United States v. Aaron Davis ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1313, 11-1323, 11-2057,
11-2061, 11-2062 & 11-2071
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A ARON M. D AVIS, B OBBY S UGGS,
W ILLIAM J. D AVISON, S EANTAI S UGGS,
T ERRAUN P RICE, T ERENCE D ILWORTH,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
Nos. 2:01-CR-00098 & 2:02-CR-00044–James T. Moody, Judge.
A RGUED JANUARY 20, 2012—D ECIDED M AY 31, 2012
Before F LAUM and R OVNER, Circuit Judges, and
C ASTILLO, District Judge. Œ
Œ
The Honorable Ruben Castillo, United States District Court
for the Northern District of Illinois, sitting by designation.
2 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
C ASTILLO, District Judge. This is a consolidated appeal
of the denial of six defendants’ motions to reduce their
sentences pursuant to 18 U.S.C. § 3582(c)(2) based on the
retroactive crack cocaine amendments to the United
States Sentencing Guidelines. Defendants raise a num-
ber of challenges on appeal. For the reasons discussed
below, we affirm the judgments entered by the district
court.
I. BACKGROUND
Bobby Suggs, Aaron Davis, Seantai Suggs, Terraun
Price, Terence Dilworth, and William Davison were all
members of the Concord Affiliated (“CCA”) street gang
in Gary, Indiana. From 1994 until 2001, CCA street gang
members conspired to distribute crack cocaine and other
drugs in the Concord neighborhood of Gary. United
States v. Suggs, 374 F.3d 508, 512 (7th Cir. 2004); United
States v. Price, 418 F.3d 771, 775 (7th Cir. 2005).1 The
drug trafficking occurred near a government housing
complex known as “the Hill.” Suggs, 374 F.3d at 508;
Price, 418 F.3d at 775. The conspiracy eventually came to
be led by Bobby, who obtained kilogram quantities of
powder cocaine from Tomas Unzueta. Suggs, 374 F.3d
at 508; Price, 418 F.3d at 775. Bobby and his co-conspirators
1
The full background of the conspiracy may be found in our
prior opinions in United States v. Suggs, 374 F.3d 508 (7th Cir.
2004) and United States v. Price, 418 F.3d 771 (7th Cir. 2005).
Here, we only summarize those facts that are relevant to the
defendants’ § 3582(c)(2) motions.
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 3
converted the powder cocaine into crack cocaine, which
was then distributed to trusted associates. Suggs, 374
F.3d at 508. Those trusted associates then distributed
the crack cocaine to others or directly sold the crack
cocaine to customers. Id.
The convictions of Bobby, Davis, Seantai, and Price
stem from an 18-person, 33-count superseding indict-
ment for conspiracy and distribution of crack cocaine
returned by a grand jury in 2001. The convictions of
Dilworth and Davison stem from a 6-person, 14-count
indictment for conspiracy and distribution of crack
cocaine returned by a grand jury in 2002.
In July 2002, Bobby, Davis, and Seantai proceeded to a
jury trial and were convicted on all counts. Bobby, Davis,
and Seantai were each convicted of one count of
conspiracy to distribute crack cocaine in violation of 21
U.S.C. § 846 and 18 U.S.C. § 2, in addition to other
related drug offenses. At sentencing, the district court
concluded that each was responsible for distributing in
excess of 1.5 kilograms of crack cocaine. In late 2002,
the district court sentenced Bobby and Seantai to life
imprisonment. In early 2003, the district court sentenced
Davis to 405 months’ imprisonment.
On March 31, 2003, Price, Dilworth, and Davison pro-
ceeded to a jury trial. On April 9, 2003, the jury found
Price and Dilworth guilty of conspiracy to distribute
crack cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C.
§ 2, and found Davison not guilty of this count. The
jury also convicted Dilworth and Davison of two counts
of distribution of crack cocaine in violation of 21 U.S.C.
4 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
§ 841(a)(1). Price was also convicted of one count of use
of a communications facility for the distribution of crack
cocaine in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.
At sentencing, the district court concluded that each
was responsible for distributing in excess of 1.5 kilograms
of crack cocaine. In October 2003, the district court sen-
tenced Price to life imprisonment, and Dilworth and
Davison to 360 months’ imprisonment.
We later affirmed the convictions of each defendant.
Suggs, 374 F.3d at 521; Price, 418 F.3d at 788. Bobby,
Davis, and Seantai did not appeal their sentences, Suggs,
374 F.3d at 511, while Price, Dilworth, and Davison ap-
pealed their sentences. Price, 418 F.3d at 775. Because
Price, Dilworth, and Davison were sentenced prior to
the Supreme Court’s decision in United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),
we ordered a limited remand in accordance with the
procedure set forth in United States v. Paladino, 401 F.3d
471, 483-84 (7th Cir. 2005). We asked the district court to
determine whether it would have imposed a different
sentence on Price, Dilworth, and Davison had it under-
stood the Guidelines to be advisory. Price, 418 F.3d at 786-
88. The district court responded that it would have im-
posed the same sentences, and we then affirmed those
sentences in separate opinions. United States v. Price, 155
Fed. Appx. 899, 2005 WL 3113458 (7th Cir. 2005); United
States v. Dilworth, 168 Fed. Appx. 89, 2006 WL 279062
(7th Cir. 2006); United States v. Davison, 166 Fed. Appx.
246, 2006 WL 314463 (7th Cir. 2006).
In late 2007, the United States Sentencing Commis-
sion adopted Amendment 706, which lowered the base
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 5
offense level for crack cocaine offenses by two levels to
alleviate problems associated with the penalty structure
commonly known as the “100-to-1 drug-quantity ratio”
between crack cocaine and powder cocaine offenses as
found in § 2D1.1 of the United States Sentencing Guide-
lines. United States Sentencing Commission, Guidelines
Manual, App. C, 226-231 (Nov. 2011) (Amendment 706)
(USSG). Amendment 706, subsequently fine-tuned by
Amendments 711 and 715, was made retroactive by the
Sentencing Commission via Amendment 713. USSG
App. C, 241-244 (Nov. 2011) (Amendments 711, 713,
715). At the time defendants were sentenced, offenses
involving 1.5 kilograms or more of crack cocaine were
assigned the highest possible base offense level of 38.
USSG § 2D1.1(c) (Nov. 2002). As a result of Amendment
706, only offenses involving 4.5 kilograms or more of
crack cocaine are assigned an offense level of 38, whereas
offenses involving between 1.5 kilograms and 4.5 kilo-
grams of crack cocaine are assigned a base offense level
of 36.2 See USSG § 2D1.1(c) (2007); United States v. Hall,
2
In late 2010, the Sentencing Commission again revised the
base offense levels for crack cocaine offenses via Amendment
748, which implemented “the emergency directive in section 8
of the Fair Sentencing Act of 2010.” USSG App. C, 381 (Nov.
2011) (Amendment 748). Effective November 1, 2010, a base
offense level of 38 is applied if the amount of crack cocaine
involved is 8.4 kilograms or more; a base offense level of 36
is applied if the amount of crack cocaine involved is between
2.8 kilograms and 8.4 kilograms; and a base offense level of
34 is applied if the amount of crack cocaine involved is
(continued...)
6 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
582 F.3d 816, 817 (7th Cir. 2009) (hereinafter “Mark Hall”).
After the enactment of Amendment 706, each defendant
filed a motion to reduce his sentence pursuant to
§ 3582(c)(2). Section 3582(c)(2) allows “a defendant who
has been sentenced to a term of imprisonment based on
a sentencing range that has subsequently been lowered
by the Sentencing Commission” to move for a reduction
in his sentence. 18 U.S.C. § 3582(c)(2).
We commend the district court for the procedure it
followed. The district court appointed counsel in connec-
tion with each defendants’ § 3582(c)(2) motions, and
probation prepared new reports as to each defendants’
request for a reduced sentence. After considering each
defendants’ request for a sentence modification, the
district court prepared written orders detailing the basis
of its decision.
