United States v. Steven Bennett ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1778, 08-2487 & 08-2090
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C LINT W OODS, STEVE B ENNETT
and D AVID M C D ONALD,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
Nos. 00 CR 14 & 00 CR 35—Robert L. Miller, Jr., Chief Judge.
A RGUED D ECEMBER 4, 2008—D ECIDED S EPTEMBER 9, 2009
Before B AUER, P OSNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. This is a consolidated appeal
of the denial of three defendants’ motions to modify
their sentences pursuant to 18 U.S.C. § 3582(c)(2). All
three defendants were indicted, along with others, on
multiple charges in a drug trafficking ring and entered
into plea agreements that included appellate waivers. The
government maintains we should dismiss the appeals
2 Nos. 08-1778, 08-2487 & 08-2090
because the waiver bars our review. Because we
conclude that § 3582(c)(2) motions do not fall within the
waiver’s scope, we hold that the waivers do not bar the
defendants’ appeals of the denials of their § 3582(c)(2)
motions. However, because we conclude that the district
court did not err in denying the motions, we affirm.
I. BACKGROUND
Clint Woods pled guilty to conspiracy with intent to
distribute crack cocaine in violation of 21 U.S.C. § 846 on
May 24, 2000. On December 8, 2000, the court sentenced
him to 235 months’ imprisonment and three years’ super-
vised release. Steve Bennett pled guilty to conspiracy
with intent to distribute crack cocaine in violation of § 846
on December 17, 2001. On April 26, 2002, the court sen-
tenced Bennett to 210 months’ imprisonment and five
years’ supervised release.
The government moved to reduce Woods’s and Bennett’s
terms of imprisonment, and the court granted the motion
on September 3, 2003, reducing each of their sentences
to 168 months. Woods and Bennett had already received
other sentence reductions, and additional counts against
them had been dismissed in exchange for their coopera-
tion with the government.
David McDonald pled guilty to conspiracy with intent
to distribute crack cocaine in violation of § 846 on
August 3, 2000. On December 19, 2000, the court sentenced
McDonald to 235 months’ imprisonment and five years’
supervised release. Upon the government’s motion, the
Nos. 08-1778, 08-2487 & 08-2090 3
court reduced his sentence to 188 months’ incarceration
in June 2003.
The presentence report (“PSR”) for each defendant
concluded that each was responsible for distributing
more than 1.5 kilograms of cocaine base or more than
150 kilograms of cocaine powder. The court adopted the
PSR report and made no other specific findings as to the
drug quantities attributable to each defendant. Each PSR
explained that from 1992 to 1998, the entire conspiracy
distributed about 345 kilograms of crack and about
230 kilograms of powder, but it did not attribute a
specific amount to Woods, Bennett, or McDonald
other than more than 1.5 kilograms of crack.
The United States Sentencing Commission amended the
guidelines effective on November 1, 2007, lowering the
penalties for most crack cocaine offenses by two levels to
ameliorate the 100 to 1 drug-quantity ratio between
crack cocaine and powder cocaine as found in § 2D1.1 of
the United States Sentencing Guidelines. See U.S.S.G.
app. C, amend. 706 (2007). The Commission made some
technical changes to § 2D1.1 with Amendment 711.
U.S.S.G. app. C, amend. 711 (2007). The Commission
made the amendments retroactive to cases sentenced
before the amendments’ enactments. Because the court
sentenced Woods, Bennett, and McDonald before enact-
ment of the amendments, they each filed § 3582(c)(2)
motions.
The district court denied Woods’s motion because it
concluded that Amendments 706 and 711 to the guide-
lines do not apply retroactively to a defendant who
4 Nos. 08-1778, 08-2487 & 08-2090
possessed with intent to distribute other drugs in addi-
tion to crack. The district court denied Bennett’s and
McDonald’s motions because it concluded that each were
accountable for more than 4.5 kilograms of cocaine
base, and the amendments did not change the base
offense level when quantities that great are involved.
