     Case: 09-31221     Document: 00511625377         Page: 1     Date Filed: 10/06/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          October 6, 2011

                                       No. 09-31221                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

RICHARD RANDALE JACKSON,

                                                   Defendant - Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:04-CR-50134-3


Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Richard Randale Jackson appeals from the denial of his motion for
sentence modification pursuant to amendments to the Sentencing Guidelines.
At issue is the drug-quantity finding at his sentencing in 2005. AFFIRMED.
                                              I.
        In 2005, Jackson was convicted of multiple counts of possession, with
intent to distribute, crack cocaine and one count of conspiracy to distribute crack


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                    No. 09-31221

cocaine. The pre-sentence investigation report (PSR) stated Jackson was
responsible for “at least 40 kilograms of crack cocaine”. For the advisory
Guidelines, the PSR stated Jackson was subject to the highest base offense level
(38), which was triggered by any amount over 1.5 kilograms of crack cocaine in
the Drug Quantity Table. Jackson objected to that “at least 40 kilograms”
quantity, contending the Government had not sufficiently proved he was
responsible for more than 1.5 kilograms of crack cocaine.
      At sentencing, after considering argument and evidence, the district court:
stated “the 1.5 kilogram involvement is appropriate under the preponderance of
the evidence and should be used”; adopted the proposed findings in the PSR; set
Jackson’s base offense level at 38; and sentenced him to 360 months’
imprisonment, which was within the advisory Guidelines sentencing range. Our
court affirmed Jackson’s conviction and sentence. United States v. German, 486
F.3d 849, 854-55 (5th Cir. 2007).
      In 2008, Jackson, pro se, filed an 18 U.S.C. § 3582(c)(2) motion, asserting
amendments to the Guidelines had reduced the base offense level for his offense
by two levels. The amended Guidelines now require 8.4 kilograms to trigger the
maximum base offense level. U.S.S.G. § 2D1.1(c)(2). Jackson contended: his
offense level should be reduced because, at sentencing, he was found responsible
for only 1.5 kilograms of crack cocaine.
      The district judge, who had also presided at sentencing, denied the motion,
citing the PSR and concluding Jackson’s sentence was unaffected by the
amendments because, at sentencing, he had been found responsible for 40
kilograms of crack cocaine.
                                        II.
      For this appeal, our court granted Jackson’s motion to proceed in forma
pauperis and appointed counsel for him.



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                                  No. 09-31221

      Under § 3582(c)(2), a two-step process governs whether a sentence is
reduced. Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). First, the district
court must determine if defendant is eligible for a reduction under the amended
Guidelines. Id. If he is not, the district court does not have authority to reduce
the sentence. U.S.S.G. § 1B1.10(a)(2)(B). If, on the other hand, defendant is
eligible for the reduction, the district court has discretion regarding whether a
reduction is appropriate under the 18 U.S.C. § 3553(a) sentencing factors. Dillon,
130 S. Ct. at 2692; United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994). In
exercising that limited discretion, the court “shall leave all other guideline
application decisions unaffected”. U.S.S.G. § 1B1.10(b)(1). The district court did
not reach the second step because, as discussed, it determined: Jackson, at
sentencing, had been found responsible for 40 kilograms of crack cocaine; and,
therefore, he was not eligible for the reduction.
      Jackson does not contend the district court misapplied the Guidelines.
Instead, he contends: the district court improperly re-litigated the drug-quantity
determination because at sentencing it found him responsible for only 1.5
kilograms; and it is inappropriate for a district court to re-determine an earlier
drug-quantity finding when considering a §3582(c)(2) motion. See United States
v. Perkins, 364 F. App’x 133 (5th Cir. 2010). In other words, if the district court,
at sentencing, found Jackson responsible for only 1.5 kilograms of crack cocaine,
that would control and Jackson would be eligible for the reduction.
      The district court’s decision whether to reduce a sentence under
§ 3582(c)(2) is reviewed for abuse of discretion, with the court’s underlying
interpretations of the Guidelines reviewed de novo and its findings of fact
reviewed for clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir.
2009), cert. denied, 130 S. Ct. 3462 (2010). At issue is the finding by the district
court that, at Jackson’s sentencing, he had been found responsible for 40
kilograms of crack cocaine. Therefore, we review that finding for clear error vel

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                                  No. 09-31221

non. “A finding is clearly erroneous when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948).
      Jackson relies on the district court’s statement, at sentencing, that “the 1.5
kilogram involvement is appropriate under the preponderance of the evidence
and should be used”. (Emphasis added.) Jackson asserts that this statement is
inconsistent with the court’s subsequent 40-kilogram determination when ruling
on his § 3582(c)(2) motion. But, this statement is clarified when read in the
context of the sentencing hearing.
      Regarding the total drug quantity, the PSR stated: “the total amount of
drugs attributable to . . . Jackson and other members of this conspiracy is at
least 40 kilograms of crack cocaine”. As noted, Jackson objected to this. At
sentencing, the district court overruled the objection, stating: “[the court] do[es]
adopt the factual findings of the probation office as contained in the presentence
report”.
      References to 1.5 kilograms at sentencing relate to the minimum quantity
of drugs then required to trigger the maximum base offense level. They do not
relate to the full amount for which Jackson was found responsible. Because the
PSR’s proposed findings–which state Jackson was responsible for 40 kilograms
of crack cocaine–were adopted by the district court at sentencing, this is the only
plausible interpretation.
      Therefore, our review of the record does not result in a “firm conviction
that a mistake has been committed”. Id. Thus, clear error cannot be established,
and Jackson is not eligible for the sentence modification.
                                        III.
      For the foregoing reasons, the denial of sentence modification is
AFFIRMED.

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