Each addendum to the defendants’ presentence in-
vestigation reports (“PSRs”), with the exception of
Davison’s, concluded that Amendment 706 did not
impact their sentences because they were each
responsible for more than 4.5 kilograms of crack cocaine.
As to Davison, the 2008 addendum to his PSR advised
that his base offense level should be reduced by two
levels because he was responsible for more than 1.5
kilograms of crack cocaine but less than 4.5 kilograms,
yielding a lower Guideline range. In separate rulings,
2
(...continued)
between 840 grams and 2.8 kilograms. USSG § 2D1.1(c)
(Nov. 2011).
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 7
the district court denied each defendants’ § 3582(c)(2)
motions.
A. Bobby Suggs
Bobby’s original PSR established that he was the
leader of the CCA street gang and that from at least
1996 until the summer of 2001, the conspiracy distributed
“in far excess of 1.5 kilograms of crack cocaine.” The PSR
reported that Bobby received kilogram quantities of
cocaine from certain suppliers, which was converted to
crack cocaine. He then distributed the crack cocaine to
select members of the CCA street gang, including Davis,
Seantai, and Dilworth, who in turn distributed the
crack cocaine to other CCA street gang members. For
sentencing purposes, the PSR advised that Bobby could
be held responsible for at least 17.1 kilograms of crack
cocaine. This amount was established by statements
from Unzueta estimating that he delivered seven kilo-
grams 3 of powder cocaine to Bobby, which converts to
6.2 kilograms of crack cocaine.4 Unzueta also indicated
that he supplied Anthony Evans, known to have assisted
3
An earlier paragraph of the PSR noted that at Bobby’s trial,
Unzueta testified that he delivered 10 to 15 kilograms of
powder cocaine to Bobby. The record is not clear as to why
the PSR only relied upon seven kilograms of powder cocaine
to calculate the total amount of crack cocaine for which
Bobby could be held responsible. Due to the quantities in-
volved, however, this difference is immaterial to our analysis.
4
One kilogram of pure powder cocaine is equivalent to
890 grams of crack cocaine.
8 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
Bobby in obtaining kilogram quantities of cocaine and
with cooking powder cocaine, with at least 12 kilograms
of powder cocaine, which converts to 10.68 kilograms
of crack cocaine. The PSR also advised that Bobby
could be held responsible for an additional 28.34 grams
of crack cocaine, and 177 grams of crack cocaine that
the FBI recovered from the CCA street gang. These
amounts add up to approximately 17.1 kilograms of crack
cocaine, resulting in a base offense level of 38. Addition-
ally, the PSR recommended a two-level enhancement
because the FBI recovered approximately 41 weapons
from the CCA street gang, 11 of which were traced to
Bobby and Seantai. Bobby also received a four-level
enhancement because of his role as the leader of the
CCA street gang, and a two-level enhancement for ob-
structing proceedings. Bobby’s total offense level was
46, and when combined with his criminal history
category of II, his Guideline range for imprisonment
was life. The district court sentenced Bobby to life im-
prisonment.
In connection with Bobby’s motion for a reduced sen-
tence, probation submitted an addendum to the PSR
informing the district court that Bobby was not eligible
for a sentence reduction because his criminal activity
involved the distribution of more than 4.5 kilograms of
crack cocaine. The district court denied Bobby’s motion
after concluding that it lacked statutory authority and
jurisdiction to reduce his sentence because his Guideline
range had not been lowered as a result of Amendment 706.
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 9
B. Aaron Davis
Davis’ PSR indicated that he was one of Bobby’s top
lieutenants. In that role, Bobby relied, in part, on Davis to
distribute crack cocaine to the street sellers. The PSR
reported that Davis supplied others with cocaine to sell
on “the Hill” as early as 1994, and that in 1998, the FBI
made a series of controlled buys of five grams or more
of crack cocaine from Davis and Seantai. The PSR
further noted that Michael Carter, a co-conspirator, told
investigators that Davis moved to Indianapolis in 1997,
but that after this move Davis continued to travel
between Gary and Indianapolis and continued to sell
cocaine to Carter. For sentencing purposes, the PSR
advised that Davis could be held responsible for the
distribution of at least 19.8 kilograms of crack cocaine.
This amount was established by statements from
Unzueta estimating that he delivered 10 to 15 kilograms
of powder cocaine to Bobby, which converts to 8.9 kilo-
grams of crack cocaine,5 and that he supplied Evans with
5
As noted above, although Bobby’s PSR advised that
Unzueta testified at Bobby’s trial that he had delivered 10 to 15
kilograms of powder cocaine to Bobby, Bobby’s PSR only took
into account seven kilograms of this amount when calculating
the total amount of crack cocaine for which Bobby could be
held responsible. The record is unclear as to why Davis’ PSR
relied on the 10 to 15 kilogram quantity of powder cocaine, as
opposed to seven kilograms of powder cocaine, in calculating
the total amount of crack cocaine for which Davis could be
held responsible. Even if Davis were only held responsible
(continued...)
10 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
at least 12 kilograms of powder cocaine. The PSR also
advised that Davis could be held responsible for an
additional 28.34 grams of crack cocaine, and 177 grams of
crack cocaine that the FBI recovered from the CCA street
gang. These amounts add up to approximately 19.8
kilograms of crack cocaine, yielding a base offense level
of 38. Because one of the 41 weapons the FBI recovered
from the CCA street gang was recovered from Davis’
residence, the PSR recommended a two-level enhance-
ment. The PSR also recommended a three-level enhance-
ment for Davis’ role as a top lieutenant of the CCA
street gang, for a total offense level of 43. The PSR also
advised that Davis had a criminal history category of II.
In a 2003 addendum to the PSR, Davis lodged a number
of objections. Both the government and Davis objected
to the leadership enhancement citing insufficient evidence
for the enhancement. The district court adopted both of
their positions. Davis also objected to the drug quantity
findings and base offense level in the PSR, contending
that the government had not established that 19.8 kilo-
grams of crack cocaine was foreseeable to him and within
the scope of his agreement. The district court rejected
Davis’ position and adopted the government’s and proba-
tion’s position as it concerned the base offense level.
In finding that Davis was responsible for more than
5
(...continued)
for seven kilograms of powder cocaine that Unzueta delivered
to Bobby, this amount converts to 6.2 kilograms of crack
cocaine, and therefore the difference is not material to our
analysis.
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 11
1.5 kilograms of crack cocaine at his original sentencing
hearing, the district court stated:
It’s this Court’s judgment that based upon a prepon-
derance of all of the evidence that it has in front of
it including all of the . . . evidence that has been intro-
duced at this hearing, that certainly it was rea-
sonably foreseeable to [Davis] as a close associate of
the leader of this drug conspiracy, Bobby Suggs, that
more than 1.5 kilograms of crack cocaine base was
involved. More likely than not, it’s the 19.8 kilograms
of crack cocaine that was involved that could be
attributable to [Davis], but certainly at a minimum
1.5 kilograms of crack cocaine is attributable to [Davis.]
In the 2003 addendum, Davis further argued that
his involvement in the conspiracy was limited to the
time period between 1996 and 1998. The government, on
the other hand, contended that it had proved at trial
that Davis remained a member of the conspiracy through
at least February 2001. According to the government
and probation, Davis’ membership in the conspiracy was
established through recorded telephone conversations
between Bobby and him in February 2001 and through
a letter he received in February 2001 from Lonnie
Carson, a co-conspirator. Additionally, the government
and probation asserted that Davis had assisted Bobby’s
attempt to evade arrest in May 2001. In the 2003 adden-
dum, the district court adopted both the government’s
and probation’s position as to these objections. Ultimately,
the district court adopted the factual findings and Guide-
line application in Davis’ PSR, with the exception of
12 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
the PSR’s recommendation that Davis’ base offense level
be increased by three levels for his role in the offense.
Accordingly, Davis’ base offense level remained 38, but
he only received a two-level firearms enhancement,
culminating in a total offense level of 40. Davis’
total offense level combined with a criminal history
category of II yielded a Guidelines range of 324 to 405
months’ imprisonment. The district court sentenced him
to the top-end of the Guidelines, 405 months’ imprison-
ment.