Woods, Bennett, and McDonald appeal the denial of
their § 3582(c)(2) motions.1
II. ANALYSIS
A. The defendants did not waive their right to appeal
the denial of their § 3582(c)(2) motions.2
Before potentially reaching the merits of the defendants’
arguments that the court erred in denying their § 3582(c)(2)
motions, we must determine whether to dismiss these
appeals because each defendant entered into a plea agree-
ment containing the following waiver:
I further expressly waive my right to appeal my
sentence on any ground, including any appeal
right conferred by Title 18, United States Code
3742. I also agree not to contest my sentence or the
manner in which it was determined in any
1
Chief Judge Miller presided over each defendant’s § 3582(c)(2)
proceedings, as well as McDonald’s sentencing and change of
plea hearing. Judge Sharp presided over Woods’s and
Bennett’s sentencing and change of plea hearings.
2
While this opinion was at the printer, our court decided
United States v. Monroe, No. 08-2945 (7th Cir. Sept. 1, 2009),
which is consistent with our reasoning here.
Nos. 08-1778, 08-2487 & 08-2090 5
post-conviction proceeding, including, but not
limited to a proceeding under Title 28, United
States Code § 2255.
The defendants maintain that a § 3582(c)(2) 3 motion is not
an attack on the original sentence, but rather a request to
modify an originally correct sentence based on amend-
ments to the sentencing guidelines. Therefore, they main-
tain the plea did not bar their motion or this appeal. The
government contends we must dismiss the appeal
because the waiver bars any manner of appellate re-
view. At oral argument, the government acknowledged
that it did not assert waiver in the district court in
response to any of the defendants’ § 3582(c)(2) motions.
The government explained that the United States Attor-
ney’s Office for the Northern District of Indiana had a
policy allowing prosecutors to forego enforcement of
sentence-challenging waivers in § 3582(c)(2) motions
3
18 U.S.C. § 3582(c)(2) provides:
The court may not modify a term of imprisonment once
it has been imposed except that . . . in the case of a
defendant who has been sentenced to a term of impris-
onment based on a sentencing range that has subse-
quently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o), upon motion of the
defendant or the Director of the Bureau of Prisons, or
on its own motion, the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
6 Nos. 08-1778, 08-2487 & 08-2090
before the district court, but that it asserts waiver if a
defendant attempts to appeal the district court’s decision.
We review the enforceability of a waiver agreement
de novo. Jones v. United States, 167 F.3d 1142, 1144 (7th
Cir. 1999). It is well-settled that appellate waivers in
plea agreements are generally enforceable. United States v.
Emerson, 349 F.3d 986, 988 (7th Cir. 2003); see United States
v. Nave, 302 F.3d 719, 720-21 (7th Cir. 2002). “But [an
appellate waiver] does not, in every instance, foreclose
review.” United States v. Mason, 343 F.3d 893, 894 (7th Cir.
2003) (internal quotation marks and citation omitted).
For the waiver to be enforceable, the disputed appeal
must fall within its scope. See United States v. Vega, 241
F.3d 910, 912 (7th Cir. 2001) (per curiam). We will enforce
an appellate waiver if its terms are “express and unambig-
uous,” see United States v. Woolley, 123 F.3d 627, 632 (7th
Cir. 1997), and the record shows that the defendant
“ ‘knowingly and voluntarily’ ” entered into the agreement.
United States v. Jemison, 237 F.3d 911, 917 (7th Cir.
2001) (quoting Jones v. United States, 167 F.3d 1142, 1144
(7th Cir. 1999)).
To determine if a defendant knew and understood the
plea agreement, we must examine the language of the
plea agreement itself and also look to the plea colloquy
between the defendant and the judge. Woolley, 123 F.3d
at 632; see also United States v. Sura, 511 F.3d 654, 661
(7th Cir. 2007) (the district court must inform the
defendant of an appellate waiver during the Rule 11
colloquy). A plea agreement is a type of contract subject
to contract law principles, but limited by constitutional
Nos. 08-1778, 08-2487 & 08-2090 7
considerations. See United States v. Bownes, 405 F.3d 634,
636 (7th Cir. 2005). We interpret the terms of the agree-
ment according to the parties’ reasonable expectations
and construe any ambiguities against the drafter—the
government—and in favor of the defendant. See Vega,
241 F.3d at 912; accord United States v. Stearns, 479 F.3d
175, 178 (2d Cir. 2007); United States v. Speelman, 431 F.3d
1226, 1231 (9th Cir. 2005).
