United States v. Kenneth Valentine

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0327p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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11-1296/1345/1916

Plaintiff-Appellee, --

UNITED STATES OF AMERICA,

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Nos. 11-1296/ 1345/ 1916/

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1450

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v.

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KENNETH JEROME VALENTINE; COREY

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TIWANE VALENTINE; JOHNNY VALENTINE,

Defendants-Appellants. -

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11-1450

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UNITED STATES OF AMERICA,

Plaintiff-Appellant, -

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v.

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JIMMY RAY VALENTINE, -

Defendant-Appellee. -

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:99-cr-1

Paul Lewis Maloney, Chief District Judge; Robert J. Jonker, District Judge.

Argued: June 7, 2012

Decided and Filed: September 12, 2012

Before: BATCHELDER, Chief Judge; KEITH and DONALD, Circuit Judges.

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COUNSEL

ARGUED: Christopher M. Gibbons, THE LAW OFFICES OF DUNN/GIBBONS,

Grand Rapids, Michigan, Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE,

Grand Rapids, Michigan, Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan,

for Appellants in cases 11-1296, 11-1345, and 11-1916. Jennifer L. McManus, UNITED

STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee in Cases 11-

1296, 11-1345, and 11-1916. Jennifer L. McManus, UNITED STATES ATTORNEY’S

OFFICE, Grand Rapids, Michigan, for Appellant in 11-1450. Jennifer L. Swize, JONES

1

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 2

DAY, Washington, D.C., for Appellee in 11-1450. ON BRIEF: Christopher M.

Gibbons, THE LAW OFFICES OF DUNN/GIBBONS, Grand Rapids, Michigan, Paul

L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, Scott

Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellants in cases 11-1296,

11-1345, and 11-1916. Jennifer L. McManus, UNITED STATES ATTORNEY’S

OFFICE, Grand Rapids, Michigan, for Appellee in Cases 11-1296, 11-1345, and 11-

1916. Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE, Grand

Rapids, Michigan, for Appellant in 11-1450. Jennifer L. Swize, JONES DAY,

Washington, D.C., for Appellee in 11-1450.

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OPINION

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ALICE M. BATCHELDER, Chief Judge. Defendants Kenneth, Corey, Johnny,

and Jimmy Ray Valentine1 moved for sentencing modifications under 18 U.S.C.

§ 3582(c)(2) based on amendments to the crack cocaine sentencing guidelines. Judge

Paul L. Maloney considered Kenneth’s, Corey’s, and Johnny’s requests, determined that

they were ineligible for sentencing reductions, and denied their motions. Judge Robert

J. Jonker considered Jimmy Ray’s motion, determined that he was eligible for a

reduction, and reduced his sentence by six months. For the reasons that follow, we

AFFIRM Judge Maloney’s orders, REVERSE Judge Jonker’s order, and REMAND

Jimmy Ray’s case to the district court.

I.

Between 1991 and 1999, Kenneth, Corey, Johnny, and Jimmy Ray Valentine

were involved in a large-scale drug operation in Benton Harbor, Michigan. A federal

grand jury indicted them, along with several other people, on charges of conspiracy to

distribute and possess with the intent to distribute cocaine base (crack cocaine) in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Kenneth, Corey, Johnny, and Jimmy Ray

chose to proceed to trial, and Judge Richard A. Enslen presided.

1

Because Defendants share the same last name, we will refer to them by their first names.

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 3

During trial, Jerry Lee Butler testified that he supplied the Defendants with

kilogram quantities of crack cocaine in Mariana, Arkansas. Butler estimated that he sold

approximately 50 kilograms of crack cocaine to Kenneth, Corey, Johnny, and Jimmy

Ray between 1994 and 1998. Specifically, he testified that he sold between one-and-a-

half and two-and-a-half kilograms to Jimmy Ray and Kenneth two or four separate

times, that Jimmy Ray and Kenneth arranged for several other deliveries that Corey or

Johnny would pick up, that Corey made approximately twenty trips to Arkansas to pick

up one-and-a-half to three kilograms of crack cocaine at a time, and that Johnny picked

up drugs on three to five occasions.