In 2011, the district court denied Davis’ motion for a
reduced sentence after concluding that more than 4.5
kilograms of crack cocaine were attributable to Davis,
and therefore his respective Guideline range was not
impacted by Amendment 706. Alternatively, the district
court concluded that even if Davis did qualify for a two-
level reduction in his Guideline range, it would still deny
Davis’ motion, in the exercise of its discretion, after
considering the § 3553(a) factors.
C. Seantai Suggs
Seantai’s PSR indicated that he was Bobby’s brother and
one of his top lieutenants, and that Bobby relied on him
to distribute crack cocaine to the street sellers. The PSR
reported that in 1998, the FBI made a series of controlled
buys of five grams or more of crack cocaine from Seantai
and Davis, and that Seantai and Bobby were active in
distributing crack cocaine toward the end of 2000. For
sentencing purposes, the PSR advised that Seantai could
be held responsible for the distribution of at least 16.91
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 13
kilograms of crack cocaine based on Unzueta’s state-
ments that he delivered seven kilograms of powder
cocaine to Bobby, and supplied Evans with 12 kilograms
of powder cocaine. In total, these quantities convert to
16.91 kilograms of crack cocaine, resulting in a base
offense level of 38.6 Seantai received a two-level enhance-
ment because of the numerous firearms used in fur-
therance of the conspiracy and a three-level enhance-
ment for his role as a top lieutenant. The PSR recom-
mended a total offense level of 43, and in combination
with a criminal history category of I, Seantai’s sug-
gested Guideline range was life imprisonment. In a 2002
addendum to his PSR, Seantai objected to a number of
items in the PSR including the drug types and amounts
attributed to him. Despite his objections, the district
court adopted the PSR’s factual findings and Guideline
application, and sentenced Seantai to life imprisonment.
In 2009, Seantai moved for a reduced sentence pursuant
to Amendment 706. In ruling upon Seantai’s motion, the
district court concluded that he was responsible for
more than 4.5 kilograms of crack cocaine, and therefore
did not qualify for a reduced sentence.
6
The PSR used the drug-equivalency tables in the Guidelines
to convert 16.91 kilograms of crack cocaine into a marijuana
equivalent, from which it then generated a base offense
level. USSG § 2D1.1, comment. (n.10(D)).
14 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
D. Terraun Price
Price’s PSR concluded, on the basis of law enforcement
interviews and trial testimony, that Price was responsible
for conspiring to distribute more than 1.5 kilograms of
cocaine base. The PSR noted that Price had been a
member of the conspiracy from at least 1996 until 2001.
The PSR also advised that Price was a close associate
of Bobby, and that he allowed Bobby to cook powder
cocaine in his house, kept Bobby apprised of police pres-
ence and gang activity, relayed messages from Bobby
to street-level dealers, and received large quantities of
crack cocaine from Bobby on a daily basis that he then
distributed in large quantities to street-level dealers on
“the Hill.” The PSR further noted that at Bobby’s trial,
Unzueta had testified that since at least the end of 1996,
Bobby was receiving kilogram quantities of cocaine
and Unzueta himself estimated delivering approximately
10 to 15 kilograms of cocaine to Bobby.
Numerous witnesses told investigators that Price sup-
plied them with various amounts of crack cocaine from
at least 1995 until 2001. For instance, one witness told
investigators that he was supplied with crack cocaine
by Bobby, but that Bobby never supplied him “hand-to-
hand”; rather, Price was the person who brought the
crack cocaine to dealers on “the Hill.” This witness began
selling crack cocaine on “the Hill” in 1995 and sold drugs
“off-and-on” until 2000. Over a two-year period, this
witness testified that he purchased 1/16 and 1/8 ounces
of crack cocaine from Price about twice a week. Probation
estimated that two 1/16-ounce deals per week over a two-
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 15
year period is equal to approximately 369 grams of
crack cocaine. A separate witness told investigators that
he had purchased crack cocaine from Price six times,
anywhere from 1/2 ounces to four ounces of crack co-
caine each time. Probation estimated that at a minimum,
Price sold this witness 1/2 ounces of crack cocaine on
five occasions and four ounces of crack cocaine on one
occasion, and therefore the six transactions worked out
to 184.3 grams of crack cocaine. Yet another witness
stated that on one occasion he ordered 1/8 kilogram of
crack cocaine from Bobby. The witness received
powder cocaine and asked Bobby to cook the powder
cocaine into crack cocaine. Bobby, the witness, and Price
all cooked the powder cocaine into crack cocaine.
Probation estimated that the 1/8 kilogram of cocaine
“would result in approximately 111.25 grams of crack
cocaine.” Another witness testified at Price’s trial that
Price supplied him with drugs from 1997 until March
2001, and that he purchased crack cocaine from Price on
several occasions. A different witness told investigators
that she had purchased at least $150 worth of crack cocaine
per week from Price and others on “the Hill” for about
two years, with her last purchase occurring in 1996.
Probation estimated that $150 would typically purchase
1.5 grams of crack cocaine and therefore, over a two-
year period she would have purchased approximately
156 grams of crack cocaine from CCA street gang members.
Price’s PSR concluded that he was responsible for
conspiring to distribute in excess of 1.5 kilograms of crack
cocaine, yielding a base offense level of 38. The PSR also
recommended a two-level enhancement because Price
had conspired to sell drugs with individuals who pos-
16 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
sessed firearms, and a three-level enhancement for his
role as a manager or supervisor of five or more partici-
pants. Price’s total offense level was 43 and his criminal
history category was IV, yielding a Guideline range of
life imprisonment. In a 2003 addendum to the PSR,
Price objected to the drug quantity attributable to him.
Despite his objections, the district court adopted the
factual findings and Guideline application in Price’s
PSR. The district court sentenced Price to life imprison-
ment.
In 2009, Price filed a motion for a sentence reduction.
In denying Price’s § 3582(c)(2) motion, the district court
concluded that he was responsible for more than
4.5 kilograms of crack cocaine, and therefore was not
eligible for a reduced sentence pursuant to Amend-
ment 706.
E. Terence Dilworth
Dilworth’s PSR concluded that defendants of the con-
spiracy could be held responsible for at least 16.91 kilo-
grams of crack cocaine, on the basis of Unzueta’s state-
ments regarding the quantity of powder cocaine he sup-
plied Bobby and Evans. The PSR further concluded that
the total amount of drugs attributable to Dilworth
himself exceeded 1.5 kilograms of crack cocaine.
According to the PSR, Dilworth was responsible for
bringing crack cocaine users, or customers, to “the Hill”
in the early 1990s. Witnesses recounted that Dilworth
had been selling on “the Hill” since at least 1993 or
1994. Additionally, the PSR indicated that Dilworth
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 17
received large quantities of crack cocaine directly
from Bobby to distribute to street-level dealers. The PSR
noted that one source advised the FBI that Dilworth
was not a street-level dealer on “the Hill,” but rather
more of a leader and other people on “the Hill” showed
him respect. Importantly, a confidential informant
who lived in the Concord area for approximately seven
months in 2000 stated that he or she had observed five
or six CCA street gang members, two of whom were
Dilworth and Davison, selling on average at least an
“eight-ball” 7 of crack cocaine per day on “the Hill.” Ac-
cordingly, the PSR estimated that over a seven-month
period, a group of five individuals selling an average of
3.5 grams of crack cocaine per day, resulted in the sale
of 3,675 grams of crack cocaine, or approximately 3.675
kilograms of crack cocaine. Several witnesses also
indicated that Bobby supplied a few people, including
Dilworth with “weight” crack cocaine and that Dilworth
was present when Bobby cooked cocaine into crack co-
caine. Other sources noted that Dilworth sold crack
cocaine out of Davis’ house on Grant Street in Gary.
Dilworth’s PSR concluded that his criminal activity
was distributing in excess of 1.5 kilograms of crack co-
caine, culminating in a base offense level of 38. The PSR
also recommended a two-level enhancement because a
witness had indicated that Dilworth carried a firearm
while he sold drugs and was a member of the conspir-
7
An “eight-ball” refers to 1/8 of an ounce of crack cocaine, or
approximately 3.5 grams of crack cocaine.
