United States v. Emilio Rodriguez ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10233
Plaintiff-Appellant,
D.C. No.
v. 2:11-cr-00135-
JAM-1
EMILIO HUARACHA RODRIGUEZ,
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted September 7, 2018
San Francisco, California
Filed April 24, 2019
Before: Marsha S. Berzon and Michelle T. Friedland,
Circuit Judges, and Kathleen Cardone, * District Judge.
Opinion by Judge Berzon;
Dissent by Judge Cardone
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2 UNITED STATES V. RODRIGUEZ
SUMMARY **
Criminal Law
The panel reversed the district court’s order granting
Emilio Huaracha Rodriguez’s motion pursuant to 18 U.S.C.
§ 3582(c)(2) for reduction of sentence in light of Sentencing
Guidelines Amendment 782, and remanded for
supplemental drug-quantity findings.
The panel clarified that, under United States v. Mercado-
Moreno, 869 F.3d 942 (9th Cir. 2017), drug quantities in an
adopted presentence investigation report, without an explicit
and specific drug quantity finding by the original sentencing
judge, are not binding in § 3582(c)(2) proceedings. The
panel held that because the judge at Rodriguez’s initial
sentencing did not make a specific finding of drug quantity,
and Rodriguez did not admit to a specific drug quantity
beyond the quantity necessary to determine the appropriate
Guidelines range, there were no binding drug quantity
findings or admissions that bound the district court at the
later § 3582(c)(2) proceedings.
The panel held that if, as here, the district court at the
original sentencing did not make a specific drug quantity
finding, the proper course is for the district court to engage
in supplemental fact-finding to determine whether the
defendant is eligible for a sentence reduction under
§ 3582(c)(2). The panel therefore remanded to the district
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. RODRIGUEZ 3
court for supplemental findings of drug quantity and, if
appropriate, resentencing.
District Judge Cardone dissented because she believes
the district court made a sufficiently specific finding as to
drug quantity during Rodriguez’s original sentencing
hearing that renders him ineligible for a reduced sentence
under § 3582(c)(2).
COUNSEL
Jason Hitt (argued), Assistant United States Attorney; Camil
A. Skipper, Appellate Chief; McGregor Scott, United States
Attorney; United States Attorney's Office, Sacramento,
California; for Plaintiff-Appellant.
John P. Balazs (argued), Sacramento, California, for
Defendant-Appellee.
4 UNITED STATES V. RODRIGUEZ
OPINION
BERZON, Circuit Judge:
Our central question is whether uncontested drug
quantities in a court-adopted presentence investigation
report (“PSR”) constitute specific drug quantity findings that
bind district courts in subsequent 18 U.S.C. § 3582(c)(2)
sentence reduction proceedings. We clarify that, without an
explicit and specific drug quantity finding by the original
sentencing judge, drug quantities in an adopted PSR are not
binding in § 3582(c)(2) proceedings.
We therefore reverse and remand to the district court for
supplemental findings of drug quantity and, if appropriate,
resentencing.
I
A
We begin with the statutory framework for deciding
sentence reduction motions. Ordinarily, a federal court “may
not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). Congress has, however,
provided a narrow exception to this rule of finality. A court
may modify a defendant’s term of imprisonment if the
defendant was “sentenced . . . based on a sentencing range
that has subsequently been lowered” pursuant to a
retroactive amendment to the U.S. Sentencing Guidelines
(“Guidelines”). Id. The purpose of this limited exception is
to provide the defendant with “the benefit of later enacted
adjustments to the judgments reflected in the [Sentencing]
Guidelines” without engaging in plenary resentencing
proceedings. United States v. Mercado-Moreno, 869 F.3d
UNITED STATES V. RODRIGUEZ 5
942, 948 (9th Cir. 2017) (alteration in original) (quoting
Dillon v. United States, 560 U.S. 817, 828 (2010)).
