United States v. Raul Mercado-Moreno , 869 F.3d 942 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10545
Plaintiff-Appellee,
D.C. No.
v. 1:04-cr-05185-
AWI-1
RAUL MERCADO-MORENO, AKA
Raul, AKA El Ranchero, AKA
Margarito Pacheo Gonzalez, AKA OPINION
Junga, AKA Javier Mercado
Maldonado, AKA Raul Mercado
Moreno, AKA Monster, AKA Raul
Monstruo, AKA Talegas, AKA
Talegon,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted May 18, 2017
San Francisco, California
Filed August 28, 2017
2 UNITED STATES V. MERCADO-MORENO
Before: Richard C. Tallman and Sandra S. Ikuta, Circuit
Judges, and Solomon Oliver, Jr., * Chief District Judge.
Opinion by Judge Tallman
SUMMARY **
Criminal Law
The panel affirmed the district court’s denial of a motion
for reduction of sentence under 18 U.S.C. § 3582(c)(2) in
light of retroactive Sentencing Guidelines Amendment 782,
which raised from 1.5 to 4.5 kilograms the quantity of actual
methamphetamine required to trigger the maximum base
offense level.
The panel held that a district court in § 3582(c)(2)
proceedings may make supplemental findings of drug
quantity if they are necessary to determine the defendant’s
eligibility for a sentence reduction in light of a retroactive
Guidelines amendment, but that in doing so, the district court
may not make supplemental findings that are inconsistent
with the findings made by the original sentencing court.
The Honorable Solomon Oliver, Jr., Chief United States District
*
Judge for the Northern District of Ohio, sitting by designation.
**
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. MERCADO-MORENO 3
The panel held that a district court has broad discretion
in how to adjudicate § 3582(c)(2) proceedings, including
whether to hold a hearing when making supplemental
findings of drug quantity. The panel rejected the defendant’s
argument that the district court was required to hold a
contested hearing when making its supplemental findings.
The panel explained that when the district court does not
consider any evidence outside of the record at sentencing, an
evidentiary hearing will not always be necessary. The panel
rejected the defendant’s contention that the district court was
required to hold a hearing pursuant to U.S.S.G. § 6A1.3,
which applies only in original sentencing proceedings, not in
§ 3582(c)(2) proceedings.
The panel rejected the defendant’s contention that the
sentencing court’s finding that he distributed a total of 4.2
kilograms of methamphetamine was a specific finding of
drug quantity that precluded the district court from engaging
in any supplemental fact-finding. Because the original
sentencing court did not make any findings regarding the
amount of manufactured methamphetamine attributable to
the defendant, it was necessary for the district court to make
those supplemental findings in order to rule on the
defendant’s later motion. The panel held that the district
court’s conclusion that the defendant was responsible for at
least 4.5 kilograms of actual methamphetamine was not
clearly erroneous.
The panel held that the district court therefore did not err
in concluding, without a hearing, that the defendant was
ineligible for a sentence reduction under § 3582(c)(2)
because Amendment 782 did not lower his applicable
guideline range.
4 UNITED STATES V. MERCADO-MORENO
COUNSEL
Sean Riordan (argued) and Ann C. McClintock, Assistant
Federal Defenders; Heather E. Williams, Federal Defender;
Office of the Federal Public Defender, Sacramento,
California; for Defendant-Appellant.
Kathleen A. Servatius (argued), Assistant United States
Attorney; Camil A. Skipper, Appellate Chief; United States
Attorney’s Office, Fresno, California; for Plaintiff-Appellee.
OPINION
TALLMAN, Circuit Judge:
Defendant Raul Mercado-Moreno appeals the district
court’s denial of his motion for a sentence reduction under
18 U.S.C. § 3582(c)(2). Defendant led and managed a large-
scale methamphetamine manufacturing and distribution
enterprise in Eastern California from 2000 until 2004. In
2006, Defendant pled guilty to conspiring to manufacture
and distribute 50 grams or more of methamphetamine. At
sentencing, the court found that Defendant distributed 4.2
kilograms of actual methamphetamine during the course of
the conspiracy. Because the threshold to trigger the
maximum base offense level under the U.S. Sentencing
Guidelines (USSG, or Guidelines) at the time of sentencing
was 1.5 kilograms or more, the sentencing court properly
applied the maximum base offense level without finding the
precise quantity of actual methamphetamine that Defendant
had manufactured during the course of the conspiracy.
Defendant ultimately received 210 months of imprisonment.
UNITED STATES V. MERCADO-MORENO 5
After Guidelines Amendment 782 raised the threshold to
trigger the maximum base offense level from 1.5 kilograms
to 4.5 kilograms, Defendant moved for a sentence reduction
under § 3582(c)(2) before a new district judge since the
original sentencing judge had retired. In determining
Defendant’s eligibility for a sentence reduction under
§ 3582(c)(2), the second district judge found that Defendant
was responsible for at least 4.5 kilograms of actual
methamphetamine during the course of the conspiracy and,
thus, Amendment 782 did not lower his applicable guideline
range. Defendant’s § 3582(c)(2) motion was denied. On
appeal, Defendant argues that § 3582(c)(2) does not
authorize the district court to re-determine the drug quantity
found at his original sentencing or to make new quantity
findings without conducting a hearing.