Yusef Phillips, another government witness, testified that in 1995, he partnered

with the Valentines to purchase drugs from Butler. Phillips also testified that he

obtained other suppliers for the Valentines: one in Michigan that supplied ounce-

quantity amounts six or seven times, and one in California that supplied kilogram-

quantity amounts five or six times. Overall, Phillips estimated that between 1995 and

1998, the Valentines distributed three kilograms of crack cocaine per month, roughly 75

kilograms, with about 60 kilograms coming from Jerry Lee Butler.

On February 11, 2000, the jury found Kenneth, Corey, Johnny, and Jimmy Ray

guilty on one count of conspiracy to distribute and possess with the intent to distribute

crack cocaine. Prior to sentencing, the United States Probation Office prepared

Presentence Investigation Reports (PSRs) for each Defendant, concluded that each

Defendant’s criminal activity involved more than 1.5 kilograms of crack cocaine, and

recommended that each Defendant receive the highest base-offense level of 38. At the

time of Defendants’ sentencings, the highest base-offense level applied if the drug

quantity attributable to the defendant was 1.5 kilograms or more of cocaine base.

U.S.S.G. § 2D1.1(a)(3), tbl. (c)(1) (2000). Each Defendant objected to his PSR’s

quantity statement.

Judge Enslen held sentencing hearings for each Defendant and individually

considered each Defendant’s objection. Summarizing Kenneth Valentine’s role in the

conspiracy, the court stated, “The trial testimony indicated that [Kenneth] was involved

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 4

in multiple kilogram purchases of crack cocaine from Arkansas, and he personally

negotiated the price, quantity[,] and timing of these transactions.” The court overruled

Kenneth’s objection to the quantity, noting that it had “serious misgivings” about the

total amount of crack cocaine that the conspiracy purchased but nevertheless concluding

that “[a] preponderance of the evidence . . . support[s] the conclusion that the conspiracy

purchased at least 1.5 kilograms of crack cocaine and a great deal more.” [Id. at 12-13].

The court also overruled Corey Valentine’s objection. Judge Enslen noted that

Jerry Lee Butler testified that Corey had made “approximately 20 trips to Arkansas to

pick up multiple kilograms of crack cocaine.” Overall, the court noted, Butler testified

that the conspiracy purchased nearly 50 kilograms of crack cocaine, and Yusef Phillips

testified that the total amount was closer to 75 kilograms. Although Judge Enslen noted

that the figures “relating to the total amount of crack involved in the conspiracy may be

inflated or may not be,” he ultimately determined that “the conspiracy is responsible for

at least 1.5 kilograms of crack.”

The court noted these same concerns about the total quantity during Johnny’s

sentencing. Nevertheless, the court overruled Johnny’s quantity objection, concluding

that the conspiracy was responsible for at least 1.5 kilograms of crack cocaine, which

was reasonably foreseeable by Johnny. Judge Enslen concluded by stating, “That I think

is an easy finding of more than 1.5 kilograms, but it’s only necessary to find 1.5.”

Judge Enslen also overruled Jimmy Ray’s objection, again referencing Butler’s

testimony that he sold crack cocaine to Jimmy Ray “three to five times” and that Jimmy

Ray “purchased one to two kilos in those transactions.” The court also noted that

“nobody contradicted Jerry Lee Butler.” Finally, Judge Enslen stated, “While the Court

might have misgivings about the total amount of crack, whether it is 50 to 60 kilos or

not, I have no trouble finding that [Jimmy Ray] purchased and possessed at least 1.5

kilograms of crack cocaine.”

After calculating each Defendant’s Guideline range, Judge Enslen sentenced each

Defendant to the lowest possible sentence within that range. We affirmed their

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 5

convictions and sentences on direct appeal. United States v. Valentine, 70 F. App’x 314

(6th Cir. 2003).

Between March 2008 and July 2009, Defendants moved for sentence

modifications or reductions under 18 U.S.C. § 3582(c)(2) based on the application of

Amendments 706 and 711 to the Sentencing Guidelines, which were made retroactive

on March 3, 2008. Judge Maloney received Kenneth’s, Corey’s, and Johnny’s motions,

and Judge Jonker received Jimmy Ray’s motion.