The waiver at issue does not include an express provi-
sion barring the filing of § 3582(c)(2) motions, as some
plea agreements do. See, e.g., Stearns, 479 F.3d at 177;
United States v. Gordon, 480 F.3d 1205, 1208 (10th Cir.
2007). Therefore, we must interpret the terms of the
agreement to decide if this appeal falls within the scope
of the waiver. See Vega, 241 F.3d at 912 (disputed appeal
fell outside scope of appellate waiver because parties
expected the term “sentence” in the waiver to include
only the events of the sentencing hearing and not a
later attempt by the court to amend the sentence).
Two of our sister circuits have addressed appellate right
waivers following the denial of a § 3582(c)(2) motion, and
both have concluded that the waivers at issue did not
bar the appeals. In United States v. Chavez-Salais, the Tenth
Circuit interpreted a broadly-worded waiver and con-
cluded that appealing the denial of a § 3582(c)(2) motion
did not fall within the scope of the waiver. 337 F.3d 1170
(10th Cir. 2003). The language of the waiver in Chavez-
Salais was similar to the one at issue here, except in
one aspect—that waiver barred the defendant from
challenging his sentence in any “collateral attack” rather
8 Nos. 08-1778, 08-2487 & 08-2090
than in any “post-conviction proceeding” as in our case.4
Id. at 1172. The court determined that § 3582(c)(2) motions
were not within the conventional understanding of collat-
eral attacks because § 3582(c)(2) motions ask a court to
modify a sentence pursuant to changes in the guide-
lines, but do not “complain about the substance of, or
proceedings that determined, a defendant’s original
sentence or conviction” as other collateral attacks do. Id.
In United States v. Leniear, the Ninth Circuit also
rejected the government’s argument that the defendant’s
4
The waiver in Chavez-Salais stated:
Defendant knowingly waives the right to appeal any
sentence within the guideline range applicable to the
statute of conviction as determined by the Court after
resolution of any objections by either party to the
presentence report to be prepared in this case, and
defendant specifically agrees not to appeal the determi-
nation of the Court in resolving any contested sentenc-
ing factor. In other words, Defendant waives the right
to appeal the sentence imposed in this case except to
the extent, if any, that the Court may depart upwards
from the applicable sentencing guideline range as
determined by the Court. The defendant also waives
his right to challenge his sentence or the manner in
which it was determined in any collateral attack,
including but not limited to, a motion brought under
Title 28, United States Code, Section 2255, except to
the extent that the court may depart upwards from
the applicable sentencing guideline range.
337 F.3d at 1172.
Nos. 08-1778, 08-2487 & 08-2090 9
appellate waiver precluded the court’s review of the
§ 3582(c)(2) motion denial. No. 08-30199, 2009 WL 2216784,
at *2 (9th Cir. July 27, 2009). The plea agreement in
that case contained a waiver of the defendant’s right to
appeal the sentence pursuant to § 3742 and his right to
collaterally attack his sentence.5 Id. The district court
denied Leniear’s sentence-reduction motion because it
concluded that Leniear was not eligible for a reduction
under Amendment 706. On appeal, the Leniear court
declined to dismiss the appeal because it concluded
that the waiver barred only the defendant’s right under
§ 3742 to appeal the sentence imposed at sentencing. Id.
at *2. The court reasoned that Leniear was not ap-
pealing his sentence, but rather “the district court’s
conclusion that it lacked jurisdiction to modify his sen-
tence.” Id.
5
The waiver in Leniear states in part:
The defendant also understands and agrees that as
consideration for the government’s commitments under
this plea agreement, and if the court accepts this plea
agreement and imposes a sentence no greater than the
maximum statutory penalties available for the offense
of conviction, including any forfeiture under this plea
agreement, he will knowingly and voluntarily waive his
right, contained in 18 U.S.C. § 3742, to appeal the
sentence—including all conditions of supervised
release and forfeiture-imposed.
Leniear, 2009 WL 2216784, at *2. The plea agreement also
contained language barring the defendant from collaterally
attacking his sentence. Id. at *2 n.3.
10 Nos. 08-1778, 08-2487 & 08-2090
Like the courts in Chavez-Salais and Leniear, we do not
believe the waiver here bars the defendants’ appeals.