Section 3582(c)(2) sets forth a two-step inquiry for
determining whether a defendant is entitled to sentence
reduction. At the first step, the reviewing district court
decides eligibility by determining whether a reduction is
consistent with U.S. Sentencing Guidelines Manual
§ 1B1.10, the policy statement that implements
§ 3582(c)(2). Dillon, 560 U.S. at 826; see also 18 U.S.C.
§ 3582(c)(2). Section 1B1.10 permits a reduction if, but only
if, the amendment has the “effect of lowering the defendant’s
applicable [G]uideline[s] range.” U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 1B1.10(a)(2)(B). A court
determines whether the retroactive amendment lowered the
defendant’s Guidelines range by calculating the “amended
[G]uideline[s] range that would have been applicable to the
defendant if the [relevant amendment] to the [G]uidelines
. . . had been in effect at the time the defendant was
sentenced.” Id. § 1B1.10(b)(1). Only “the relevant
amendment for the ‘corresponding guideline provisions . . .
applied when the defendant was sentenced’” may be
considered in the first step of the analysis, and the court
“must ‘leave all other guideline application decisions
unaffected.’” Mercado-Moreno, 869 F.3d at 949 (quoting
U.S.S.G. § 1B1.10(b)(1)).
A district court is generally prohibited from reducing a
sentence if the reduction would place the defendant’s term
of imprisonment below the lower end of the amended
Guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A). The only
exception is when the defendant’s original term of
imprisonment is below the Guidelines range because he or
she received a reduction for substantially assisting
6 UNITED STATES V. RODRIGUEZ
authorities and the revised term is comparably below the
amended Guidelines range. See id. at § 1B1.10(b)(2)(B). 1
At the second step, the court must consider all applicable
18 U.S.C. § 3553(a) factors and determine whether, in its
discretion, “the authorized reduction is warranted, either in
whole or in part.” Dillon, 560 U.S. at 826; see also 18 U.S.C.
§ 3582(c)(2). 2 But the court’s consideration of the § 3553(a)
factors may not “serve to transform the proceedings under
§ 3582(c)(2) into plenary resentencing proceedings.” Dillon,
560 U.S. at 827.
B
The Guidelines use a drug quantity table, based on drug
type and weight, to establish the base offense levels for drug-
related offenses, with a maximum of level 38. See U.S.S.G.
§ 2D1.1(c). Amendment 782, adopted by the U.S.
Sentencing Commission (“Commission”) in 2014, modified
the drug quantity table by reducing the base offense level for
most drugs and quantities by two levels. U.S.S.G. supp. app.
C. amend. 782 (Nov. 1, 2014). Shortly thereafter, the
Commission made Amendment 782 retroactive for
1
U.S.S.G. § 1B1.10(b)(2) is being challenged in a number of
pending cases, see, e.g., United States v. Hernandez-Martinez, No. 15-
30309, et al. (9th Cir. Mar. 7, 2019), but is not challenged here.
2
Section 3553(a)’s sentencing factors are “the nature and
circumstances of the offense and the history and characteristics of the
defendant”; the seriousness of the offense; respect for the law; just
punishment; the values of deterrence; protection of the public; the
opportunity for educational or vocational training; medical care or other
treatment; the kinds of sentences available; the sentencing range;
Guidelines policy statements; the avoidance of unwarranted sentence
disparities; and the need for restitution to victims.
UNITED STATES V. RODRIGUEZ 7
defendants, like Rodriguez, who had been sentenced before
the change to the Guidelines. U.S.S.G. supp. app. C amend.
788 (Nov. 1, 2014). Pursuant to Amendment 782, the
quantity of actual methamphetamine that triggers the
maximum base offense level of 38 moved from 1.5
kilograms to 4.5 kilograms. See U.S.S.G. § 2D1.1(a)(5),
(c)(1). 3
II
A
In 2011, the California Highway Patrol conducted a
traffic stop of Emilio Huaracha Rodriguez, a suspected drug
trafficker, in Sacramento County. A drug detection dog
alerted to Rodriguez’s vehicle, and a search revealed 11
pounds (roughly 4.9 kilograms or 4,989 grams) of
methamphetamine. After a search of Rodriguez’s vehicle,
law enforcement officers obtained a search warrant for his
apartment. There, the officers found an additional quantity
of methamphetamine and various types of drug
paraphernalia. Rodriguez was charged with one count of
possession with intent to distribute over 500 grams of
methamphetamine mixture or substance, in violation of 21
U.S.C. § 841(a)(1).