Judge Maloney held separate hearings on each Defendant’s motion, examining

the records from their original sentencings and carefully considering Judge Enslen’s

statements from the sentencing transcripts. Ultimately, Judge Maloney found that

Kenneth, Corey, and Johnny were not eligible for sentence modifications under the

retroactive amendments because a preponderance of the evidence available at

Defendants’ original sentencings established that they were responsible for more than

4.5 kilograms of crack cocaine. Judge Jonker did not hold a hearing on Jimmy Ray’s

motion and instead issued an order granting the motion and reducing Jimmy Ray’s

sentence by six months. Judge Jonker determined that Jimmy Ray was eligible for a

sentence reduction because finding that he was responsible for more than 4.5 kilograms

of crack cocaine would be functionally inconsistent with Judge Enslen’s original finding

that Jimmy Ray was responsible for “at least 1.5 kilograms.”

Kenneth, Corey, and Johnny have timely appealed Judge Maloney’s rulings, and

the government has timely appealed Judge Jonker’s ruling.

II.

A district court may modify a sentence “in the case of 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.” 18 U.S.C. § 3582(c)(2). Accordingly,

“a previously imposed sentence may be reduced if the guideline range originally

applicable to the defendant was lowered as a result of a retroactive amendment” to the

Guidelines. United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010). In 2007, the

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 6

Commission enacted Amendment 706, which increased the threshold amount of cocaine

base that must be attributable to a defendant before a court may impose the highest base-

offense level. Prior to Amendment 706, a court could impose the highest base-offense

level if the quantity of cocaine base attributable to the defendant was 1.5 kilograms or

more. Amendment 706 increased that threshold quantity to 4.5 kilograms.2 U.S.S.G.

app. C, amend. 706. In 2008, Congress made the Amendment retroactive in an effort to

reduce sentences for most crack cocaine offenses.

A district court considering a defendant’s motion for a sentencing modification

or reduction must conduct the two-step inquiry outlined in Dillon v. United States, 130

S. Ct. 2683, 2691–92 (2010). The court must first determine if the defendant is eligible

for a sentence modification, and second, the court must determine whether the reduction

is warranted after consideration of the factors listed in 18 U.S.C. § 3553(a). Id.

Generally, we review a district court’s decision to modify a sentence under 18 U.S.C.

§ 3582(c)(2) for abuse of discretion. Curry, 606 F.3d at 327. However, if a district

court’s refusal to modify a sentence rests on its determination that the defendant is

ineligible for a sentence reduction, we review de novo the district court’s eligibility

determination. United States v. Watkins, 625 F.3d 277, 281 (6th Cir. 2010); Curry, 606

F.3d at 327. Additionally, we review for clear error a district court’s factual findings

made in connection with the Sentencing Guidelines. United States v. Moore, 582 F.3d

641, 644 (6th Cir. 2009). As the parties agreed at oral argument, the primary issue

before us on appeal is whether the Defendants are eligible for sentence reductions.

A defendant is eligible for a sentence reduction only if the amendment has “the

effect of lowering the defendant’s applicable guideline range” when the court substitutes

the amendment for the corresponding guideline provision that was applied when the

defendant was sentenced, leaving “all other guideline application decisions unaffected.”

U.S.S.G. § 1B1.10(a)(2)(B); Dillon, 130 S. Ct. at 2691; see also Watkins, 625 F.3d at

282. To determine whether a retroactive amendment would lower a defendant’s

2

Additional amendments made retroactive in 2011 have increased this threshold to 8.4 kilograms.

See U.S.S.G. app. C, amends. 748, 750, & 759.