18 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
acy. Dilworth’s total offense level was 40, and his crim-
inal history category was III, resulting in a Guideline
range of 360 months’ to life imprisonment. In a 2003
addendum to the PSR, Dilworth contested the evidence
relied upon by probation. Despite his objections, the dis-
trict court adopted the PSR’s factual findings and Guide-
line application. The district court sentenced Dilworth to
360 months’ imprisonment, the low-end of the Guidelines.
In 2011, the district court denied Dilworth’s motion for
a sentence reduction after finding that he was re-
sponsible for more than 4.5 kilograms of crack cocaine, and
therefore Amendment 706 did not impact his sentence.
F. William Davison
Although Davison was found not guilty at trial on the
conspiracy charge against him, probation contended that
there was enough evidence to conclude that he was a
member of the conspiracy as early as 1997, that he
engaged in a jointly undertaken criminal enterprise, and
that it was reasonably foreseeable to him that the con-
spiracy was distributing in excess of 1.5 kilograms of
crack cocaine. On the basis of statements from numerous
informants, the PSR advised that Davison sold crack
cocaine in the Concord area from 1997 until 2000. The
PSR described two sales of crack cocaine totaling
1.47 grams that Davison made to confidential informants
in June 2000 and that formed the basis of his convic-
tions. The PSR also noted that a confidential informant
had purchased 1/2 ounces of crack cocaine from
Davison between 1997 and 2000, and that an under-
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 19
cover officer purchased .15 grams of crack cocaine
from Davison on “the Hill” in July 1997. Most im-
portantly, as in Dilworth’s PSR, a confidential in-
formant reported that in 2000, Davison and four or
five other individuals sold an “eight-ball” of crack co-
caine per day on “the Hill” over a seven-month pe-
riod. Accordingly, the PSR estimated that this group of five
individuals sold approximately 3.675 kilograms of crack
cocaine during this time period. Finally, the PSR recounted
that cooperating informants described Davison as a
“shooter” for the CCA street gang. Informants described
having seen Davison shooting in the air and shooting at
passing vehicles. The PSR also detailed Davison’s in-
volvement in at least two murders in 1999 and 2000.
Probation therefore concluded that Davison had engaged
in a “ ‘jointly undertaken criminal enterprise’ with other
members of the conspiracy and that the activity of the
jointly undertaken criminal enterprise to distribute in
excess of 1.5 kilograms of crack cocaine was ‘reasonably
foreseeable to [Davison].’ ”
Based on the foregoing findings, the PSR recommended
a base offense level of 38 because Davison’s criminal
activity was in excess of 1.5 kilograms of crack cocaine.
Additionally, the PSR recommended a two-level enhance-
ment because of Davison’s role as a “shooter” for the
CCA street gang. Davison’s total offense level was there-
fore 40, and when combined with a criminal history
category of I, his Guideline range was 292 to 365 months’
imprisonment. The district court adopted the factual
findings and Guideline application in the PSR, and sen-
tenced Davison within the Guidelines, to 360 months’
imprisonment.
20 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
In 2009, Davison moved for a reduced sentence. In
connection with his § 3582(c)(2) motion, probation filed
an addendum to his PSR advising that Davison qualified
for a reduced sentence pursuant to Amendment 706. The
district court nonetheless denied Davison’s motion
after concluding that he was responsible for more than
4.5 kilograms of crack cocaine, and therefore Amend-
ment 706 did not impact his sentence.
II. DISCUSSION
On appeal, Bobby, proceeding pro se, challenges the
district court’s conclusion that he does not benefit from
a revised Guidelines range. Davis, Seantai, Price,
Dilworth and Davison each challenge the district court’s
conclusion that they were responsible for distributing
more than 4.5 kilograms of crack cocaine, and therefore
are not eligible for relief.
We review a challenge to the district court’s authority
to modify a sentence de novo. United States v. Johnson, 571
F.3d 716, 717 (7th Cir. 2009) (quoting United States v.
Lawrence, 535 F.3d 631, 634 (7th Cir. 2008)). A district
court’s decision to deny a reduction in sentence under
§ 3582(c)(2), however, is reviewed for abuse of discretion.
United States v. Young, 555 F.3d 611, 615 (7th Cir. 2009);
Mark Hall, 582 F.3d at 817. A district court “abuses its
discretion when it resolves a matter in a way that no
reasonable jurist would, or when its decision strikes us
as fundamentally wrong, arbitrary, or fanciful.” United
States v. Paul, 542 F.3d 596, 599 (7th Cir. 2008). This is a
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 21
highly deferential standard of review that essentially
requires us to determine whether the process by which
the district court resolved the § 3582(c)(2) motion was
reasonable. Young, 555 F.3d at 615.
A term of imprisonment constitutes a final judgment
that may not be modified except in limited circumstances.
Dillon v. United States, ___ U.S. ___, 130 S. Ct. 2683, 2690,
177 L. Ed. 2d 271 (2010). Section 3582(c)(2) creates “an
exception to the general rule of finality in the case of a
defendant who has been sentenced to a term of impris-
onment based on a sentencing range that has sub-
sequently been lowered” and made retroactive by the
Sentencing Commission. Id. (internal quotation marks
omitted) (quoting 18 U.S.C. § 3582(c)(2)). Section 3582(c)(2)
allows a district court to reduce a sentence if two condi-
tions are met: (1) the original sentence was “based on
a sentencing range that has subsequently been lowered
by the Sentencing Commission,” and (2) “such a
reduction is consistent with applicable policy state-
ments issued by the Sentencing Commission[,]” namely
§ 1B1.10(a). 18 U.S.C. § 3582(c)(2); United States v.
Guyton, 636 F.3d 316, 318 (7th Cir. 2011); USSG
§ 1B1.10(a)(2), p.s. (Nov. 2011). If the “first condition is
not met, a district court lacks subject-matter jurisdiction
to consider the movant’s request for a sentence
reduction under § 3582(c)(2).” United States v. Forman, 553
F.3d 585, 588 (7th Cir. 2009); Lawrence, 535 F.3d at 637. As
to the second condition, a sentence reduction pursuant
to Amendment 706 is not consistent with the Sen-
tencing Commission’s applicable policy statements
if Amendment 706 “does not have the effect of
22 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
lowering the defendant’s applicable guideline range.”
USSG § 1B1.10(a)(2)(B), p.s. (Nov. 2011) (emphasis
added). After determining that a sentence reduction is
consistent with applicable policy statements, § 3582(c)(2)
instructs a district court to consider the § 3553(a) factors
and determine whether, in its discretion, the reduction
authorized by reference to the Sentencing Commission’s
policies is warranted in whole or in part under the par-
ticular circumstances of the case. Dillon, 130 S. Ct. at
2692. Further, the Supreme Court has clarified that
§ 3582(c)(2) “does not authorize a sentencing or
resentencing proceeding. Instead, it provides for the
‘modif[ication of] a term of imprisonment’ by giving
courts the power to ‘reduce’ an otherwise final sentence
in circumstances specified by the [Sentencing] Commis-
sion.” Id. at 2690.
A. Bobby Suggs
We turn first to Bobby’s pro se motion. In denying his
motion for a sentence reduction, the district court con-
cluded that it lacked “statutory authorization and cor-
responding jurisdiction” to reduce his sentence because
his Guideline range had not been lowered by Amend-
ment 706. On appeal, Bobby asserts that he is entitled to
a sentence reduction pursuant to Amendment 706 and
that he should receive a lower sentence pursuant to the
§ 3553(a) factors. Relying on Kimbrough v. United States,
in which the Supreme Court held that district courts
could consider the crack/powder disparity in sentencing
and impose a below-Guidelines sentence on a drug traf-
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 23
ficker dealing in crack cocaine due to the disparity,
Bobby argues that the district court had “complete discre-
tion” to disregard the Guideline range and impose an
appropriate sentence. 552 U.S. 85, 91, 128 S. Ct. 558, 169
L. Ed. 2d 481 (2007). We affirm the denial of relief.
“Subject-matter jurisdiction is ‘the court’s statutory
authority or constitutional power to adjudicate a case.’ ”
Lawrence, 535 F.3d at 636 (quoting Steel Co. v. Citizens for
Better Env’t, 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L. Ed. 2d
210 (1998); citing United States v. Cotton, 535 U.S. 625, 630,
122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002)). “It ‘delineat[es] the
classes of cases . . . falling within a court’s adjudicatory
authority.” Id. (quoting Eberhart v. United States, 546 U.S.