3
For certain types of drugs, such as methamphetamine, the drug
quantity table permits a finding of either the entire weight of the mixture
or substance containing the drug or the actual weight of the drug itself
contained in a mixture or substance. See U.S.S.G. § 2D1.1(c) notes to
drug quantity table (B). The sentencing judge is required to use
whichever quantity corresponds to the higher offense level. Id. At the
time of Rodriguez’s sentencing, base offense level 38 was triggered by a
finding of either: (1) 15 kilograms or more of methamphetamine
mixture; or (2) 1.5 kilograms or more of actual methamphetamine. See
U.S.S.G. § 2D1.1(c)(1) (2012).
8 UNITED STATES V. RODRIGUEZ
In January 2012, Rodriguez pleaded guilty pursuant to a
written plea agreement. As the factual basis for his guilty
plea, Rodriguez admitted to “knowingly possess[ing] over
500 grams of a mixture or substance that contained a
detectable amount of methamphetamine . . . with the intent
to deliver it to another person” and further stipulated to the
maximum base offense level of 38. The factual basis also
specified that law enforcement seized 11 pounds of
methamphetamine from Rodriguez’s vehicle and that the
methamphetamine “was laboratory tested and found to
contain over 1,500 grams of actual methamphetamine.” At
his plea colloquy, Rodriguez confirmed that “each and every
fact” in the factual basis was “true and correct.”
The PSR prepared for Rodriguez’s sentencing stated that
he “possessed approximately 4.8 kilograms of
methamphetamine (actual) in his vehicle” and “186 grams of
a mixture of methamphetamine at his residence.” 4 Because
the amount of methamphetamine mixture in his residence
was a relatively small quantity, the PSR disregarded it for
purposes of calculating his base offense level. On the basis
of the quantity of methamphetamine in his vehicle alone,
which “involved 1.5 kilograms or more of
methamphetamine (actual),” the PSR recommended the
highest base offense level for drug-related offenses, level 38.
The PSR further determined that Rodriguez had a Category
II criminal history, see U.S.S.G. § 4A1.1, and recommended
a three-level reduction for accepting responsibility and
cooperating with authorities. The PSR calculations yielded a
4
The Guidelines instruct that a pound is converted to 0.4536
kilograms or 453.6 grams. See U.S.S.G. § 2D1.1 cmt. n.8(D). Therefore,
the PSR incorrectly converts 11 pounds into 4.8 kilograms, and the
correct conversion is 4.9 kilograms.
UNITED STATES V. RODRIGUEZ 9
total offense level of 35 and a Guidelines range of 188 to 235
months imprisonment.
Rodriguez’s sole objection to the PSR, lodged before
sentencing, was that the PSR overstated his criminal history.
Neither Rodriguez nor the government contested the PSR’s
findings regarding the quantity of methamphetamine
attributable to Rodriguez.
At sentencing, the judge concluded that the PSR did
overstate Rodriguez’s criminal history and so departed
slightly from the recommended Guidelines range, imposing
a sentence commensurate with a Category I criminal history.
See U.S.S.G. § 4A1.3(b). Aside from that slight departure,
the sentencing judge “agree[d] with the justifications set
forth in the [PSR].” 5 Rodriguez was sentenced to 168
months imprisonment.