As a matter of first impression, we hold that when
deciding a § 3582(c)(2) motion, a district court may
supplement the original sentencing court’s quantity findings
only when supplemental findings are necessary to determine
the defendant’s eligibility for a sentence reduction in light of
a retroactive Guidelines amendment. However, the district
court may not make supplemental findings that are
inconsistent with the findings made by the original
sentencing court. We also hold that a district court has broad
discretion in how to adjudicate § 3582(c)(2) proceedings,
including whether to hold a hearing when making
supplemental findings of drug quantity.
There was no abuse of discretion here and we affirm the
district court’s denial of Defendant’s motion for a sentence
reduction under § 3582(c)(2).
6 UNITED STATES V. MERCADO-MORENO
I
A
We first set forth the general statutory framework for
deciding motions under § 3582(c)(2). Ordinarily, courts
may not modify a term of imprisonment once it has been
imposed. 18 U.S.C. § 3582(c). Section 3582(c)(2)
recognizes a narrow exception to the general rule of
sentencing finality. It allows courts to modify a term of
imprisonment to give defendants “the benefit of later enacted
adjustments to the judgments reflected in the [Sentencing]
Guidelines.” Dillon v. United States, 560 U.S. 817, 828
(2010). The Supreme Court has emphasized that
§ 3582(c)(2) permits “only a limited adjustment to an
otherwise final sentence and not a plenary resentencing
proceeding.” Id. at 826.
When deciding whether to reduce a defendant’s sentence
under § 3582(c)(2), courts conduct a “two-step inquiry.” Id.
First, a court must determine the defendant’s eligibility for a
sentence reduction. Id. at 827. A defendant is eligible for a
reduction only if (1) the defendant’s term of imprisonment
was based on a sentencing range that has subsequently been
lowered by a retroactive amendment to the Guidelines, and
(2) the reduction is consistent with USSG § 1B1.10, the
policy statement that implements § 3582(c)(2). See id. at
826–27; USSG § 1B1.10(a)(1) (2014). 1
1
Because § 3582(c)(2) motions must be based on a retroactive
Guidelines amendment, § 1B1.10 functions as a gatekeeper, specifying
which amendments apply retroactively and thus give rise to a sentence
reduction motion under § 3582(c)(2). See USSG § 1B1.10(a)(2)(A), (d)
(2014). A district court must use the version of § 1B1.10 “that is in effect
UNITED STATES V. MERCADO-MORENO 7
To decide whether a retroactive Guidelines amendment
lowers a defendant’s sentencing range, the court must
determine “the amended guideline range that would have
been applicable to the defendant if the [relevant amendment]
had been in effect at the time the defendant was sentenced.”
USSG § 1B1.10(b)(1) (2014). When making this
determination, the court must substitute only the relevant
amendment for the “corresponding guideline provisions that
were applied when the defendant was sentenced” and must
“leave all other guideline application decisions unaffected.”
Id.; see Dillon, 560 U.S. at 827. A defendant is ineligible for
a sentence reduction if the relevant amendment “does not
have the effect of lowering the defendant’s applicable
guideline range.” USSG § 1B1.10(a)(2)(B) (2014).
If a defendant is eligible for a sentence reduction because
the retroactive amendment lowers the defendant’s applicable
guideline range, the court proceeds to the second step of the
inquiry. The court must determine whether, in its discretion,
“the authorized reduction is warranted, either in whole or in
part, according to the factors set forth in” 18 U.S.C.
§ 3553(a) and “under the particular circumstances of the
case.” Dillon, 560 U.S. at 826–27. “Because reference to
§ 3553(a) is appropriate only at the second step of this
circumscribed inquiry, it cannot serve to transform the
proceedings under § 3582(c)(2) into plenary resentencing
proceedings.” Id. at 827.
B
For federal drug offenses, a defendant’s base offense
level generally depends on the type and quantity of drugs
on the date on which the court reduces the defendant’s term of
imprisonment [under] § 3582(c)(2).” Id., cmt. n.8 (2014).
8 UNITED STATES V. MERCADO-MORENO
attributable to the defendant. See USSG § 2D1.1(a)(5), (c)
(2016). The Drug Quantity Table in USSG § 2D1.1(c)
specifies the base offense levels for quantity ranges of
various drugs, with a maximum of 38 levels. In 2014,
Amendment 782 modified the Drug Quantity Table to
reduce by two points the base offense levels for specific drug
types and quantities. See USSG supp. app. C, amend. 782
(Nov. 1, 2014). At the same time, Amendment 788 made
Amendment 782 retroactive for all previously sentenced
defendants. 2 See id., supp. app. C, amend. 788 (Nov. 1,
2014); see also id. § 1B1.10(d) (2014) (specifying all
retroactively applicable Guidelines amendments).
Amendment 782 increased the quantity of actual
methamphetamine required to trigger the maximum base
offense level from 1.5 kilograms to 4.5 kilograms. Id.
§ 2D1.1(c)(1) (2014). Because the maximum base offense
level of 38 still applied to defendants responsible for at least
4.5 kilograms of actual methamphetamine, Amendment 782
had no effect on those defendants. However, Amendment
782 reduced the base offense level to 36 for defendants who
were responsible for at least 1.5 kilograms but less than 4.5
kilograms of actual methamphetamine. Id. § 2D1.1(c)(2)
(2014).