12, 16, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005)). Contrary to
Bobby’s suggestion, “there is no ‘inherent authority’ for a
district court to modify a sentence as it pleases[.]” United
States v. Cunningham, 554 F.3d 703, 708 (7th Cir. 2009).
Pursuant to § 3582(c)(2), Congress has authorized district
courts to modify a sentence in cases where a defendant
“has been sentenced to a term of imprisonment based on
a sentencing range that has subsequently been lowered
by the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2);
Johnson, 571 F.3d at 717; Lawrence, 535 F.3d at 637. When
a case falls within that class, subject-matter jurisdiction
is proper. Lawrence, 535 F.3d at 637. Although § 3582(c)(2)
also limits a “court’s authority to reduce a sentence
by requiring that it consider § 3553(a) and reduce a sen-
tence only if it is consistent with the [Sentencing Com-
mission’s] applicable policy statements[,]” these limitations
only apply once a court has jurisdiction. Id. at 637-
38; United States v. Poole, 550 F.3d 676, 678 n.1 (7th Cir.
24 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
2008). That is to say, where a court reduces a defendant’s
sentence without considering the § 3553(a) factors or
without ensuring that the amendment has the effect of
lowering the defendant’s applicable Guideline range, such
errors are not jurisdictional ones.
In the 2009 addendum to Bobby’s PSR, probation con-
cluded that Bobby’s criminal activity was in excess of
4.5 kilograms of crack cocaine. Specifically, the 2009
addendum noted that the district court had adopted
the findings of Bobby’s PSR, which established that
Bobby was responsible for 17.1 kilograms of crack cocaine.
Under § 2D1.1 of the revised Guidelines, the two-level
reduction of a base offense level does not apply where
the relevant conduct involved more than 4.5 kilograms
of crack cocaine. See Johnson, 571 F.3d at 717. Because
Bobby was responsible for more than 4.5 kilograms of
crack cocaine, his sentence was not “based on” a sen-
tencing range that was subsequently lowered. Accordingly,
the district court did not have the power to adjudicate
Bobby’s motion and lacked subject-matter jurisdiction.
See Lawrence, 535 F.3d at 637.
Bobby next argues that the district court should have
considered the § 3553(a) factors and his post-sentencing
conduct. Section 3582(c)(2) does not allow resentencing
based solely on § 3553(a) factors, however. During a
§ 3582(c)(2) sentence modification proceeding, § 3553(a)
factors are considered only after the district court
has already determined a defendant’s eligibility for a
sentence modification and “cannot serve to transform
the proceedings under § 3582(c)(2) into plenary
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 25
resentencing proceedings.” Dillon, 130 S. Ct. at 2691-92.
Here, the district court had no basis to consider the
§ 3553(a) factors because Bobby was simply not eligible
for a sentence reduction.
B. Aaron Davis
In denying Davis’ § 3582(c)(2) motion, the district court
first concluded that “Davis’ guideline range is not im-
pacted by the amendments, and so he does not qualify
for a sentence reduction.” The district court based its
conclusion on its belief that at Davis’ original sentencing
hearing, it made “a factual finding that 19.8 kilograms
of crack cocaine was attributable to [Davis.]” The crux
of Davis’ argument on appeal is that the district court
was limited to its factual findings at his original sen-
tencing that he was responsible for “at a minimum
1.5 kilograms of crack cocaine,” and that the district court
impermissibly made new findings in the § 3582(c)(2)
proceeding in order to hold him responsible for 19.8
kilograms of crack cocaine. Davis argues that in
denying his § 3582(c)(2) motion, the district court relied
on extraneous statements it made at his original
sentencing hearing regarding the drug quantity attribut-
able to him, and that those extraneous statements
cannot be viewed as findings of fact. According to
Davis, the district court made a specific finding that he
was responsible for 1.5 kilograms of crack cocaine and
while the district court could have made a finding
that Davis was responsible for a different amount,
it “eschewed the need to make any more particular find-
26 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
ing[.]” Davis also contends that at his original sentencing
hearing, the district court did not fully inquire into
the scope of his criminal involvement between 1998,
when he moved to Indianapolis, and 2001.
“For sentencing purposes, a criminal defendant con-
victed of a drug trafficking conspiracy is liable for the
reasonably foreseeable quantity of drugs sold by his or
her co-conspirators.” United States v. Seymour, 519 F.3d
700, 710-11 (7th Cir. 2008). At sentencing, a district court
need only make findings of fact, such as the quantity of
drugs attributable to a defendant, by a preponderance
of the evidence. United States v. Krasinsi, 545 F.3d 546,
551 (7th Cir. 2008). A proposition proved by a prepon-
derance of the evidence is one that has been shown to
be more likely than not. E.g., United States v. Foster, 577
F.3d 813, 815 (7th Cir. 2009). At Davis’ original sentencing,
which he did not appeal, the district court indicated that
it was reasonably foreseeable to Davis, who was a close
associate of Bobby, that more than 1.5 kilograms of crack
cocaine were involved in the conspiracy, and more
likely than not 19.8 kilograms of crack cocaine
were reasonably foreseeable to him. Contrary to Davis’
arguments, these were not extraneous statements;
rather, they comprised the district court’s finding, by a pre-
ponderance of the evidence, that Davis was responsible
for the reasonably foreseeable quantity of drugs, 19.8
kilograms of crack cocaine, that was involved in this
particular conspiracy. Because the district court had
already determined that Davis was responsible for 19.8
kilograms of crack cocaine, Amendment 706 would not
serve to reduce his sentence and his § 3582(c)(2) motion
was properly denied.
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 27
Additionally, contrary to Davis’ contentions, the
district court was required to determine the amount
of crack cocaine attributable to Davis in order to
adjudicate his § 3582(c)(2) motion. See United States v.
Dewayne Hall, 600 F.3d 872, 877 (7th Cir. 2010) (herein-
after “Dewayne Hall”). Nothing prevents a district court
from making new findings of fact when ruling on a
§ 3582(c)(2) motion, so long as those findings are not
inconsistent with those made at the original sentencing.
United States v. Duncan, 639 F.3d 764, 767-68 (7th Cir. 2011)
(quoting United States v. Woods, 581 F.3d 531, 538 (7th Cir.
2009) and Dewayne Hall, 600 F.3d at 876). Indeed, new
findings are often necessary where, as here, retroactive
amendments have altered the relevant drug-quantity
thresholds for determining a defendant’s base offense
level. Dewayne Hall, 600 F.3d at 876 (citing Mark Hall, 582
F.3d at 819). In adjudicating a § 3582(c)(2) motion, a
district court may consider the record as a whole, including
the defendant’s motions, the government’s responses,
and any addenda to the PSRs explaining the scope of a
drug trafficking conspiracy before reaching a conclusion
on the drug quantity attributable to a defendant. Woods,
581 F.3d at 539; see also Dewayne Hall, 600 F.3d at 876.
Here, the district court made new findings of fact
by relying on its earlier statements at Davis’ original
sentencing hearing and the figures presented in his PSR,
which the district court had previously adopted. The
district court also considered a 2008 addendum to the
PSR, which stated that the court had previously made
a finding of fact that Davis was responsible for 19.8 kilo-
grams of crack cocaine. The evidence in the PSR estab-
28 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
lished that Davis was one of Bobby’s top lieutenants
who distributed the crack cocaine Bobby cooked to
other CCA street gang members, the FBI made several
controlled purchases of crack cocaine from Davis in
1998, Davis sold crack cocaine to Carter, and the FBI
recovered crack cocaine from CCA street gang
members over 20 times. Relying on statements from
Unzueta as to the amount of powder cocaine he
delivered to Bobby, which was then cooked into crack
cocaine, the PSR concluded that Davis could be held
responsible for at least 19.8 kilograms of crack cocaine.