B
In May 2016, Rodriguez filed a pro se § 3582(c)(2)
sentence reduction motion. The motion was assigned to his
original sentencing judge. The following year, with the
assistance of later-appointed counsel, Rodriguez filed an
amended motion for sentence reduction. Rodriguez seeks to
reduce his base offense level from 38 to 36, the level
corresponding to 1.5 kilograms of methamphetamine under
Amendment 782, which after the three-level reduction from
5
It is unclear from the district court’s oral statement whether it
adopted the PSR in its entirety or whether it just agreed with its
“justifications.” We note, however, that the sealed Statement of Reasons,
signed by the sentencing judge, has a checked box for “The court adopts
the presentence investigation report without change.”
10 UNITED STATES V. RODRIGUEZ
original sentencing would result in a total offense level of
33.
At Rodriguez’s sentence reduction hearing in May 2017,
the district court assumed that he had generally adopted the
findings in Rodriguez’s PSR at the original sentencing
hearing. The government argued that the uncontested drug
quantities used in the calculations in Rodriguez’s PSR, 4.8
kilograms and 186 grams of methamphetamine, controlled.
Consequently, the government maintained, Rodriguez was
ineligible for sentence reduction under § 3582(c)(2),
because the PSR’s drug quantity would not lower
Rodriguez’s Guidelines range. Rodriguez argued to the
contrary—that the only finding at the original sentencing
hearing was that he possessed at least 1.5 kilograms of
methamphetamine, which is not a finding as to a drug
quantity that makes Rodriguez ineligible for sentence
reduction.
The district court accepted Rodriguez’s argument,
agreeing that it had not made a disqualifying drug quantity
finding at the original sentencing by adopting the PSR’s
findings. The court concluded that Rodriguez was eligible
for § 3582(c)(2) sentence reduction and reduced
Rodriguez’s sentence from 168 months to 151 months. In so
ruling, the court did not engage in supplemental fact-finding
to determine the drug quantity actually attributable to
Rodriguez. The government’s appeal followed.
III
We review a district court’s § 3582(c)(2) sentence
reduction decision for abuse of discretion. United States v.
Dunn, 728 F.3d 1151, 1155 (9th Cir. 2013). “A district court
may abuse its discretion if it does not apply the correct law
or if it rests its decision on a clearly erroneous finding of
UNITED STATES V. RODRIGUEZ 11
material fact.” United States v. Sprague, 135 F.3d 1301,
1304 (9th Cir. 1998) (quoting United States v. Plainbull, 957
F.2d 724, 725 (9th Cir. 1992)).
The government makes two arguments on appeal. First,
it contends that the uncontested drug quantities in
Rodriguez’s court-adopted PSR are binding drug quantity
findings for purposes of § 3582(c)(2), and that those
quantities render Rodriguez ineligible for a sentence
reduction. Second, the government maintains that the district
court was required to determine whether Rodriguez is more
likely than not responsible for a drug quantity that meets the
new quantity threshold under Amendment 782. We address
each argument in turn.
A
Relying on our decision in Mercado-Moreno, the
government argues that the drug quantities in Rodriguez’s
PSR—4.8 kilograms of methamphetamine from his vehicle
and 186 grams of methamphetamine mixture from his
residence—were binding on the district court in considering
Rodriguez’s § 3582(c)(2) sentence reduction motion. Based
on this understanding, the government contends that
Rodriguez is ineligible for a sentence reduction at the first
step of the inquiry, as the PSR’s drug quantities generate the
same base offense level under Amendment 782 as
previously, and thus would not have the effect of lowering
his Guidelines range.
The government’s reading of Mercado-Moreno is
flawed. A close reading of that opinion compels the opposite
conclusion. Under Mercado-Moreno, drug quantities in a
generically adopted PSR are not binding on district courts in
subsequent § 3582(c)(2) proceedings.
12 UNITED STATES V. RODRIGUEZ
1
Mercado-Moreno was charged with one count of
conspiring to manufacture and distribute 50 grams or more
of methamphetamine, in violation of 18 U.S.C. § 2 and 21
U.S.C. §§ 841(a)(1), 846. Mercado-Moreno, 869 F.3d at
950. He pleaded guilty to the charges pursuant to a written
plea agreement. The factual basis in the written agreement
stipulated that Mercado-Moreno had distributed more than
4,376.1 grams (4.3 kilograms) of actual methamphetamine
in furtherance of the conspiracy. Id. The agreement’s factual
basis also specified that Mercado-Moreno managed others in
the manufacture of methamphetamine but did not provide a
specific quantity of methamphetamine manufactured. Id. At
his plea colloquy, Mercado-Moreno affirmed the factual
basis for his plea. Id.