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 7

sentence, the district court considering the modification motion—the modification

court—must examine the record that was available to the original sentencing court. See

United States v. McKinney, 464 F. App’x 444, 447 (6th Cir. 2012); Moore, 582 F.3d at

646. If the record indicates that there was a finding of a specific quantity of drugs, either

because the original sentencing judge made a specific finding or because the defendant

admitted to a specific quantity, then the modification court must use that quantity and

determine whether applying the retroactive amendment has the effect of lowering the

Guideline range; if it does, the defendant is eligible, and the court proceeds to the second

step of the Dillon analysis. Watkins, 625 F.3d at 281. However, if the record does not

reflect a specific quantity finding but rather a finding or a defendant’s admission that the

defendant was responsible for “at least” or “more than” a certain amount, then the

modification court must make supplemental findings based on the available record to

determine if applying the retroactive amendment lowers the Guideline range. Moore,

582 F.3d at 646. Essentially, the modification court must determine whether a

preponderance of the evidence in the record establishes that the defendant is responsible

for the quantity of drugs set forth in the retroactive amendment. The modification

court’s examination of the record will include the trial transcript, the sentencing hearing

transcript, and the portions of the presentence report that the defendant admitted to or

the sentencing court adopted. See, e.g., United States v. Blackmon, 380 F. App’x 498,

501 (6th Cir. 2010) (finding defendant ineligible based on portions of the PSR that he

admitted to by failing to object); see also Moore, 582 F.3d at 646 (remanding to district

court to determine whether the record establishes that defendant was responsible for

more than 4.5 kilograms of drugs).

Applying this analysis to the present cases, we must first reject Defendants’

contention that Judge Enslen’s findings of “at least 1.5 kilograms” are specific findings

of quantity that preclude further fact-finding upon a motion for sentence modification.

At Kenneth’s, Corey’s, and Jimmy Ray’s sentencings, Judge Enslen found that “at least

1.5 kilograms” of crack cocaine was attributable to each Defendant. At Johnny’s

hearing, Judge Enslen found that he was responsible for “more than 1.5 kilograms.”

Despite Defendants’ arguments to the contrary, these statements are not specific quantity

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 8

findings, and they do not set a ceiling at which a later modification court is limited;

instead, the straightforward, logical reading of these statements is that 1.5 kilograms is

a floor from which a higher finding can be determined. Aside from the simple semantics

that support this interpretation, the context of the statements and the practicalities of the

Guidelines also support this conclusion. Judge Enslen made these general findings of

“at least” and “more than” 1.5 kilograms after reflecting on the testimonies of Butler and

Phillips that the conspiracy involved upwards of 50 kilograms of crack cocaine.

Although Judge Enslen expressed “misgivings” about their testimonies of the total

amount involved in the conspiracy, it is clear from the transcript that the court’s

concerns rested with the upper-end of the possible total. At no point did Judge Enslen

express concern about the lower-end quantities. A straightforward reading of the

transcript simply does not support the conclusion that Judge Enslen limited his quantity

determination to 1.5 kilograms.

Judge Enslen’s statements are even less indicative of a specific finding of 1.5

kilograms in light of the structure of the applicable Guidelines at the time, which

required a finding of only 1.5 kilograms to impose the highest base-offense level. A

reasonable understanding of Judge Enslen’s determination with this limitation in mind

indicates that he chose not to quibble over whether the exact quantity was closer to 50

or 60 kilograms when, as he stated, “it’s only necessary to find 1.5.”3 Finally, and most

importantly, we have previously held that a finding of “more than 1.5 kilograms” does

not prevent a subsequent court that is considering a modification motion from making

additional factual findings. Moore, 582 F.3d at 646. Accordingly, we reject Defendants’

argument that Judge Enslen’s statements qualify as a specific finding of quantity; Judge

3

Defendants contend that despite the 1.5-kilogram threshold, Judge Enslen still had an incentive

to make a specific finding of a higher quantity because it would have affected the length of the sentence

within the Guideline range, and that indeed, Judge Enslen had made specific, above-threshold findings in

other cases. These arguments fail to persuade us that Judge Enslen set the quantity limit in Defendants’

cases at 1.5 kilograms. First, Judge Enslen did not indicate that his selection of a sentence within the

Guideline range had anything to do with the drug quantity involved. Instead, during Corey’s sentencing,

just before he chose the lowest possible sentence, Judge Enslen stated that he thought the Guidelines were

“too severe,” and during Johnny’s sentencing, he expressed concern about the drug culture in Defendants’

neighborhood. In light of these statements, and without any similar statements about quantity, Judge

Enslen’s selection of the lowest possible sentence appears to be immaterial on the issue of quantity.