2
Although district courts could hear § 3582(c)(2) motions based on
Amendment 782, any sentence reductions based on Amendment 782
could not become effective until November 1, 2015, at the earliest.
USSG § 1B1.10(e)(1) (2014); see United States v. Navarro, 800 F.3d
1104, 1107–08 (9th Cir. 2015).
UNITED STATES V. MERCADO-MORENO 9
II
A
Defendant led and managed a widespread
methamphetamine manufacturing and distribution enterprise
based in Stanislaus County in Eastern California from 2000
until 2004. Defendant was allegedly the kingpin who headed
the drug trafficking organization. In 2005, the Government
charged Defendant and several others with various drug
offenses in a twenty-eight-count superseding indictment. In
2006, Defendant pled guilty, pursuant to a written plea
agreement under Federal Rule of Criminal Procedure 11, to
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.
As the factual basis for his guilty plea, Defendant
stipulated in his plea agreement and under oath at his plea
colloquy that he distributed more than 4,376.1 grams of
actual methamphetamine in furtherance of the conspiracy.
In addition, he stipulated that he managed other individuals
who were involved in making methamphetamine and caused
them to obtain pseudoephedrine pills used to make
methamphetamine at a laboratory found by law enforcement
on April 12, 2004, in Turlock, California. Specifically,
Defendant stipulated in his written plea agreement that:
Defendant will plead guilty because he is in
fact guilty of the crime set forth in Count Two
of the Fourth Superseding Indictment. The
defendant also agrees that the following are
the facts of this case . . . .
Beginning at a time unknown but no later
than April, 2000, and continuing to June 30,
10 UNITED STATES V. MERCADO-MORENO
2004, in the County of Stanislaus, State and
Eastern District of California, and elsewhere,
the defendant conspired with other
individuals to make methamphetamine. The
defendant knowingly assisted other
individuals to extract pseudoephedrine in
preparation for making methamphetamine in
Stanislaus County in April 2000 and he
knowingly possessed chemicals and
equipment used to make methamphetamine
in Washington State in December 2000.
Thereafter, in 2003 and 2004, the defendant
supplied methamphetamine to individuals
whom he knew would redistribute it.
Specifically, on January 22, 2004, March 31,
2004, April 15, 2004, and May 26, 2004, the
defendant distributed methamphetamine to
other individuals. In all, the defendant
distributed more than 4376.1 grams of
methamphetamine in furtherance of this
conspiracy. In addition, the defendant
managed other individuals who were
involved in making methamphetamine and
caused them to obtain pseudoephedrine pills
in March 2004, and make methamphetamine
at a methamphetamine laboratory found by
law enforcement on April 12, 2004 in
Turlock, California.
At his plea colloquy, Defendant agreed that his plea
agreement should be filed with the court and become part of
the record of his case. Defendant also reaffirmed the factual
basis for his plea under oath:
UNITED STATES V. MERCADO-MORENO 11
THE COURT: Now I want to confirm that
there are facts that will support your [guilty]
plea. Is it true that beginning at a time
unknown, but not later than April of 2000,
continuing to June 30th of 2004, in Stanislaus
County, State and Eastern District of
California and elsewhere, you conspired with
other individuals to make methamphetamine,
you knowingly assisted other individuals
extract pseudoephedrine in preparation for
making methamphetamine in Stanislaus
County in April of 2000, and you knowingly
possessed chemicals and equipment used to
make methamphetamine from the state of
Washington in December of 2000. Is all that
true?
DEFENDANT: Yes.
THE COURT: Thereafter, in 2003 and 2004,
you supplied methamphetamine to
individuals whom you knew would be
distributed. Specifically, on January 22,
2004, March 31, 2004, April 15, 2004, and
May 26, 2004, you distributed
methamphetamine to other individuals. In
all, you distributed more than 4,376.1 grams
of [actual] methamphetamine to carry out the
conspiracy. In addition, you managed other
individuals who were involved in making
methamphetamine and caused them to obtain
pseudoephedrine pills in March of 2004, and
make methamphetamine at a laboratory
found by law enforcement on April 12th,
2004, in Turlock, California; is all that true?
12 UNITED STATES V. MERCADO-MORENO
DEFENDANT: Yes.
Defendant further stipulated to the maximum base offense
level of 38 under the Guidelines, which applied to
defendants responsible for 1.5 kilograms or more of actual
methamphetamine at the time of his sentencing. USSG
§ 2D1.1(c)(1) (2006). Defendant also stipulated to a two-
level enhancement based on his role as “an organizer, leader,
manager, or supervisor in [the] criminal activity.” Id.
§ 3B1.1(c) (2006). 3 And, he stipulated to a term of
210 months of imprisonment. In exchange, the Government
agreed to dismiss the remaining charges against Defendant,
to recommend a three-level reduction based upon his
acceptance of responsibility under USSG § 3E1.1 (2006),
and to recommend that he be sentenced “at the bottom of the
applicable guideline range, but no less than 210 months.”
During his sentencing proceedings, Defendant did not
object to the facts asserted in the presentence investigation
report (PSR), including that law enforcement had also seized
an additional 40 pounds of methamphetamine in solution
from the Turlock methamphetamine laboratory on April 12,
2004. 4 At Defendant’s sentencing hearing in January 2007,
the sentencing court adopted the PSR and found that a “total
4.2 [sic] kilograms of methamphetamine was distributed by
the defendant during the course of the conspiracy.”