The PSR prepared for Mercado-Moreno’s sentencing
asserted that law enforcement had seized 40 pounds (roughly
18 kilograms) of methamphetamine solution from his
laboratory. Id. at 951. Mercado-Moreno did not contest this
factual assertion (or any other) in the PSR. Id. The
sentencing judge adopted the PSR in its entirety. Id. The
sentencing judge also specifically found that Mercado-
Moreno had “distributed 4.2 kilograms of actual
methamphetamine during the course of the conspiracy” 6 but,
despite the undisputed factual assertion in the PSR that
Mercado-Moreno manufactured roughly 18 kilograms of
methamphetamine, did not make a specific finding as to the
“precise quantity of actual methamphetamine . . .
6
The sentencing judge’s finding of 4.2 kilograms, as opposed to 4.3
kilograms, was, Mercado-Moreno conceded, a typographical error.
Mercado-Moreno, 869 F.3d at 951. As this error is not pertinent to our
analysis, we do not discuss further Mercado-Moreno’s treatment of it.
UNITED STATES V. RODRIGUEZ 13
manufactured.” Id. at 948, 951–52. Mercado-Moreno was
sentenced to a 210-month term of imprisonment. Id. at 952.
Mercado-Moreno filed a § 3582(c)(2) sentence
reduction motion after Amendment 782 was made
retroactive. In calculating the amended Guidelines range, the
district court used both Mercado-Moreno’s stipulation in his
plea agreement that he had possessed more than 4.3
kilograms of methamphetamine and the uncontested 18
kilograms of manufactured methamphetamine described in
the original PSR (and tested via a chemical analysis report
presented to the court). Id. at 952. Because Amendment 782
would not lower Mercado-Moreno’s Guidelines range using
that calculation, the district court denied the § 3582(c)(2)
motion for sentence reduction at the first step of the inquiry.
Id. at 953.
Mercado-Moreno appealed to this court, arguing that (1)
§ 3582(c)(2) does not permit district courts to redetermine
the drug quantity found at original sentencing; and (2) the
district court erred in making supplemental findings as to
drug quantity without a hearing. Id. Ruling on these
contentions, Mercado-Moreno clarified, as relevant here, the
circumstances in which drug quantities from the original
sentencing are binding in later § 3582(c)(2) proceedings, and
also provided a framework for making supplemental
findings as to drug quantity.
First, Mercado-Moreno instructed that a drug quantity is
binding at the initial step—whether the amendment lowered
defendant’s Guidelines range—in only two circumstances:
(1) where “the sentencing court made a specific finding
regarding the total quantity of drugs for which the defendant
was responsible,” or (2) where “the defendant admitted to a
specific total quantity.” Id. at 957 (emphases added).
14 UNITED STATES V. RODRIGUEZ
Second, Mercado-Moreno clarified that, if the prior drug
quantity finding at original sentencing is ambiguous or
incomplete, a district court in § 3582(c)(2) proceedings may
need to make supplemental findings of drug quantity. Id. A
finding is ambiguous or incomplete if, for example, the
sentencing judge “attributed a range of quantities (such as ‘at
least X kilograms’) to the defendant,” or “quantified only
part of the amount for which [d]efendant was responsible,
without making a specific finding as to the rest.” Id. at 954.
In making supplemental findings of drug quantity,
Mercado-Moreno instructed, “the district court may
consider . . . ‘the trial transcript, the sentencing transcript,
and the portions of the presentence report that the defendant
admitted to or the sentencing court adopted.’” Id. at 957
(quoting United States v. Valentine, 694 F.3d 665, 670 (6th
Cir. 2012)). With specific regard to factual assertions in a
PSR, Mercado-Moreno clarified that courts “may accept as
true any facts in a PSR that the defendant did not object to at
the time of sentencing.” Id. The only restriction on
supplemental findings is that they “may not be inconsistent
with any factual determinations made by the original
sentencing court.” Id.
