United States v. McKinney, No. 11-1439 (6th Cir. Feb. 23, 2012) (unpublished).
Chief Judge Batchelder, and Judges Norris and Stranch.
District court denied a crack reduction under 18 U.S.C. 3582(c)(2). Court of appeals affirmed this denial.
2004 conviction for guns and drugs. As part of the plea deal, the government agreed to dismiss a count that would have carried a consecutive thirty-year mandatory sentence (for having a destructive device). In '04, highest base offense level was 38 (more than 1.5 kilos of crack). That's what this defendant got. Ended up with a total offense level of 37, criminal history category IV, and range of 292 to 365 months.
Defendant did not object to the original PSR. District court sentenced defendant to 292 months + 120 months (concurrent) on gun count. Sentence fell to 235 months after a Rule 35.
After the first round of crack amendments, the defendant sought a reduction in sentence. Probation did not recommend a reduction, finding that the PSR established the defendant was responsible for more than 4.5 kilos of crack, the new threshold for level 38. The district court (who was not the original sentencing judge) found that the only original determination was that the defendant was responsible for at least 1.5 kilos. That quantity would put the defendant at base offense level 36 under the first set of amendments.
The district court requested supplemental briefing regarding how the court should exercise its discretion. The government moved for a second Rule 35 reduction. The case was reassigned and returned to the original sentencing judge.
The original sentencing judge ruled against a reduction under 3582(c)(2). Looked to the original sentencing record and the PSR, to which the defendant had not objected. Court found that the defendant was responsible for more than 4.5 kilos. Court found that this conclusion was not inconsistent with the original findings b/c 4.5 kilos is in excess of 1.5 kilos, the only original determination. The court did grant the Rule 35 and reduced the sentence to 214 months.
The court of appeals concluded that:
* The defendant had accepted all of the facts in the PSR b/c he did not object to them.
* The PSR confirmed that the defendant was responsible for at least 6 kilos of crack.
* United States v. Moore, 582 F.3d 641 (6th Cir. 2009), said that a new factual finding of a higher quantity is not inconsistent with an original finding of "at least" 1.5 kilos.