3
To qualify under § 3B1.1, “the defendant must have been the
organizer, leader, manager, or supervisor of one or more other
participants” in a criminal activity or must have “exercised management
responsibility over the property, assets, or activities of a criminal
organization.” USSG § 3B1.1, cmt. n.2 (2006).
4
The PSR also described Defendant’s involvement in other
methamphetamine manufacturing activities in April 2000 and December
2000, but did not identify the drug quantities involved in those activities.
UNITED STATES V. MERCADO-MORENO 13
Defendant acknowledges that the sentencing court’s finding
of 4.2 kilograms, rather than 4.3 kilograms, was based on a
typographical error in the PSR. Specifically, the PSR
mistakenly asserted: “According to the plea agreement,
[Defendant] was responsible for the distribution of 4,276.1
grams of methamphetamine during the course of the
conspiracy,” and, “[i]n this case, the defendant and the
Government have agreed that a total of 4,276.1
(4.2 kilograms) grams of methamphetamine was distributed
by the defendant during the course of the conspiracy.”
Despite the court’s reliance on the PSR’s mistaken
assertion, the factual issue as to whether Defendant
distributed “more than 4.3 kilograms” or a “total of
4.2 kilograms” was immaterial at the time of sentencing,
because the threshold required to trigger the maximum base
offense level of 38 at that time was 1.5 kilograms. 5 Because
the sentencing court’s distribution finding was more than
sufficient to trigger the maximum base offense level, the
court made no findings regarding the quantity of
methamphetamine that Defendant manufactured during the
course of the conspiracy. Applying a two-level
enhancement for Defendant’s role in the offense and a three-
level reduction for his acceptance of responsibility then
yielded a corresponding sentencing range of 210 to 262
months. See USSG ch. 5, pt. A (2006). After considering
the 18 U.S.C. § 3553(a) factors, the sentencing court
imposed a term of 210 months’ imprisonment, at the bottom
5
Indeed, the Government observes that the sentencing court’s error
was not corrected because “the parties, the court, or the probation office
either failed to notice [it] or believed it insignificant in light of the . . .
minimum quantity necessary to support the [maximum] base offense
level (1.5 kilograms of actual methamphetamine).”
14 UNITED STATES V. MERCADO-MORENO
of the guideline range, in accordance with Defendant’s plea
agreement and the parties’ stipulations.
B
In June 2015, Defendant filed a § 3582(c)(2) motion for
a sentence reduction, which was assigned to a different
district judge. Defendant argued that Amendment 782
lowered his sentencing range because it raised the threshold
required to trigger the maximum base offense level from
1.5 to 4.5 kilograms and because “the amount of meth actual
for which he was held responsible [was] 4.2 kilograms.”
Thus, he argued, his new base offense level under the revised
Drug Quantity Table was 36. In opposing Defendant’s
§ 3582(c)(2) motion, the Government submitted a chemical
analysis report regarding the materials seized from the
Turlock methamphetamine laboratory on April 12, 2004.
That report, which was not before the original sentencing
court, conservatively estimated that the Turlock “large-scale
methamphetamine manufacturing laboratory [was] capable
of producing 40 pounds of [actual] methamphetamine.”
The district court rejected Defendant’s argument that the
sentencing court’s 4.2-kilogram distribution finding was a
conclusive determination of the total drug quantity
attributable to Defendant. The district court cited the
language in Defendant’s plea agreement stating that “the
defendant distributed more than 4376.1 grams.” It also cited
the additional quantities of methamphetamine not discussed
at sentencing but noted in the PSR, including the 40 pounds
of methamphetamine in solution that was seized from the
Turlock laboratory on April 12, 2004.
The district court then considered the Government’s
chemical analysis report, noting that 40 pounds of actual
UNITED STATES V. MERCADO-MORENO 15
methamphetamine amounted to roughly 18 kilograms. 6 The
district court found that, “[c]onsidering the conservative
estimate that approximately 18 kilograms of actual
methamphetamine could have been produced with the
methamphetamine solution found at the methamphetamine
laboratory discovered on April 12, 2004, and that the
defendant admitted involvement with that facility, the drug
quantity attributable to defendant exceeds 4.5 kilograms of
methamphetamine.” Because Amendment 782 did not alter
Defendant’s applicable sentencing range, the district court
held that he was ineligible for a sentence reduction under
§ 3582(c)(2). The court thus denied Defendant’s motion at
the first step of the § 3582(c)(2) inquiry without reaching the
discretionary second step. This appeal followed.
III
We have jurisdiction under 28 U.S.C. § 1291 to review
the denial of a § 3582(c)(2) motion for a sentence reduction.
United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir.
2009). Section 3582(c)(2) relief is available to defendants
who plead guilty under a plea agreement recommending a
particular sentence as a condition of the plea if “the district
court’s ‘decision to accept the plea and impose the
recommended sentence’ was ‘based on the Guidelines.’”
United States v. Davis, 825 F.3d 1014, 1027 (9th Cir. 2016)
(en banc) (quoting Freeman v. United States, 564 U.S. 522,
534 (2011) (plurality opinion)). We review de novo
“whether a district court has jurisdiction to modify a
sentence under 18 U.S.C. § 3582(c)(2).” United States v.