Notably, a district court’s potential reliance on a generic
adoption of a PSR—as opposed to reliance on a specific
finding of a drug quantity by the district court—is discussed
and sanctioned only in the section of Mercado-Moreno
pertaining to supplemental fact-finding. The portion of the
opinion pertaining to determining whether prior findings or
admissions are binding at the first step of the inquiry does
not suggest that reliance on a generic adoption of a PSR
suffices for that purpose.
Applying this framework for § 3582(c)(2) proceedings,
Mercado-Moreno held that (1) Mercado-Moreno stipulated
UNITED STATES V. RODRIGUEZ 15
only to distributing more than 4,376.1 grams of
methamphetamine, not to a specific quantity, id. at 958 and
(2) “the original sentencing court did not make any findings
regarding the amount of manufactured methamphetamine
attributable to Defendant, [so] it was necessary for the
district court to make those supplemental findings in order
to rule on Defendant’s later motion.” Id. at 959 (emphasis
added). By so holding, Mercado-Moreno necessarily
determined that the uncontested statement in Mercado-
Moreno’s court-adopted PSR concerning the amount of
methamphetamine manufactured was not a binding finding
of drug quantity under § 3582(c)(2). Rather, Mercado-
Moreno confirmed that only a “specific finding” regarding
drug quantity, id. at 957 (emphasis added), is preclusive at
the first step of the inquiry; uncontested facts in a generically
adopted PSR do not constitute specific findings and are thus
nonbinding in subsequent § 3582(c)(2) proceedings. Id.
2
As the above recounting demonstrates, Mercado-
Moreno instructs that drug quantities alluded to in the
original sentencing are binding in a § 3582(c)(2) proceeding
only if (1) the sentencing judge made a specific finding of
drug quantity or (2) the defendant admitted to a specific
quantity. Id. at 957. A sentencing judge’s generic adoption
of a PSR (or an adoption of its justifications) does not fall
into either category. We therefore decline, as Mercado-
Moreno instructs, to transform statements of generic
adoption of a PSR into binding, specific determinations as to
particular drug quantities.
Notably, Mercado-Moreno concluded that the
government had not waived its argument for a higher drug
quantity finding by failing to object at the original
sentencing, because it did not have an incentive to prove a
16 UNITED STATES V. RODRIGUEZ
higher amount at the time and did not “knowingly
relinquish[] the unforeseeable necessity to argue a higher
amount later on.” Id. at 959 n.9. Similarly, in many
instances, the PSR’s account of drug quantity will not affect
the defendant’s Guidelines range, providing little incentive
to the defendant to contest the asserted amount or to the
sentencing judge to focus on whether the PSR’s asserted
amount is accurate.
The district court’s ruling now before us reflects this
dynamic. The district court apparently did not view the
earlier generic adoption of the PSR as a ruling on the specific
quantity of drugs Rodriguez possessed, presumably because
it had no reason to focus on the precise quantity at the time.
To be clear, we do not suggest that judges are required at
the original sentencing to make findings of drug quantity
beyond what is required to determine the applicable
Guidelines range at the time. To the contrary, sentencing
judges may make general findings of drug quantity by
adopting the PSRs. In some instances, such a general
adoption of the findings will be preferable, particularly
where a defendant admits to a general drug quantity that
meets the threshold for a Guidelines base offense level and
any plausible specific finding would not alter that level. In
that circumstance, any specific finding could be superfluous
to the sentencing result. 7 It is always possible, of course,
that, as here, the Guidelines drug quantity threshold could be
7
In some instances, sentencing judges will, in fact, focus on the
accuracy of an asserted drug quantity in a PSR—for example, sentencing
judges may need to assure the accuracy of the PSR when contemplating
an upward variance. In that circumstance, the judge will want to ensure
that the basis for such a variance is accurate, and is likely to make a
finding as to the specific drug quantity involved, even if the specific
amount is not determinative of the Guidelines range.