In short, there was more than sufficient evidence in the
PSR from which the district court could conclude that
Davis was responsible for 19.8 kilograms of crack cocaine.
We find that the district court did not abuse its discre-
tion in denying Davis’ motion.
We also find no merit to Davis’ argument that the
district court did not fully inquire into the scope of his
involvement between 1998 and 2001. We have long held
that a district court may rely on factual information
contained in a PSR “so long as it bears sufficient indicia
of reliability to support its probable accuracy.”
United States v. Salinas, 365 F.3d 582, 587 (7th Cir. 2004);
United States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010).
Generally, a defendant then bears the burden of
showing that the PSR is not accurate or is unreliable.
United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007).
A defendant does not satisfy that burden merely by
denying the facts in the PSR; rather, a defendant
must produce some evidence that calls into question
the reliability of the alleged facts. Salinas, 365 F.3d at
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 29
587; Turner, 604 F.3d at 385. Only after a defendant’s
objection casts doubt as to the reliability of the informa-
tion in the PSR does the government then have the
burden of demonstrating the accuracy of the information.
United States v. Heckel, 570 F.3d 791, 795-96 (7th Cir.
2009). Although Davis concedes that he did not present
any evidence at his original sentencing limiting his role
in the conspiracy to the early years of the scheme, he
contends that the evidence presented by the govern-
ment did not explain his involvement in the conspiracy
between 1998 and 2001.
Davis’ contentions fail to cast doubt on the PSR’s recom-
mendation that he continued to be a part of the
conspiracy until 2001 and is therefore responsible for
19.8 kilograms of crack cocaine. In order to withdraw
from a conspiracy, a criminal defendant must take
some affirmative act of withdrawal, such as confessing
to the authorities or communicating his withdrawal to
his co-conspirators. United States v. Morales, 655 F.3d
608, 640 (7th Cir. 2011). “ ‘Simply ceasing to participate
even for extended periods of time is not sufficient to
show withdrawal.’ ” United States v. Julian, 427 F.3d 471,
483 (7th Cir. 2005) (quoting United States v. Hall, 212
F.3d 1016, 1023 (7th Cir. 2000)). According to the PSR,
Carter informed investigators that even after Davis
moved to Indianapolis, he would travel between Gary
and Indianapolis and Carter would purchase crack
cocaine from Davis. Furthermore, the record does not
contain any evidence that Davis affirmatively withdrew
his membership at any point in time after 1998 by
reporting himself to authorities or by communicating his
30 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
withdrawal to CCA street gang members. Rather, the
February 2001 letter from Carson demonstrates that he
continued to associate with CCA members until at least
February 2001. Finally, contrary to Davis’ argument, the
district court did consider the extent of his involvement
in the conspiracy between 1998 and 2001. Although
Davis objected to the PSR’s findings that he was
involved in the conspiracy after 1998, as outlined in the
2003 addendum to the PSR, the district court declined
to adopt his position and instead adopted the findings
of the government and probation that he continued to
be involved with the conspiracy until 2001.
Alternatively, the district court concluded that even
if Davis did qualify for a two-level reduction in his Guide-
line range, it would decline to reduce Davis’ sentence
because the sentence appropriately reflected the serious-
ness of the offense and the need to protect the public,
and because it was “particularly appropriate to
consider the need to avoid sentence disparities among
defendants with similar records who have been found
guilty of similar conduct[.]” Davis’ final argument on
appeal is that the court’s refusal to exercise its discretion
to grant him a sentence reduction rests upon its
erroneous factual findings, and denying him a sentence
reduction actually creates a sentencing disparity
because he will be punished more harshly than other
defendants convicted of similar conduct. Once a
district court concludes that a defendant is eligible for a
reduction in sentence, the district court must then “deter-
mine the extent of that reduction, if any, by considering
the factors listed in 18 U.S.C. § 3553(a), the [defendant’s]
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 31
conduct while imprisoned, and the risk his early release
would pose to public safety.” United States v. Marion, 590
F.3d 475, 477 (7th Cir. 2009) (internal quotation marks
omitted) (quoting United States v. Johnson, 580 F.3d 67,
570 (7th Cir. 2009)). In ruling on a motion to reduce, a
district court is required to supply the reasons for its
decision and its order need only contain a minimal expla-
nation as to how it exercised its discretion. Id. at 477-78.
Importantly, a district court “need not provide a de-
tailed, written explanation analyzing every § 3553(a)
factor.” Id. at 477. Here, the district court considered
some of the § 3553(a) factors and provided a straight-
forward explanation as to why it would deny Davis’
motion on this alternative basis. We find that this ex-
planation was sufficient to withstand scrutiny. Addition-
ally, Davis’ contention that the denial of a sentence re-
duction results in a sentencing disparity is meritless, as
his coconspirators were all sentenced to similar, if not
longer, terms of imprisonment.
C. Seantai, Price, Dilworth, and Davison
We turn next to Seantai, Price, Dilworth, and Davison,
who are represented by the same counsel on appeal. They
each argue that the district court erroneously denied
their § 3582(c)(2) motions for sentence reductions by
making new factual findings that they were each respon-
sible for distributing more than 4.5 kilograms of crack
cocaine. They also contend that because they went to
trial, as opposed to pleading guilty, the quantity of crack
cocaine and reliability of evidence establishing those
32 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
quantities remained at issue and the district court
therefore had a duty to inquire into the scope of criminal
activity that they each agreed to undertake. We conclude
that the district court did not abuse its discretion in
finding that Seantai, Price, Dilworth, and Davison were
each responsible for more than 4.5 kilograms of crack
cocaine.
1. Seantai Suggs
In denying Seantai’s motion for a sentence reduction,
the district court concluded that due to the quantity of
crack cocaine attributable to Seantai, the amended Guide-
lines did not impact his sentence and therefore he
did not qualify for a sentence reduction. The district court
based its conclusion on statements it made at Seantai’s
original sentencing hearing rejecting Seantai’s objections
to the drug quantity findings in his original PSR and
adopting the government’s and probation’s positions.
Therefore, according to the district court, it had already
made an explicit finding attributing over 16 kilograms
of crack cocaine to Seantai. Alternatively, the district
court concluded that even if it had not made such
a finding at Seantai’s original sentencing hearing, it
“would not hesitate to make a new finding that [Seantai]
is responsible for far in excess of 4.5 kilograms of
crack cocaine as a foreseeable quantity distributed by
his conspiracy.”
On appeal, Seantai argues that the district court errone-
ously denied his motion for a sentence reduction
because at his original sentencing it only found that he
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 33
“should be held responsible for far in excess of 1.5 kilo-
grams of crack cocaine[,]” and it did not find that he
was responsible for 16.91 kilograms of crack cocaine.
Therefore, Seantai argues, any such conclusion reached
by the district court in denying his motion for a
sentence reduction was a new factual finding.8 Seantai
also argues that the district court’s conclusion that
Seantai was a primary player in the conspiracy was
based on highly contested facts, and its statement
that Seantai did not present any evidence to refute the
government’s assertions is misplaced because it is the
government’s burden to prove quantity. Finally, Seantai
contends that the court’s denial of his motion was
based entirely on foreseeability, and the district court
failed to assess the scope of his jointly undertaken activity.
As discussed above, assuming the district court did not
make a factual finding as to quantity at Seantai’s original
sentencing hearing, the court was required to make such
a finding in adjudicating his § 3582(c)(2) motion.
Dewayne Hall, 600 F.3d at 877. A new factual finding on
a § 3582(c)(2) motion is appropriate so long as it is not
inconsistent with the district court’s findings at the
original sentencing hearing. Woods, 581 F.3d at 538. As
an initial matter, Seantai concedes that at his original
8
Because the sentencing hearing transcript of Seantai’s sen-
tencing hearing has not been made part of the record, nor
has Seantai included a copy of the relevant pages of the sen-
tencing hearing transcript in his appendix, we are unable to
evaluate the district court’s statements at Seantai’s original
sentencing hearing. We may review, however, whether the
district court’s new factual finding was appropriate.