Likewise immaterial are the cases Defendants cite where Judge Enslen made the above-threshold findings

because there is no indication that he made such findings in every similar situation.

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 9

Enslen made only general findings of the quantity attributable to each Defendant, and

those statements do not preclude the modification court from making additional factual

findings regarding quantity.

Likewise without merit is Defendants’ argument that their objections to their

PSRs distinguish their case from Moore and prevent the modification court from

examining the record. In Moore, the defendant’s failure to object to his PSR had no

bearing on whether the modification court could consider the original record when ruling

on the modification motion. We remanded the case precisely because the modification

court had not made a specific finding of whether defendant was responsible for more

than 4.5 kilograms. We determined that making such a finding required the modification

court to examine the record from the original sentencing, which in that case included the

PSR because the defendant had admitted to the facts stated therein. Moore, 582 F.3d at

646 n.2 (“The district court should make its decision based on the information that was

available at the time of sentencing . . . .”). In Moore, the district court refused to

consider Moore’s objection to the Sentence Modification Report’s 4.5-kilogram finding

because Moore had already admitted to distributing “at least 1.5 kilograms” when he

failed to object to that statement in the PSR at his original sentencing and, therefore,

admitted to its “at least 1.5 kilograms” statement. Id. at 644. We found that the district

court erred because the defendant’s admission to “at least 1.5 kilograms” did not

necessarily mean that he also admitted to 4.5 kilograms. Id. at 644–45. Because there

had to be a specific finding that the defendant was responsible for 4.5 kilograms before

the court could determine that the defendant was ineligible, we remanded the case to the

modification court so that it could examine the record, including the original PSR, and

determine if a preponderance of the evidence linked the defendant to 4.5 kilograms. Id.

at 646.

The issue that faced the district court in Moore is essentially the same issue that

faced Judge Maloney and Judge Jonker in Defendants’ cases—the original sentencing

resulted only in a finding that the defendant was responsible for “at least 1.5 kilograms.”

In Moore, that finding came from defendant’s failure to object to the PSR, and in the

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Valentines’ cases, it came from Judge Enslen’s overrulings of their objections and his

conclusion that each Defendant was responsible for “at least 1.5 kilograms.” As we

stated in Moore, a finding of “at least 1.5 kilograms” does not necessitate a finding of

4.5 kilograms, 582 F.3d at 646; therefore, the modification court must look at the record

of the original sentencings4 and determine if a preponderance of the evidence indicates

that Defendants were responsible for 4.5 kilograms.

Having concluded that further fact-finding was not only permitted but required

in order to resolve Defendants’ motions, we turn now to our review of Judge Maloney’s

and Judge Jonker’s rulings.5 We review for clear error factual findings that the district

court makes during its application of the Sentencing Guidelines, including the district

court’s determination of the quantity of drugs attributable to the defendant for sentencing

purposes. Moore, 582 F.3d at 644; United States v. Mahaffey, 53 F.3d 128, 131 (6th Cir.

1995). A factual finding is clearly erroneous when, on the entire evidence, we are “left

with a definite and firm conviction that a mistake has been committed.” Anderson v.

City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (internal quotation marks and

citation omitted). Where the exact amount of drugs involved is unclear, a court may

approximate the quantity of drugs based on circumstantial evidence, making sure to “err

on the side of caution.” United States v. Hernandez, 227 F.3d 686, 699 (6th Cir. 2000).

“A court’s approximation of the amount of drugs involved in a particular case is not

clearly erroneous if supported by competent evidence in the record.” Mahaffey, 53 F.3d

at 132 (internal quotation marks and citation omitted).

4

To the extent that Defendants’ attempts to distinguish Moore encompass the argument that the

modification court in their cases cannot consider their PSRs as the district court did in Moore, they are

likely correct because they, unlike the defendant in Moore, objected to their PSRs. However, Judge

Enslen’s sentencing transcripts alone are sufficient to indicate a quantity by a preponderance of the

evidence. Indeed, Judge Maloney looked only to Judge Enslen’s statements at sentencing and the trial

transcript when he ruled on Defendants’ motions.