UNITED STATES V. RODRIGUEZ 17
altered after the original sentencing. But there is no need
routinely to anticipate that possibility—which may never
come to pass—in the original sentencing proceeding. As we
shall explain, supplemental fact-findings as part of any
future § 3582(c)(2) proceedings are available and suffice.
B
Applying Mercado-Moreno to Rodriguez, we conclude
that neither required circumstance for a binding
determination occurred. The sentencing judge at the initial
sentencing did not make a specific finding of drug quantity,
and Rodriguez did not admit to a specific drug quantity
beyond the quantity necessary to determine the appropriate
Guidelines range. 8
Under Mercado-Moreno, the drug quantities in the
court-adopted PSR—4.8 kilograms of methamphetamine
and 186 grams of methamphetamine mixture—do not
constitute specific drug quantity findings and so are not
binding for purposes of applying § 3582(c)(2). Accordingly,
there were no binding drug quantity findings or admissions
8
Rodriguez stipulated in his plea agreement that law enforcement
officers seized 11 pounds (roughly 4.9 kilograms, but erroneously
calculated as 4.8 kilograms in the PSR) of methamphetamine from his
vehicle. His stipulation as to what was seized from his vehicle is not
tantamount to a specific admission of drug possession with intent to
distribute. See, e.g., United States v. Espinoza, 880 F.3d 506 (2018)
(reversing a conviction for importing a controlled substance because the
district court erred in excluding evidence supporting defendant’s theory
that, when she crossed the border, she was unaware of the drugs in her
car, which would negate the applicable mens rea). The government
appears to so recognize, and does not argue that Rodriguez made a
binding, specific admission of drug quantity. Instead, the government
relies only on the uncontested PSR, which did assert that Rodriguez
possessed the 4.8 kilograms found in his vehicle.
18 UNITED STATES V. RODRIGUEZ
of a specific quantity at Rodriguez’s original sentencing that
bound the district court at the later § 3582(c)(2) proceedings.
C
The government further contends that the district court
should have determined whether the drug quantity
attributable to Rodriguez satisfied the new drug quantity
threshold for offense base level 38 under Amendment 782.
On that point, we agree with the government.
As we have explained, § 3582(c)(2) established a two-
step inquiry for determining whether a defendant is entitled
to a sentence reduction. The first step, which determines
eligibility, requires the district court to determine whether
the Amendment invoked has the “effect of lowering the
defendant’s applicable [G]uideline[s] range.” U.S.S.G.
§ 1B1.10(a)(2)(B). This step necessarily requires a finding
of the drug quantity attributable to the defendant sufficient
to “determine whether the defendant is more likely than not
responsible for the new quantity threshold under the
retroactive Guidelines amendment.” Mercado-Moreno, 869
F.3d at 957. Without such a finding, there is no way for a
district court to determine whether the amendment would
lower the defendant’s Guidelines range.
If the district court at the original sentencing did not
make a specific drug quantity finding, as we have concluded
in this situation here, the proper course is for the district
court to engage in supplemental fact-finding to determine
whether the defendant is eligible for a sentence reduction
under § 3582(c)(2). Id. At that stage, as Mercado-Moreno
explained, the district court may take into account the drug
quantity attributed to the defendant in a court-adopted PSR,
as well as the trial and sentencing transcripts. Id.
UNITED STATES V. RODRIGUEZ 19
Here, the district court concluded that no specific
findings of drug quantity had been made at the original
sentencing. But then, instead of conducting supplemental
fact-finding and determining whether the drug quantity
attributable to Rodriguez meets the new quantity threshold
for the Guidelines range, the district court simply granted
Rodriguez’s § 3582(c)(2) sentence reduction motion. The
district court erred in doing so. It was required first to
determine whether Rodriguez was more likely than not
responsible for a drug quantity that meets Amendment 782’s
quantity threshold.