Spears, 824 F.3d 908, 912 (9th Cir. 2016). And we review
de novo whether a district court deciding a § 3582(c)(2)
6
USSG § 2D1.1, cmt. n.8(D) (2014) (converting 1 pound to 0.4536
kilograms).
16 UNITED STATES V. MERCADO-MORENO
motion may supplement the original sentencing court’s drug
quantity findings. See United States v. Paulk, 569 F.3d
1094, 1095 (9th Cir. 2009) (per curiam). If so, we review
the district court’s denial of the § 3582(c)(2) motion for
abuse of discretion. Chaney, 581 F.3d at 1125.
In reviewing for abuse of discretion, we may affirm the
“district court on any ground supported by the record, even
if the district court’s reasoning differs from our own.”
Preminger v. Principi, 422 F.3d 815, 820 (9th Cir. 2005).
We will reverse only if the district court relied on an
erroneous legal standard or clearly erroneous findings of
fact. Chaney, 581 F.3d at 1125. “We review factual
findings, including a determination of the quantity of drugs
involved in an offense, for clear error.” United States v.
Dallman, 533 F.3d 755, 760 (9th Cir. 2008). Under the clear
error standard of review, if “the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it.” Anderson
v. City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985).
IV
Defendant’s eligibility for a sentence reduction under
§ 3582(c)(2) turns on whether he was responsible for a total
of 4.5 kilograms or more of actual methamphetamine during
the course of the conspiracy. If so, he still receives the
maximum base offense level and Amendment 782 does not
alter his sentencing range—thus precluding him from a
reduction under § 3582(c)(2).
Defendant challenges the district court’s denial of his
§ 3582(c)(2) motion on two grounds. First, he asserts that
§ 3582(c)(2) does not allow the district court to re-determine
the drug quantity found at his original sentencing. He argues
that the sentencing court specifically found that he was
UNITED STATES V. MERCADO-MORENO 17
responsible for 4.2 kilograms and the district court’s
decision contradicts that finding. Second, Defendant
contends that the district court erred by engaging in
supplemental fact-finding on drug quantity without a
hearing.
We hold that a district court in § 3582(c)(2) proceedings
may make supplemental findings of drug quantity if they are
necessary to determine the defendant’s eligibility for a
sentence reduction in light of a retroactive Guidelines
amendment. In doing so, the district court may not make
supplemental findings that are inconsistent with the findings
made by the original sentencing court. We also hold that a
district court has broad discretion in how to adjudicate
§ 3582(c)(2) proceedings, including whether to hold a
hearing when making supplemental findings of drug
quantity.
A
To begin, § 3582(c)(2) instructs courts to determine
whether a retroactive Guidelines amendment lowers a
defendant’s sentencing range. In the case of an amendment
to the Drug Quantity Table, such as Amendment 782, this
analysis hinges on whether the drug quantity attributable to
the defendant either exceeds or falls below the revised
quantity threshold. That inquiry is straightforward where,
for example, the sentencing court found the precise total
quantity of drugs (such as “X kilograms”) attributable to the
defendant. However, a sentencing court’s quantity finding
may sometimes be ambiguous or incomplete when viewed
in the context of a later Guidelines amendment. For
instance, the sentencing court may have attributed a range of
quantities (such as “at least X kilograms”) to the defendant.
Or, as here, the sentencing court may have quantified only
part of the amount for which Defendant was responsible,
18 UNITED STATES V. MERCADO-MORENO
without making a specific finding as to the rest, because that
partial amount supported the maximum base offense level at
the time of sentencing. Typically, in those cases, neither the
court nor the parties anticipate a future Guidelines
amendment that will move the line and require further fact-
finding to determine the defendant’s eligibility for a sentence
reduction under § 3582(c)(2).
In those cases where a sentencing court’s quantity
finding is ambiguous or incomplete, a district court may
need to identify the quantity attributable to the defendant
with more precision to compare it against the revised drug
quantity threshold under the relevant Guidelines
amendment. The Supreme Court indicated that such fact-
finding was permissible in Dillon. See 560 U.S. at 828–29
(stating that “facts found by a judge at a § 3582(c)(2)
proceeding do not serve to increase the prescribed range of
punishment”). We thus join our sister circuits in recognizing
that § 3582(c)(2)’s eligibility inquiry may require a district
court to supplement the original sentencing court’s drug
quantity findings to “determine the amended guideline range
that would have been applicable” to the defendant in light of
a retroactive Guidelines amendment. USSG § 1B1.10(b)(1)
(2014). The Seventh Circuit, for example, held that
nothing prevents the court from making new
findings that are supported by the record and
not inconsistent with the findings made in the
original sentencing determination. Indeed,
new findings may be necessary where, as
here, the retroactive amendment to the
guidelines altered the relevant drug-quantity
thresholds for determining the defendant’s
base offense level.
UNITED STATES V. MERCADO-MORENO 19
United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010). The
Eleventh Circuit also elaborated on the power of courts to
make additional findings consistent with earlier ones: “[If]
a district court found during the original sentence proceeding
that ‘at least X kilograms’ were attributable to the defendant,
it may not find . . . that ‘less than X kilograms’ were
attributable; it may, however, find attributable X kilograms,
or 2X kilograms, or 10X kilograms.” United States v.