5

Preliminarily, we must also reject Defendants’ contention that the government cannot argue, and

the district court cannot find, an amount higher than 1.5 kilograms because the government waived a

higher finding by not presenting evidence of the higher amount when it had the opportunity to do so at the

original sentencings. “[W]aiver is the intentional relinquishment or abandonment of a known right.”

United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation marks and citation omitted). This

certainly does not apply here where the government did not have an incentive to prove anything more than

1.5 kilograms at the original sentencing and could not have knowingly relinquished the unforeseeable

necessity to subsequently argue a higher amount.

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 11

Judge Maloney’s conclusions that Kenneth, Corey, and Johnny were each

responsible for at least 4.5 kilograms of crack cocaine are supported by competent

evidence in the record that was available at Defendants’ original sentencings and,

therefore, are not clearly erroneous. Judge Maloney carefully examined Judge Enslen’s

statements from the original sentencing hearing transcripts and determined that Judge

Enslen believed that more than 4.5 kilograms were involved in this conspiracy. Indeed,

as Judge Maloney noted during Corey Valentine’s hearing, “There is nothing in the

record to indicate that Judge Enslen confined himself to less than 4.5 kilograms.”

Although Judge Enslen questioned whether Butler and Phillips inflated the total quantity

of drugs involved, it is clear from the transcript that his concerns were focused on how

many tens of kilos were involved in this case. If the amended quantity threshold was 40

kilograms rather than 4.5 kilograms, Judge Maloney would have had a tougher question

to answer. However, this is a case where uncontradicted trial testimony indicated that

the conspiracy involved tens of kilograms of crack cocaine that were forseeable to each

Defendant as a member of the conspiracy, and Judge Maloney’s determination is

consistent with Judge Enslen’s original finding. Judge Maloney, therefore, correctly

concluded that Kenneth, Corey, and Johnny were ineligible for sentence reductions

because a preponderance of the evidence in the record indicates that more than

4.5 kilograms of crack cocaine were attributable to them.

Judge Jonker, considering Jimmy Ray’s modification motion, also carefully

examined Judge Enslen’s original transcript, but reached a conclusion contrary to Judge

Maloney’s and found that Jimmy Ray was eligible for a sentence reduction. He

concluded that Judge Enslen “set a specific low end threshold” of 1.5 kilograms of crack

cocaine when Judge Enslen found that Jimmy Ray was responsible for “at least

1.5 kilograms,” and that it would be inconsistent, both functionally and literally, to

increase the quantity finding beyond 1.5 kilograms. [See R.802, Dist. Ct. Order, at 4].

Reviewing de novo Judge Jonker’s eligibility determination, Watkins, 625 F.3d at 280,

we find his reading of the record incorrect and his ultimate determination improper.

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Judge Jonker determined that a supplemental finding of more than 1.5 kilograms

would be inconsistent with Judge Enslen’s original finding of “at least 1.5 kilograms,”

despite our clear statement in Moore that “[s]ince 4.5 kilograms is more than

1.5 kilograms, a new factual finding of the higher quantity is not inconsistent with the

court’s determination at [the defendant’s] original sentencing.” 582 F.3d at 646. He

reasoned that Moore’s instruction to allow further fact finding did not apply in this case

because in Moore, the parties stipulated to the quantity of “at least 1.5 kilograms,”

whereas here, the parties contested the quantity and the district court made the “at least

1.5 kilogram” finding. This, however, is a distinction without a difference: in both

Moore and this case, the modification court was faced with the original sentencing

record that established only that the defendant was responsible for “at least 1.5

kilograms.” We do not see the legal significance in the way that determination was

reached at the original sentencing—whether it was by stipulation or judicial resolution

of the parties’ objections—and we conclude that there is no significance in this

circumstance. Instead, we reiterate our position in Moore that a district court

considering a sentencing modification motion faced with only a general or vague finding

of drug quantity must look at the record from the original sentencing and determine what

quantity the defendant is responsible for by a preponderance of the evidence, and then

determine if applying the retroactive amendment would lower the defendant’s Guideline

range.6 This approach is consistent with the language of the Guidelines7 and with other

circuits that also allow further fact finding during a modification motion. See United