Neither the language of the waiver itself nor that of the
colloquies demonstrate that the defendants contemplated
waiving their right to appeal the denials of the sentence-
reduction motions based on subsequent changes to the
guidelines.6
We do not believe that § 3582(c)(2) motions contest the
initially imposed sentence as precluded by the second
sentence of the waiver. Rather, § 3582(c)(2) motions
bring to the court’s attention changes in the guidelines
that allow for a sentence reduction. As the court said in
Chavez-Salais, “[W]e do not believe that motions
under 18 U.S.C. § 3582(c)(2) are clearly understood to
fall within a prohibition on ‘any collateral attack.’ Defen-
dant’s motion under § 3582(c)(2) does not so much chal-
lenge the original sentence as it seeks a modification of
6
We also note that a district court, on its own motion, may
modify a defendant’s sentence under § 3582(c)(2) even if a
defendant agreed not to pursue any avenues of relief. See
§ 3582(c)(2) (“upon motion of the defendant or the Director of
the Bureau of Prisons, or on its own motion, the court may
reduce the term of imprisonment”); see also United States v.
Taylor, 520 F.3d 746, 748 (7th Cir. 2008) (“[T]he judge can do
this on his own initiative, or on motion by the director of the
federal bureau of prisons, without a motion by the defendant.”).
Although the government contends that the waiver bars
modification of the sentence in any post-conviction pro-
ceeding, the waiver would not block a district court from
reducing the sentence sua sponte in the appropriate situation.
Nos. 08-1778, 08-2487 & 08-2090 11
that sentence based upon an amendment to the Guide-
lines.” 337 F.3d at 1173. Indeed, the defendants could not
contest the district court’s original sentence of imprison-
ment through § 3582(c)(2) proceedings because § 3582(c)(2)
provides no avenue through which to attack the original
sentence. See United States v. Lloyd, 398 F.3d 978, 979-80
(7th Cir. 2005).
We also conclude that this appeal is not barred by the
waiver’s first sentence, which gives up each defendant’s
right to “appeal my sentence on any ground,” including
any right under 18 U.S.C. § 3742. The defendants
have not appealed their originally imposed sentence,
rather, they appeal the denials of their sentence-reduction
motions because they believe the district court incor-
rectly concluded that they were ineligible for a reduction.
See Leniear, 2009 WL 2216784, at *2 (the defendant
appealed the district court’s denial of the sentence-modifi-
cation motion, not the original sentence); see also Jackson
v. United States, 463 F.3d 635, 638 (7th Cir. 2006) (“[T]his
Circuit has never offered § 3742 as an avenue to review
the denial of a collateral attack; it has always been con-
sidered a route for direct appeal.”). The district court
here did not refuse to lower the defendants’ sentences
based on discretion, but rather based its determination
on the conclusion that it did not have jurisdiction to do so
because it believed the defendants’ sentencing range
was not lowered by the amendments. See United States v.
Poole, 550 F.3d 676, 678 (7th Cir. 2008) (§ 3582(c)(2) limits
the district court’s subject matter jurisdiction). The
waivers do not bar review of the district court’s conclu-
sion that it has no authority to grant a § 3582(c)(2) motion.
See United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.
12 Nos. 08-1778, 08-2487 & 08-2090
2000) (“[J]ust as we are willing to enforce waivers of
appeal, we enforce them only to the extent of the agree-
ment.”).
We also reject the government’s contention that even if
the text of the waiver is not clear, the judge in each plea
colloquy sufficiently explained that the defendants could
not appeal the rulings. Although each judge ensured
that the defendants entered into the plea agreements
voluntarily and knowingly, they never made clear that
the waiver precluded the defendants from pursuing
§ 3582(c)(2) motions if there was a subsequent amend-
ment to the sentencing guidelines. In fact, neither judge
mentioned § 3582(c)(2) proceedings at all. Although each
explained that his sentencing decision was final and that
the defendant could not complain about his decision to
the appellate court, the judge was referring to the sen-
tence being handed down at the sentencing hearing.