IV
We REVERSE and REMAND for further proceedings
consistent with the opinion.
CARDONE, District Judge, dissenting:
Because I believe the district court made a sufficiently
specific finding as to drug quantity during Rodriguez’s
original sentencing hearing that renders Rodriguez ineligible
for a reduced sentence under 18 U.S.C. § 3582(c)(2), I
respectfully dissent.
Under Mercado-Moreno, “[i]f the record reflects that the
sentencing court made a specific finding regarding the total
quantity of drugs for which the defendant was responsible,
. . . then the district court must use that quantity and
determine whether applying the retroactive amendment
would lower the defendant’s guideline range.” United States
v. Mercado-Moreno, 869 F.3d 942, 957 (9th Cir. 2017). If,
on the other hand, “the sentencing court’s quantity finding
was ambiguous or incomplete, the district court may need to
20 UNITED STATES V. RODRIGUEZ
make additional findings of drug quantity to determine the
defendant’s eligibility for a sentence reduction.” Id.
The Mercado-Moreno court decided the sentencing
court’s quantity finding was incomplete because it had “only
determined the quantity of actual methamphetamine [the
defendant] had distributed”—4.3 kilograms—without
making any finding regarding the quantity of
methamphetamine the defendant was responsible for
manufacturing. Id. at 958. And, because Amendment 782
would have lowered the defendant’s base offense level only
if the quantity of actual methamphetamine attributable to the
defendant was less than 4.5 kilograms, it was necessary for
the district court to make supplemental findings as to the
quantity of manufactured methamphetamine before it could
decide whether the defendant was eligible for a sentence
reduction. Id. at 958–59; see U.S.S.G. supp. app. C, amend.
782 (Nov. 1, 2014).
In this case, the record shows that the sentencing court
made a specific finding regarding the total quantity of
methamphetamine for which Rodriguez was responsible.
The district court reviewed the presentence investigation
report (“PSR”) prepared by the probation department prior
to sentencing Rodriguez. Paragraph 11 of the PSR
calculated Rodriguez’s base offense level under the
Guidelines. It provided in part,
the defendant possessed approximately 4.8
kilograms of methamphetamine (actual) in
his vehicle. He also had 186 grams of a
mixture of methamphetamine at his
residence. While the overall conspiracy
involved much larger quantities of
methamphetamine, the defendant’s relevant
conduct is limited to these amounts. USSG
UNITED STATES V. RODRIGUEZ 21
2D1.1(c)(1) establishes a base offense level
of 38, the highest available under USSG
2D1.1, if the offense involved 1.5 kilograms
or more of methamphetamine (actual). Since
the defendant possessed 4.8 kilograms of
methamphetamine (actual) in his vehicle, the
186 grams of methamphetamine mixture is of
such a small quantity that it will not be
included, as it will not affect the guideline
computation. A base offense level of 38 is
recommended.
At sentencing, neither Rodriguez nor the government
objected to the drug quantities listed in the PSR. The judge
stated that he “agree[d] with the justifications set forth in the
presentence report” and adopted the PSR’s recommended
base offense level. The PSR’s only justification for its base
offense level was that Rodriguez “possessed approximately
4.8 kilograms of methamphetamine (actual).” By explicitly
relying upon the PSR’s justification, the sentencing judge
necessarily determined that Rodriguez was responsible for
the 4.8 kilograms of methamphetamine (actual) before
imposing the original sentence.
Thus, when subsequently considering Rodriguez’s
eligibility for a sentencing reduction, I believe the district
court was bound to use the 4.8 kilograms. And, because this
still triggers the maximum base offense level of 38,
Amendment 782 does not lower Rodriguez’s Guideline
range and he is ineligible for a sentence reduction. See
U.S.S.G. supp. app. C, amend. 782 (Nov. 1, 2014);
Mercado-Moreno, 869 F.3d at 957. I would therefore
reverse the district court’s order reducing Rodriguez’s
sentence.