States v. Hernandez, 645 F.3d 709, 712–13 (5th Cir. 2011); United States v. Jones, 388

6

This does not require the modification court to find a specific amount of drugs. Indeed, a

sentencing court may not simply guess the amount of drugs attributable to the defendant. United States

v. Zimmer, 14 F.3d 286, 290 (6th Cir. 1994). Instead, “[i]f the amount cannot be easily determined, it is

the duty of the District Court to estimate the amount,” making sure to err on the side of caution and hold

the defendant accountable for only the amount that he is “more likely than not actually responsible for.”

Id. (internal quotation marks and citation omitted). Therefore, it is sufficient for the court to consider the

amount of the new threshold in the retroactive amendment, here 4.5 kilograms, and determine whether a

preponderance of the evidence in the record indicates that the defendant is responsible for that amount.

7

U.S.S.G. § 1B1.10(b)(1) (“In determining whether . . . a reduction in the defendant’s term of

imprisonment . . . is warranted, the court shall determine the amended guideline range that would have

been applicable to the defendant if the amendment(s) to the guidelines . . . had been in effect at the time

the defendant was sentenced.”).

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 13

F. App’x 314, 315 (4th Cir. 2010); United States v. Woods, 581 F.3d 531, 538–39 (7th

Cir. 2009).

Likewise incorrect is Judge Jonker’s determination that Judge Enslen’s “at least

1.5 kilogram” finding set a low-end threshold and that supplemental findings of a higher

quantity would be inconsistent with the record. The court reasoned that 1.5 kilograms

was a specific, low-end finding because Judge Enslen sentenced Jimmy Ray to the

lowest possible sentence within the Guideline range when he could have sentenced him

to a higher amount in the range based on the amount of drugs involved, and Defendant

argues that this indicates that Judge Enslen must have determined that Jimmy Ray was

responsible for only 1.5 kilograms. However, the record does not suggest that Judge

Enslen chose the lowest end of the Guideline range because of the quantity involved but

rather because he was concerned with the harshness of the Guidelines, from which he

was not permitted to vary, and that at the time, 1.5 kilograms was all he was required to

find to impose the highest base-offense level. More importantly, Judge Jonker’s

conclusion that a higher finding would be inconsistent directly conflicts with our clear

statement in Moore that a finding of 4.5 kilograms is not inconsistent with an original

finding of “at least 1.5 kilograms.” 582 F.3d at 646.

Judge Jonker improperly applied our precedent from Moore when he determined

that a higher finding of 4.5 kilograms is inconsistent with the original sentencing finding

of “at least 1.5 kilograms.” Based on this incorrect application, the court concluded that

it could not make additional factual findings regarding quantity and that Jimmy Ray was

eligible for a sentence reduction. Accordingly, the district court abused its discretion

when it granted Jimmy Ray’s motion for a sentence reduction. See Curry, 606 F.3d at

327 (“A district court abuses its discretion when it relies on clearly erroneous findings

of fact, or when it improperly applies the law or uses an erroneous legal standard.”

(internal quotation marks and citation omitted)). There is credible evidence in the record

that Jimmy Ray was responsible for more than 4.5 kilograms of crack cocaine; Butler’s

trial testimony and Judge Enslen’s reflections on that testimony during Jimmy Ray’s

sentencing indicate that a preponderance of the evidence establishes that more than

Nos. 11-1296/ 1345/ 1916/ 1450 United States v. Valentine, et al. Page 14

4.5 kilograms of crack cocaine was attributable to Jimmy Ray Valentine. Accordingly,

on remand the district court should determine whether the record shows by a

preponderance of the evidence that Jimmy Ray Valentine was responsible for at least 4.5

kilograms of crack cocaine.

III.

For the foregoing reasons we AFFIRM the district court orders finding Kenneth,

Corey, and Johnny Valentine ineligible for sentence modifications or reductions, and we

REVERSE the district court’s order granting Jimmy Ray Valentine’s motion to reduce

his sentence and REMAND his case to the district court for further proceedings

consistent with this opinion.