantity of drugs based on the trial court record. Affirmance is

required, however, because Taylor’s argument is foreclosed by our recent published holding in

United States v. Valentine, 694 F.3d 665 (6th Cir. 2012).

       Taylor was convicted on October 16, 1998, of two counts of distributing crack cocaine and

one count of conspiring to distribute crack cocaine. On May 3, 1999, he was sentenced to 292

months’ imprisonment based on the district court’s finding that his offenses involved more than 500

grams of crack cocaine. On July 7, 2009, following the first of two retroactive reductions in crack
No. 12-1629
United States v. Taylor


cocaine sentencing guidelines, Taylor petitioned the court for a reduction in his sentence. Because

the relevant offense level for the drug range of 500 grams to 1.5 kilograms of crack cocaine was

reduced to 34 from a prior level of 36, the district court reduced his sentence to 235 months. R.230,

PageID # 325–26; R.231, PageID 327.

        This appeal arises from the denial of a motion to modify under the second set of retroactive

amendments, the Fair Sentencing Act of 2010 (FSA). The FSA altered the guideline ranges,

resulting in the elimination of the 500 gram-to-1.5 kilogram range. The ranges that now apply to this

quantity of drugs are 280 to 840 grams and 840 grams to 2.8 kilograms. The new offense levels are

32 and 34, respectively. In considering Taylor’s motion, the district court had to determine which

of the two new ranges applied to Taylor’s offense; application of the lower range would result in a

two-level reduction in Taylor’s offense level, while application of the higher range would have no

effect on his sentence. The district court heard argument on the motion, reviewed the trial

transcripts, and denied the motion, finding that Taylor was responsible for “well over 840 grams”

of crack cocaine, meaning his offense level remained at 34. R.245, at 4–5, PageID # 1516–17. On

appeal, Taylor contends that the district court was without authority to make a supplemental finding

as to the quantity of drugs involved in his offenses.

        In cases where a district court finds a defendant ineligible for a sentence reduction pursuant

to 18 U.S.C. § 3582(c), we review de novo. Valentine, 694 F.3d at 669. The district court’s factual

findings are reviewed for clear error. Id. This court resolved the question of a district court’s ability

to make a supplemental determination of drug quantity in requests for sentencing reductions in


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No. 12-1629
United States v. Taylor


United States v. Valentine. Id. at 670. We held that where a trial court makes a finding only as to

a range in quantity, “the modification court must make supplemental findings based on the available

record to determine if applying the retroactive amendment lowers the Guideline range.” Id. The

determination of quantity may be made by considering only the record available to the original

sentencing court, and the district court must make its finding by a preponderance of the evidence.

Id.

       In this case, the district court was required to make a supplemental determination of quantity

because the original sentencing court made a finding only that the amount was more than 500 grams.

R.245, PageID #1513. The court made its determination based on sources available to the original

sentencing court: the trial transcripts and the pre-sentencing report. Id. These sources included

testimony from two witnesses that, from the summer of 1995 to the summer of 1996, Taylor

distributed 3 to 28 grams of crack cocaine daily to each witness for resale. PSR Para. 21. One

witness also testified that he had seem him on one occasion with 500 grams of crack. R.238, Exh.

A, at 25, 31, PageID #1473, 1479. A preponderance of the evidence supports the court’s finding that

Taylor is responsible for more the 840 grams of crack cocaine. His offense level therefore remains

at 34, and because the FSA “does not have the effect of lowering the defendant’s applicable

guideline range,” U.S.S.G. § 1B1.10(a)(2), the district court appropriately dismissed Taylor’s motion

for a reduction in sentence.

       The judgment of the district court is affirmed.




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