August 9, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 CR 671 - James
B. Zagel, Judge.
Bauer, Posner, and Sykes, Circuit Judges.
Brown seeks to reduce his 292-month drug-distribution
sentence based on the retroactive application of Amendment
782 to the federal sentencing guidelines. See 18
U.S.C. § 3582(c). The district court denied the motion,
determining that Brown's offense level was unaffected by
the amendment. We affirm.
2003 and 2008, Brown purchased and distributed millions of
dollar's worth of cocaine in the Chicago area. United
States v. Brown, 726 F.3d 993, 995 (7th Cir. 2013). He
eventually was arrested by federal authorities and convicted
by a jury of conspiring to distribute at least five kilograms
of cocaine, see 21 U.S.C. §§ 846,
841(a)(1). Brown, 726 F.3d at 995-96.
sentencing the parties disputed the quantity of cocaine for
which Brown was responsible. Brown argued that he should be
held responsible only for five kilograms, as the jury had
found, because, he asserted, that was the maximum established
by reliable evidence. The government sought to hold him
responsible for nearly 3000 kilograms, based on the trial
testimony of three cooperating witnesses about the number of
Brown's transactions and the volume of drugs sold in
each. The district court determined without elaboration that
150 kilograms were "within the zone of this
defendant's responsibility, " and that this quantity
had been "proven and probably proven twice over."
The quantity corresponded to a base offense level of 38-the
top base offense level provided in the drug quantity table.
See U.S.S.G. §2D1.1(c)(1) (2011) (base offense
level of 38 applies to "150 KG or more of
Cocaine"). The court added, "I think if we had a
level 40 or a level 42 on top of that, it probably makes that
figure, too." Combined with a criminal history category
of III, Brown's total offense level of 38 (he received no
adjustments) yielded a guidelines range of 292 to 360 months.
The court sentenced him to the bottom of that range. Brown
appealed his conviction-but not the court's drug quantity
calculation-and we affirmed. Brown, 726 F.3d 993.
years after he was sentenced, Brown filed a motion under 18
U.S.C. § 3582(c)(2) to reduce his sentence under
Amendment 782. That amendment raised the amount of cocaine
necessary to qualify for a base offense level of 38 from 150
kilograms to 450 kilograms. See U.S.S.G. §
lB1.10(d) & Supp. to App. C, amends. 782, 788 (2014). The
government maintained that Brown's base offense level was
unchanged by the amendment because he was responsible for
well over 450 kilograms based on witness testimony about his
drug transactions. In reply Brown noted that the court had
not found him accountable for a quantity more specific than
150 kilograms or more of cocaine, and asked the court to make
a finding about the actual drug weight in order to determine
whether he qualified for a sentence reduction under Amendment
782. If the court found him responsible for less than 450
kilograms, the amended guideline range would be 235 to 293
months (down from 292 to 360) and Brown asked the court to
resentence him to the 240 month statutory minimum.
district court declined to disturb its guideline calculation
and denied the motion:
The problem for Brown is that his offense level is not, and
has not, been lowered. He has an offense level of 38, and
this level applies under both the older and the newer revised
guidelines. The continuing existence of the level of 38 is
the result of the very large quantities of cocaine involved.
I found that Brown was clearly responsible for 150 kilograms
of cocaine. Indeed, I thought the quantities might have been
higher, but a level 40 or 42 was appropriate as well if the
2012 guidelines provided for levels of 40 to 42.1 thought
there was no way to go further than level 38. There was
evidence that more than 450 kilograms was part of his
alternative basis for denying Brown's motion, the court
added that he was sentenced under the career offender
guideline and therefore ineligible for any sentence reduction
under the amendment.
argues that the district court erred in concluding that
Amendment 782 does not lower his offense level. He contends
that the district court failed to make a drug-quantity
finding more specific than his being responsible for
"150 kilograms or more" of cocaine, and as a result
could not have evaluated whether he was eligible for a
reduction under § 3582(c)(2).
retroactive amendment to the guidelines alters the relevant
drug-quantity thresholds for determining the base offense
level, a district court in ruling on a § 3582(c) motion
may need to make new findings-findings that are supported by
the record and not inconsistent with those made in the
original sentencing determination. United States v.
Hall, 600 F.3d 872, 876 (7th Cir. 2010).
district court's order is cursory but it did not commit
reversible error in denying Brown's motion. The court
denied Brown's motion because the amendment did not lower
his offense level, noting that "there was evidence that
more than 450 kilograms was part of his responsibility."
This statement-along with the court's comment at
sentencing that the very large quantities of cocaine
warranted a higher base offense level than what was
authorized under the guidelines-reflects the court's
determination that Brown was responsible for 450 kilograms or
more of cocaine. While the district court could have
expressed its drug-quantity finding more clearly, remand is
not necessary because the outcome of such proceedings would
be clear and remand futile. See United States v.
Hallahan, 756 F.3d 962, 971 (7th Cir. 2014); United
States v. Purchess, 107 F.3d 1261, 1269 (7th Cir. 1997).
As the government points out, the record confirms that Brown
was responsible for 450 kilograms: witnesses testified to
delivering thousands of kilograms of cocaine and receiving
millions of dollars as payments. Brown, 726 F.3d at
close by noting that the court's alternative basis for
denying the motion-that Brown was sentenced under the career
offender guideline-was incorrect. But because the court
properly concluded Brown's offense level was unchanged by
the amendment, this error was harmless. See United States
v. Clayton,811 ...