Hamilton, 715 F.3d 328, 340 (11th Cir. 2013).
Other courts of appeals have reached the same
conclusion. See, e.g., United States v. Peters, 843 F.3d 572,
577 (4th Cir. 2016) (“[D]istrict courts may make additional
findings on the drug quantities attributable to defendants in
§ 3582(c)(2) proceedings. Such findings must be supported
by the record and consistent with earlier findings.”), cert.
denied, No. 16-8336 (U.S. June 19, 2017); United States v.
Wyche, 741 F.3d 1284, 1293 (D.C. Cir. 2014) (“If the
original sentencing court failed to make a specific drug-
quantity calculation, the resentencing court may have to
make its own quantity finding in order to determine the
defendant’s guideline range.”); United States v. Rios,
765 F.3d 133, 138 (2d Cir. 2014) (observing that district
courts may make “new findings of fact when ruling on a
§ 3582(c)(2) motion” because “new findings are often
necessary where . . . retroactive amendments have altered
the relevant drug-quantity thresholds for determining a
defendant’s base offense level” (citations omitted)); United
States v. Battle, 706 F.3d 1313, 1319 (10th Cir. 2013) (“[A]
district court may look to its previous findings, including any
portions of a PSR adopted by the sentencing court, to make
supplemental calculations of drug quantity . . . if such
calculations are necessary to determine the amended
guideline range that would have been applicable in light of a
retroactive Guideline amendment.” (quotation omitted));
20 UNITED STATES V. MERCADO-MORENO
United States v. Moore, 706 F.3d 926, 929 (8th Cir. 2013)
(“[Section] 1B1.10(b)(1) not only permits, but may often
require, district courts to make findings necessary to resolve
§ 3582(c)(2) motions.”); United States v. Moore, 582 F.3d
641, 646 (6th Cir. 2009) (holding that, where the original
drug quantity determination is not specific enough for the
district court to determine whether a defendant is eligible for
a sentence reduction under § 3582(c)(2), the court may make
new findings of fact that are supported by the record and
consistent with the findings made in the original sentencing
proceedings).
“[A]bsent a strong reason to do so, we will not create a
direct conflict with other circuits.” United States v. Chavez-
Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987). We agree
with our sister circuits and join them in holding that district
courts in § 3582(c)(2) proceedings may make additional
findings on the drug quantity attributable to a defendant if
those findings are necessary to determine the defendant’s
eligibility for a sentence reduction. Such findings must be
supported by the record and cannot contradict any findings
made by the original sentencing court.
B
We also reject Defendant’s argument that the district
court was required to hold a contested hearing when making
its supplemental findings. A district court has broad
discretion in how to adjudicate § 3582(c)(2) proceedings,
including whether to hold a hearing when making
supplemental determinations of drug quantity. See Rios,
765 F.3d at 138; e.g., United States v. Hernandez, 645 F.3d
709, 712–13 (5th Cir. 2011) (holding that “the district court
did not abuse its discretion in refusing to . . . grant an
evidentiary hearing to decide the amount of crack for which
Hernandez was responsible” in light of a retroactive
UNITED STATES V. MERCADO-MORENO 21
amendment modifying the guideline ranges for crack
cocaine offenses), cited with approval in Spears, 824 F.3d at
913. When the district court does not consider any evidence
outside of the record at sentencing, an evidentiary hearing
will not always be necessary.
In addition, we reject Defendant’s contention that the
district court was required to hold a hearing pursuant to
USSG § 6A1.3. Section 6A1.3 applies only in original
sentencing proceedings, and not in § 3582(c)(2)
proceedings. Section 6A1.3 provides that “[w]hen any
factor important to the sentencing determination is
reasonably in dispute, . . . the court shall resolve [it] at a
sentencing hearing in accordance with [Federal Rule of
Criminal Procedure 32(i)].” USSG § 6A1.3(a)–(b) (2016)
(emphasis added). Rule 32 governs the procedures for a
defendant’s original sentencing, and Rule 32(i) sets forth the
procedures that a sentencing judge must follow before
imposing the defendant’s original sentence. See Fed. R.
Crim. P. 32(i)(4)(B), (C). 7
District courts ruling on § 3582(c)(2) motions need not
conduct sentencing hearings under Rule 32 because
§ 3582(c)(2) proceedings are not plenary resentencing
7
The Guidelines’ commentary further reveals that § 6A1.3 applies
only in original sentencing proceedings. See USSG ch. 6, pt. A, intro.
cmt. (“This Part [containing § 6A1.3] sets forth the procedures for
establishing the facts upon which the sentence will be based.” (emphasis
added)); id. § 6A1.3, cmt. (“[L]engthy sentencing hearings seldom
should be necessary”; “In determining the relevant facts, sentencing
judges are not restricted to information that would be admissible at trial”;
“[L]ower evidentiary standard at sentencing permits sentencing court’s
consideration of acquitted conduct” (emphasis added)); see also Stinson
v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the
Guidelines Manual that interprets or explains a guideline is [generally]
authoritative.”).