When each judge explicitly described what rights the
waiver encompassed, they focused exclusively on § 2255
motions and direct appeals. Based on the colloquies,
it seems all present had the same conventional under-
standing of the term “post-conviction proceeding” as the
Chavez-Salais court had of the term “collateral attack.” See
Chavez-Salais, 337 F.3d at 1174. The colloquies do not
support the government’s contention that the defendants
contemplated waiving their rights to appeal the denial of
a § 3582(c)(2) motion. See United States v. Jones, No. 08-
13432, 2009 WL 1783994, at *1 n.1 (11th Cir. June 24,
2009) (unpublished opinion) (rejecting government’s
attempt to assert appeal waiver after defendant attempted
to reduce his sentence under Amendment 706 because
Nos. 08-1778, 08-2487 & 08-2090 13
the language of the waiver and the colloquy did not
contemplate a “waiver of rights in the event of a retroac-
tive guidelines amendment”). The government could
have easily addressed § 3582(c)(2) in the text of the
waiver, clearing up any ambiguity, but it did not do so.
The defendants did not give up their right to appeal the
district court’s denial of their § 3582(c)(2) motions, and
therefore we reach the merits of their appeals.
B. A conviction for multiple drug types does not
make Woods ineligible for a sentence reduction.
Woods challenges the district court’s order denying
his § 3582(c)(2) motion because it concluded that Amend-
ment 706 is not retroactive for cases involving multiple
drug types like Woods’s which involved both crack and
powder cocaine. We review the district court’s application
of sentencing guidelines de novo. United States v.
Samuels, 521 F.3d 804, 815 (7th Cir. 2008).
As the government concedes, Woods is correct that he
is now eligible for a reduction despite having been con-
victed of possessing multiple drug types. The court’s
order reveals that, in accordance with the amendments
in effect at the time, it considered only Amendments 706
and 711, which retroactively reduced by two offense
levels certain crack offenses and provided instruction on
how to calculate the base offense level for offenses in-
volving crack and another drug type. See U.S.S.G. Supp.
to app. C, amends. 706, 711 (2007). The methodology for
calculating the offense level for other drug types created
14 Nos. 08-1778, 08-2487 & 08-2090
some bizarre results. See, e.g., United States v. Molina, 541
F. Supp. 2d 530, 532 (E.D.N.Y. 2008). The Sentencing
Commission changed this with Amendments 715 and 716,
which fixed some of the problems in applying the retro-
active reduction to offenses involving multiple drug
types, effective May 1, 2008. See U.S.S.G. Supp. to app. C,
amends. 715, 716 (2008). The court denied Woods’s
§ 3582(c)(2) motion on March 11, 2008, and the court’s
reasoning for denying the motion is no longer the
proper analysis in light of the retroactive application of
Amendment 715. See U.S.S.G. § 1B1.10(c).
Nevertheless, the government maintains we should
find this error harmless because Woods was responsible
for more than 4.5 kilograms of crack and therefore is
ineligible for a reduction. Because this argument applies
to all three defendants, we resolve this issue below.
C. The district court did not err in finding the defen-
dants ineligible for a reduction.
Each defendant’s PSR explained that members of the
conspiracy distributed approximately 345 kilograms of
crack and approximately 230 kilograms of powder
cocaine between 1992 and 1998. During the length of the
conspiracy, kilograms of drugs were transported from
Chicago to Michigan and Indiana almost every week.
Each PSR also stated that the amount attributable to
Woods, Bennett, and McDonald individually exceeded
1.5 kilograms of crack. The court adopted each PSR,
specifically finding that each of the defendants was
Nos. 08-1778, 08-2487 & 08-2090 15
responsible for amounts in excess of 1.5 kilograms of
crack.7
In the denials of Bennett’s and McDonald’s § 3582(c)(2)
motions, the district court concluded that the amend-
ments did not benefit either defendant because each
was responsible for more than 4.5 kilograms of crack
cocaine and the base offense level does not change
when such large quantities are involved. The defendants
argue that this was a different factual finding than what
was found by the original sentencing court, which, they
contend, is not allowed in a § 3582(c)(2) proceeding.