34 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
sentencing hearing the district court found that he
should be held “responsible for far in excess of 1.5 kilo-
grams of crack cocaine.” Had the original sentencing
court found that Seantai was responsible for exactly
1.5 kilograms of crack cocaine, this would be a different
case, but a finding that he was responsible for over
4.5 kilograms of crack cocaine is not inconsistent with
the district court’s finding at his original sentencing
hearing. Woods, 581 F.3d at 539; see also United States v.
Moore, 582 F.3d 641, 646 (6th Cir. 2009).
In making its new factual finding as to the quantity
of drugs attributable to Seantai, the district court relied
on evidence from Seantai’s trial, and summarized in his
PSR, such as the testimony from Unzueta that he
supplied Bobby with kilogram quantities of powder
cocaine. Seantai’s PSR, which the district court adopted
despite his objections, made it clear that he and Davis
were Bobby’s top lieutenants who distributed the crack
cocaine Bobby cooked to other CCA street gang members,
that the FBI made a series of controlled purchases of
crack cocaine from him and Davis in 1998, and that the
FBI recovered crack cocaine from CCA street gang mem-
bers on over 20 occasions. On the basis of this informa-
tion, the PSR concluded that Seantai was responsible
for 16.91 kilograms of crack cocaine, far in excess of the
4.5 kilogram threshold in § 2D1.1 for a sentence reduc-
tion. There was substantial evidence in Seantai’s
PSR from which the district court could find that
Seantai was responsible for 16.91 kilograms of crack
cocaine.
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 35
Seantai’s arguments that the information in the PSR was
based on highly contested facts and that the government
bears the burden of establishing drug quantities are
unavailing. As we previously noted, it is well-established
that the district court may rely on factual information
contained in a PSR “so long as it bears sufficient indicia
of reliability to support its probable accuracy.” Salinas, 365
F.3d at 587. Even as to controverted facts, a court’s refer-
ence to the PSR “ ‘constitutes sufficient findings . . . when
we are assured that the district court made a decision of
design, rather than of convenience, to adopt the PSR.’ ”
Heckel, 570 F.3d at 796 (quoting United States v. Burke,
148 F.3d 832, 836 (7th Cir. 1998)). Seantai then bears the
burden of showing that the PSR is not accurate or is
unreliable, Artley, 489 F.3d at 821, but he has proffered
no evidence in the § 3582(c)(2) proceeding to call into
question the facts contained in the PSR. A bare denial of
the information contained in the PSR is simply not suffi-
cient to challenge the PSR’s accuracy or reliability. Turner,
604 F.3d at 385. Accordingly, the district court acted well
within its discretion when it relied upon the findings
contained in the PSR.
Finally, while Seantai is correct that the district court
did not explicitly mention the scope of his involvement
in the conspiracy, the district court did adopt the
factual findings in the PSR which contained more than
enough evidence from which to make such a finding.
“The reference to the findings and rationale in the
presentence report allows us, as a reviewing court, to
evaluate the district court’s decision, and that is all that
is required.” United States v. Brimley, 148 F.3d 819, 822
36 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
(7th Cir. 1998) (quoting United States v. Taylor, 135 F.3d 478,
483 (7th Cir. 1998)); see also United States v. Brumfield, 301
F.3d 724, 735 (7th Cir. 2002) (“[I]t is permissible for a
district court to discharge its obligation to make factual
findings by adopting the contents and analysis of the
PSR.”) (citing United States v. Parolin, 239 F.3d 922, 925 (7th
Cir. 2001) and Taylor, 135 F.3d at 482). The Guidelines
instruct that a defendant involved in jointly undertaken
criminal activity may be held accountable for “all rea-
sonably foreseeable acts and omissions of others in fur-
therance of the jointly undertaken criminal activity.”
USSG § 1B1.3(a)(1)(B) (Nov. 2011); see also Turner, 604
F.3d at 385 (quoting United States v. Soto-Piedra, 525 F.3d
527, 531 (7th Cir. 2008)). “Thus, in a drug conspiracy,
‘each conspirator is responsible not only for drug quanti-
ties directly attributable to him but also for amounts
involved in transactions by coconspirators that were
reasonably foreseeable to him.’ ” Turner, 604 F.3d 381
(quoting United States v. Acosta, 534 F.3d 574, 585 (7th
Cir. 2008)); see also Seymour, 519 F.3d at 710-11. “Reasonable
foreseeability refers to the scope of the agreement that
[a defendant] entered into when he joined the
conspiracy, not merely to the drugs he may have
known about.” United States v. Flores, 5 F.3d 1070, 1083
(7th Cir. 1993). Furthermore, reasonable foreseeability
does not require a showing “that the defendant was
involved in or even had direct knowledge of any
particular transaction.” Seymour, 519 F.3d at 711.
Here, more than 4.5 kilograms of crack cocaine were
reasonably foreseeable to Seantai. As detailed in his PSR,
Seantai played a key role in the conspiracy, acting as a
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 37
top lieutenant alongside Davis, who distributed the
crack cocaine Bobby cooked to street-level dealers.
Through this role, Seantai was aware of the quantities
of drugs Bobby was receiving from Unzueta and dis-
tributing in the form of crack cocaine. Considering
his substantial involvement in the conspiracy through-
out its life, it was well within the district court’s discre-
tion to find that Seantai was responsible for more
than 4.5 kilograms of crack cocaine.
2. Terraun Price
In denying Price’s motion for a sentence reduction, the
district court concluded that because the evidence in
the record established that he was responsible for more
than 4.5 kilograms of crack cocaine, he was not eligible
for a sentence reduction. On appeal, Price argues that
“the district court did not carefully consider the facts
relating to the quantity of drugs attributable to [him] and
therefore his eligibility for reduction.” According to
Price, the quantity of drugs for which he is directly re-
sponsible does not add up to 4.5 kilograms of crack
cocaine. Like Seantai, Price also argues that the district
court did not inquire into the scope of his jointly under-
taken criminal activity.
Price’s arguments are unpersuasive because the
district court properly considered the record as whole,
Price’s arguments and the government’s arguments, as
well as the original PSR and the 2008 addendum to the
PSR, which explained Price’s role in the conspiracy,
before finding that Price was responsible for more than
4.5 kilograms of crack cocaine. Woods, 581 F.3d at 538.
38 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
The PSR, which the district court adopted, established
that he was involved in the conspiracy from 1995 to
2001, and during this time he participated in a number
of roles. For instance, he allowed Bobby to cook powder
cocaine in his house, he kept Bobby apprised of police
presence and gang activity, he relayed messages from
Bobby to the street-level dealers, and he distributed
crack cocaine from Bobby to the street-level dealers.
Additionally, the PSR detailed numerous witness
accounts about Price’s involvement in the conspiracy
and his sales of crack cocaine. While the precise quantity
of drugs that Price himself distributed may not add up
to 4.5 kilograms of crack cocaine, this fact is not disposi-
tive because defendants “convicted of a drug trafficking
conspiracy [are] liable for the reasonably foreseeable
quantity of drugs sold by [their] co-conspirators.” Seymour,
519 F.3d at 710-11. Here, we have previously concluded
that the CCA street gang was responsible for distributing
at least 16 kilograms of crack cocaine throughout the
course of the conspiracy’s life. Dewayne Hall, 600 F.3d at
876. Price was not a regular street-level dealer in this
conspiracy. Rather, he was a close confidant of Bobby
and acted as a messenger between Bobby and the street-
level dealers. As noted by the district court, Price’s
role allowed him to become familiar with the number
of dealers and types and quantities of drugs they were
distributing. There was ample evidence from which
the district court could conclude that Price was
accountable for at least 4.5 kilograms of crack cocaine.
Price’s argument that the district court failed to discuss
the scope of his criminal activity is unavailing. While
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 39
the district court did not explicitly mention the scope
of Price’s involvement in the conspiracy, it did adopt the
factual findings and Guideline application in his PSR.