22 UNITED STATES V. MERCADO-MORENO
proceedings. “By its terms, § 3582(c)(2) does not authorize
a sentencing or resentencing proceeding. Instead, it provides
for the modification of a term of imprisonment by giving
courts the power to reduce an otherwise final sentence in
circumstances specified by the Commission.” Dillon,
560 U.S. at 825 (quotation marks and alterations omitted).
The Supreme Court has emphasized that § 3582(c)(2)
“authorize[s] only a limited adjustment to an otherwise final
sentence and not a plenary resentencing proceeding.” Id. at
826. “Taking the original sentence as given, any facts found
by a judge at a § 3582(c)(2) proceeding do not serve to
increase the prescribed range of punishment; instead, they
affect only the judge’s exercise of discretion within that
range.” Id. at 828 (emphasis added).
Unlike in § 3582(c)(2) proceedings, factual findings
made at a sentencing proceeding may serve to increase the
defendant’s prescribed range of punishment. It thus makes
sense that § 6A1.3 requires sentencing courts to resolve any
disputed factors important to the sentencing determination
“at a sentencing hearing in accordance with Rule 32(i).”
USSG § 6A1.3(b). Here, Defendant’s § 3582(c)(2) motion
to reduce his original sentence sought “only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.” Dillon, 560 U.S. at 825. Thus,
§ 6A1.3 did not require the district court to conduct a Rule
32(i) sentencing hearing to decide his motion.
V
We turn now to whether the district court abused its
discretion in denying Defendant’s § 3582(c)(2) motion by
improperly engaging in supplemental fact-finding or by
resting its decision on a clearly erroneous finding of fact.
See Chaney, 581 F.3d at 1125.
UNITED STATES V. MERCADO-MORENO 23
A
We begin with the framework for making supplemental
findings of drug quantity in § 3582(c)(2) proceedings.
Under the first step of the Dillon analysis, a district court
must determine a defendant’s eligibility for a sentence
reduction by evaluating whether the defendant’s applicable
guideline range would have been lower if the relevant
Guidelines amendment were in effect at the time he was
sentenced. See Dillon, 560 U.S. at 827; USSG
§ 1B1.10(a)(2)(B), (b) (2014). If the record reflects that the
sentencing court made a specific finding regarding the total
quantity of drugs for which the defendant was responsible,
or if the defendant admitted to a specific total quantity, then
the district court must use that quantity and determine
whether applying the retroactive amendment would lower
the defendant’s guideline range. If so, the defendant is
eligible for a sentence reduction and the court proceeds to
the second step of the Dillon analysis.
But, if the sentencing court’s quantity finding was
ambiguous or incomplete, the district court may need to
make additional findings of drug quantity to determine the
defendant’s eligibility for a sentence reduction. To do so,
the district court must determine whether the defendant is
more likely than not responsible for the new quantity
threshold under the retroactive Guidelines amendment. See
United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.
1990) (adopting the preponderance of the evidence standard
of proof for Guidelines issues); e.g., United States v.
Valentine, 694 F.3d 665, 674 n.4 (6th Cir. 2012) (“[I]t is
sufficient for the [district] court to consider the amount of
the new threshold in the retroactive amendment, here
4.5 kilograms, and determine whether a preponderance of
24 UNITED STATES V. MERCADO-MORENO
the evidence in the record indicates that the defendant is
[more likely than not] responsible for that amount.”).
The district court may consider, for example, “the trial
transcript, the sentencing transcript, and the portions of the
presentence report that the defendant admitted to or the
sentencing court adopted.” Valentine, 694 F.3d at 670. And
it may accept as true any facts in a PSR that the defendant
did not object to at the time of sentencing. See United States
v. Scrivner, 114 F.3d 964, 967 (9th Cir. 1997) (“[It] is well
settled that factual findings in a PSR can be accepted as
accurate . . . if a defendant failed to raise objections at the
time of sentencing.”); United States v. Deninno, 29 F.3d 572,
580 (10th Cir. 1994) (“Failure to object to a fact in a
presentence report, or failure to object at the hearing, acts as
an admission of fact.”). However, the district court’s
supplemental findings may not be inconsistent with any
factual determinations made by the original sentencing
court. See, e.g., Rios, 765 F.3d at 138; United States v.
Adams, 104 F.3d 1028, 1031 (8th Cir. 1997) (holding that it
is implicit in § 3582(c)(2) proceedings “that the district court
is to leave all of its previous factual decisions intact when
deciding whether to apply a guideline retroactively”).
Lastly, the district court is not required to find a specific
quantity of drugs. For instance, where materials such as
waste water from an illicit laboratory used to manufacture a
controlled substance “cannot readily be separated from the
mixture or substance that appropriately is counted in the
Drug Quantity Table, the court may use any reasonable
method to approximate the weight of the . . . substance to be
counted.” USSG § 2D1.1, cmt. n.1 (2014) (emphasis
added). And circumstantial evidence may be sufficient to
determine the weight of a useable controlled substance by a
preponderance of the evidence. See United States v.
UNITED STATES V. MERCADO-MORENO 25
Dudden, 65 F.3d 1461, 1471 (9th Cir. 1995). Thus, if the
exact quantity of drugs involved is unclear or cannot be
easily determined, the district court may approximate that
quantity based on circumstantial evidence, making sure to
err on the side of caution, and hold the defendant
accountable for the quantity that he is more likely than not
actually responsible for. Valentine, 694 F.3d at 672, 674 n.6.