The district court was correct that if the defendants
were responsible for more than 4.5 kilograms of crack
cocaine, the amendments do not benefit them. See United
States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (Amend-
ment 706 “affects only defendants who are responsible
for distributing fewer than 4.5 kilograms of crack co-
caine”); see also § 3582(c)(2) (permitting a court to
modify a sentence only “in the case of a defendant who
has been sentenced to a term of imprisonment based on
7
The government maintains that the court also found McDon-
ald responsible for 150 kilograms of powder cocaine, making
him ineligible for a reduction because this amount would place
him at Level 38. We reject the government’s argument on this
point because the PSR states: “this defendant’s criminal activity
was distribution of more than 1.5 kilograms of cocaine base
or more than 150 kilograms of cocaine powder.” (emphasis
added). We do not believe this is a finding of 150 kilograms
of powder cocaine, but rather a restatement of what qualifies
for an offense Level 38 in the guidelines.
16 Nos. 08-1778, 08-2487 & 08-2090
a sentencing range that has subsequently been lowered
by the Sentencing Commission”).
We agree with the defendants that district courts in
§ 3582(c)(2) proceedings cannot make findings incon-
sistent with that of the original sentencing court. See
United States v. Armstrong, 347 F.3d 905, 909 (11th Cir.
2003) (“[A] motion to modify an otherwise final judg-
ment pursuant to § 3582(c)(2) is a limited and narrow
exception to the rule that final judgments are not to be
modified.”) (quotation marks omitted); see also United
States v. Adams, 104 F.3d 1028, 1030-31 (8th Cir. 1997)
(“[T]he sentencing guidelines direct a district court . . . to
consider the sentence that it would have imposed had
the amendment . . . been in effect at the time of the
original sentencing. We think it implicit in this directive
that the district court is to leave all of its previous
factual decisions intact when deciding whether to apply
a guideline retroactively.”) (internal citations and quota-
tion marks omitted).
Here, however, in denying the defendants’ sentence-
reduction motions, the district court did not make
findings inconsistent with those of the original sentencing
court. Rather, the district court examined the record as
a whole, considered the defendants’ motions, the gov-
ernment’s responses, and the addenda to the PSRs ex-
plaining the conspiracy’s distribution of hundreds of
kilograms over the years before making a finding that the
defendants were responsible for amounts in excess of
Nos. 08-1778, 08-2487 & 08-2090 17
4.5 kilograms.8 See United States v. Atkinson, 259 F.3d 648,
653 (7th Cir. 2001) (noting that the district court con-
sidered the parties’ briefs and expanded record in consid-
ering the § 3582(c)(2) motion). District courts have broad
discretion in how to adjudicate § 3582(c)(2) proceeding.
See United States v. Young, 555 F.3d 611, 614-15 (7th Cir.
2009). We think the court did enough in this case. Here,
the district court had the opportunity to review the
entire record and received written arguments from
both sides when considering the § 3582(c)(2) motions.
Although a court may choose to hold a hearing, the
district court in its discretion chose not to do so. See id.
We cannot say the court abused its discretion, especially
in light of the large quantity of drugs involved
here—more than 300 kilograms above the 4.5 kilogram
cutoff. See United States v. Cunningham, 554 F.3d 703, 707
(7th Cir. 2009). Had the original sentencing court found
that the defendants were responsible for exactly 1.5
kilograms, we would have a different case, but a finding
that the defendants were responsible for at least 4.5
kilograms is not inconsistent with the conclusion of
the original sentencing court that the defendants were
responsible for amounts in excess of 1.5 kilograms.
And there was ample evidence on the record to find each
defendant responsible for more than 4.5 kilograms. The
district court’s sentencing memorandum for Woods
8
McDonald also submitted a reply brief contending that the
district court never found he was responsible for more than
4.5 kilograms.
18 Nos. 08-1778, 08-2487 & 08-2090
discussed the hundreds of kilograms attributable to the
conspiracy and stated that he did not challenge those
figures. Bennett’s PSR, which the district court adopted
without objection, explained that he was involved in
the conspiracy from 1992 to at least 1998. McDonald’s
PSR, also adopted without objection, described how he
worked as a runner, delivering crack and money from
1992 to 1998. The conspiracy was clearly responsible for
distributing amounts in excess of 4.5 kilograms over
the years, and based on the record as a whole, the
district court reasonably found that the defendants were
responsible for more than 4.5 kilograms of crack each
and, therefore, that they were ineligible for a reduction
under Amendment 706.
III. CONCLUSION
Therefore, we A FFIRM the district court’s denial of the
defendants’ § 3582(c)(2) motions.
9-9-09