Again, Price was involved in the conspiracy at a high
level, and in his many roles he was well aware of the
quantities of crack cocaine Bobby was cooking and dis-
tributing. The district court acted within its discretion
in finding that it was reasonably foreseeable to Price
that the conspiracy was distributing in excess of
4.5 kilograms of crack cocaine.
3. Terence Dilworth
In denying Dilworth’s motion for a sentence reduction,
the district court concluded that it was foreseeable to
Dilworth “that he was participating in a conspiracy that
was distributing far in excess of 4.5 kilograms of crack
cocaine,” and therefore Amendment 706 did not impact
his sentence. The district court reached this conclusion
after reviewing the evidence in the record, including
Dilworth’s PSR. On appeal, Dilworth argues that at his
original sentencing hearing, the district court did not
make a factual finding that he was responsible for
more than 4.5 kilograms of crack cocaine, despite its “off-
handed remark that [] [he] is ‘responsible for many more
kilos of crack cocaine than 1.5 [kilograms].’ ” Accordingly,
Dilworth contends that because the district court relied
on new factual findings, it had a duty to inquire into
the scope of the criminal activity for which he was re-
sponsible, but that it failed to do so. Dilworth also argues
that in denying his motion the district court relied on
40 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
contested and unreliable evidence, such as hearsay testi-
mony of witnesses, which he objected to at his original
sentencing hearing.
In ruling upon Dilworth’s § 3582(c)(2) motion, it was
entirely appropriate for the district to make new findings
of fact as to the quantity of drugs attributable to
Dilworth, so long as those findings are consistent with the
findings from the original sentencing hearing. Duncan, 639
F.3d at 767-68. The district court’s finding that Dilworth
was responsible for more than 4.5 kilograms of crack
cocaine is consistent with its earlier finding that Dilworth
was “ ‘responsible for many more kilos of crack cocaine
than 1.5 [kilograms].’ ” See Woods, 581 F.3d at 539. The
district court reached its drug quantity finding only after
considering all the evidence in the record, including the
PSR, which the court had previously adopted over
Dilworth’s objections. Although Dilworth contends that
the evidence in the PSR was contested and unreliable, he
had the burden of establishing the unreliability of the
evidence. Artley, 489 F.3d at 821. Yet, on the record before
us, Dilworth has not proffered any evidence in the
§ 3582(c)(2) proceedings to contest the reliability of the
information contained in the PSR. As we have previously
noted, a district court may make factual findings by
adopting the PSR even as to contested matters. Heckel,
570 F.3d at 796. Dilworth’s PSR emphasized that he
was more than a street-level dealer because he received
large quantities of crack cocaine directly from Bobby to
distribute to street-level dealers on “the Hill.” The PSR
also noted that Dilworth had been responsible for
bringing customers to “the Hill” in the early 1990s, and
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 41
that Dilworth himself had been selling drugs on “the
Hill” since at least 1993 or 1994. Most importantly,
Dilworth and a group of four or five other CCA street
gang members were observed selling 3.5 grams of crack
cocaine per day on “the Hill” over a seven-month period
in 2000. That is approximately 3.675 kilograms of crack
cocaine in just seven months. Taking into account that
Dilworth was a member of the conspiracy for a number
of years, had been selling on “the Hill” since 1993 or
1994, and that he was more than a street-level dealer,
there was more than ample evidence in the PSR to
support the district court’s finding that it was foreseeable
to him that he was participating in a conspiracy that was
distributing more than 4.5 kilograms of crack cocaine.
Accordingly, it was not an abuse of discretion for the
district court to deny his motion.
Finally, this Court must reject Dilworth’s argument
that the testimony in the PSR was contested and unreli-
able because it contained the hearsay testimony of wit-
nesses. At sentencing a district court may rely on a PSR
containing hearsay, so long as those statements are
reliable. United States v. Isom, 635 F.3d 904, 908 (7th Cir.
2011) (“At sentencing, courts may rely on presentence
reports containing even double-hearsay, i.e., statements
by coconspirators to investigators, so long as those state-
ments are reliable.”). It was Dilworth’s burden to show
the inaccuracy or unreliability of facts in the PSR, and
Dilworth has not presented any evidence to cast doubt
on the PSR. Artley, 489 F.3d at 821 (affirming sentence
as based upon sufficient evidence, even though state-
ments establishing drug quantity amounts in the PSR
42 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
were hearsay). Moreover, the statements in the PSR were
internally consistent as to Dilworth’s participation in
the conspiracy. Accordingly, the district court acted
within its discretion in choosing to rely upon such state-
ments.
4. William Davison
In denying Davison’s motion for a sentence reduction,
the district court concluded that Davison was not
eligible for a reduced sentence because he was responsible
for more than 4.5 kilograms of crack cocaine. In deter-
mining the quantity that was reasonably foreseeable to
Davison, the district court relied on his original PSR, and
primarily the portion of the PSR containing statements
from a confidential informant that “for a seven-month
period in 2000, [] Davison, along with four or five other
members of the [CCA street] gang, took turns selling
crack cocaine at a location known as ‘the Hill,’ and
that each was selling approximately an ‘eight-ball’ (1/8
ounce, or approximately 3.5 grams) a day.” Notably, the
district court reached this conclusion despite probation’s
recommendation in a 2008 addendum to the PSR that
Amendment 706 applied to Davison. On appeal, Davison
argues that the district court’s finding that he was re-
sponsible for in excess of 4.5 kilograms of crack cocaine
is erroneous. Davison argues that the district court failed
to discuss the actual quantity of drugs for which he
was responsible, and that he should not be treated like
the other conspirators. According to Davison, even if
he were held “responsible for sales of 3.5 grams per day,
Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al. 43
a figure discussed in his PSR, for the entire three
years he was alleged to be selling drugs on ‘the [H]ill,’ the
total amount of drugs distributed would approximate
3.7 kilograms.” Therefore, Davison argues, his conduct
does not reach the 4.5 kilograms threshold.
Here, the district court properly considered the record
as whole, the government’s arguments and Davison’s
arguments, as well as the original PSR and the 2008
addendum to the PSR, before finding that Davison was
responsible for more than 4.5 kilograms of crack cocaine.
Woods, 581 F.3d at 538. The PSR, which the district court
adopted, noted that Davison had been a member of the
conspiracy as early as 1997, and that he sold crack cocaine
in the Concord area from 1997 until 2000. The PSR also
described Davison’s role as a shooter for the CCA street
gang and his involvement in two murders. Most impor-
tantly, Davison and a group of four or five other CCA
street gang members were observed selling 3.5 grams of
crack cocaine on “the Hill” per day over a seven-month
period in 2000. In total, this group of individuals sold
about 3.675 kilograms of crack cocaine in just seven
months. Considering that Davison was a member of
the conspiracy for a number of years, there was suf-
ficient evidence in the PSR to support the district
court’s finding that it was foreseeable to him that he
was participating in a conspiracy that was distributing
more than 4.5 kilograms of crack cocaine. While the 2008
addendum to the PSR recommended that Davison
did qualify for a two-level reduction in his base offense
level, we note that the decision of whether or not to
grant a sentence reduction is entrusted to the discretion
44 Nos. 11-1313, 11-1323, 11-2057, 11-2061, et al.
of the district court, and it is the judge’s perspective that
is most important. Young, 555 F.3d at 614.
Finally, Davison’s contention that he should only be
held responsible for the drugs he was selling on “the
Hill” does not help him as he is responsible not just for
the amounts that he was personally selling, but also “for
the reasonably foreseeable quantity of drugs sold by his . . .
co-conspirators.” Seymour, 519 F.3d at 710-11. The mini-
mum amount of crack cocaine that would have
been reasonably foreseeable to him from the activities
of his four conspirators on “the Hill” over a three-year
period would have exceeded 4.5 kilograms of crack
cocaine. Accordingly, the district court did not abuse
its discretion by finding that Davison was responsible
for 4.5 kilograms of crack cocaine over the course of his
three-year involvement with the conspiracy.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s denial of the defendants’ § 3582(c)(2) motions.
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