B
Applying this analysis to the present case, we first reject
Defendant’s contention that the sentencing court’s finding
that he distributed a total of 4.2 kilograms of
methamphetamine was a specific finding of drug quantity
that precluded the district court from engaging in any
supplemental fact-finding.
Defendant stipulated in his Rule 11 plea agreement and
at his plea colloquy that he distributed more than 4,376.1
grams of actual methamphetamine, not a total of
4.2 kilograms. He also agreed that his plea agreement
should be filed with the sentencing court and become part of
the record of his case. In enacting Rule 11, Congress
“evidenced its intent to require a district court to sentence a
defendant in accordance with the plea agreement.” United
States v. Mukai, 26 F.3d 953, 956 (9th Cir. 1994) (citation
omitted). As Defendant acknowledges, the sentencing
court’s finding of 4.2 kilograms, rather than 4.3 kilograms,
was due to a transpositional error in the PSR upon which the
sentencing court mistakenly relied. At oral argument,
Defendant conceded that 4.3 kilograms would have been the
more accurate figure. We thus analyze the district court’s
decision using the more accurate, 4.3-kilogram figure.
In addition to the 4.3 kilograms of actual
methamphetamine Defendant distributed, he stipulated that
26 UNITED STATES V. MERCADO-MORENO
he “managed other individuals who were involved in making
methamphetamine and caused them to obtain
pseudoephedrine pills [used to] make methamphetamine at a
methamphetamine laboratory found by law enforcement on
April 12, 2004 in Turlock, California.” Defendant did not
object at sentencing to the PSR’s assertion that law
enforcement seized approximately 40 pounds of
methamphetamine in solution from a methamphetamine
laboratory on April 12, 2004. Based on Defendant’s failure
to object, that factual assertion is accepted as true. See
Scrivner, 114 F.3d at 967. 8 Further, it is undisputed that the
4.3 kilograms of actual methamphetamine that Defendant
distributed did not involve the 40 pounds of
methamphetamine in solution that was seized from the
Turlock laboratory on April 12, 2004.
Because the Guidelines at the time of sentencing
required only a finding of 1.5 kilograms to trigger the
maximum base offense level, the sentencing court only
determined the quantity of actual methamphetamine that
Defendant had distributed. It made no findings regarding the
quantity of actual methamphetamine that Defendant was
responsible for manufacturing or conspiring to manufacture
during the course of the conspiracy. Amendment 782 would
lower Defendant’s base offense level, and thus his applicable
8
To the extent Defendant challenges the PSR’s factual assertions,
we reject those arguments. “[A] defendant waives a challenge to a
presentence report by failing to object in the district court.” United
States v. Visman, 919 F.2d 1390, 1394 (9th Cir. 1990); see, e.g., United
States v. Bauer, 84 F.3d 1549, 1563 (9th Cir. 1996) (rejecting the
defendant’s argument that “the amount of marijuana attributed to him in
the presentence report was not supported by the facts” because defendant
failed to challenge the report in the district court); Deninno, 29 F.3d at
580 (“[T]he burden of alleging factual inaccuracies of the presentence
report is on the defendant.”).
UNITED STATES V. MERCADO-MORENO 27
guideline range, only if the total quantity of actual
methamphetamine attributable to him was less than
4.5 kilograms. Thus, it would have been impossible for the
district court to determine Defendant’s eligibility for a
sentence reduction without addressing the quantity of
methamphetamine that Defendant was responsible for
manufacturing during the course of the conspiracy. See
USSG § 1B1.10(b)(1) (2014). Because the original
sentencing court did not make any findings regarding the
amount of manufactured methamphetamine attributable to
Defendant, it was necessary for the district court to make
those supplemental findings in order to rule on Defendant’s
later motion.
C
Having concluded that further fact-finding was not only
permitted but required in order to resolve Defendant’s
motion, we turn now to our review of the district court’s
factual findings. 9 “We review factual findings, including a
determination of the quantity of drugs involved in an
9
Preliminarily, we also reject Defendant’s contention that the
Government cannot argue, and the district court cannot find, an amount
higher than 4.2 kilograms because the government waived a higher
finding by failing to object to the quantity found at the original
sentencing. “[W]aiver is the intentional relinquishment or abandonment
of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993)
(quotation marks omitted). It does not apply where, as here, 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 argue a higher amount later
on. See, e.g., Wyche, 741 F.3d at 1294 (“[T]he Government was not
required to prove—and had no reason to argue—that Wyche was
responsible for any amount of cocaine base over 500 grams. Under these
circumstances, . . . the Government is free to challenge drug quantity.”);
Valentine, 694 F.3d at 674 n.5 (rejecting similar argument).
28 UNITED STATES V. MERCADO-MORENO
offense, for clear error.” Dallman, 533 F.3d at 760. A
factual finding is clearly erroneous when “the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson,
470 U.S. at 753 (citation omitted). If “the district court’s
account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse
it.” Id. at 573–74. “Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Id. “This is so even when the district
court’s findings [are based on] physical or documentary
evidence or inferences from other facts.” Id.1
We first reject Defendant’s argument that the 40 pounds
of methamphetamine in solution seized from the Turlock
laboratory did not constitute “relevant conduct” and thus
may not be considered in calculating his base offense level.
“Types and quantities of drugs not specified in the count of
conviction may be considered in determining the offense
level.” USSG § 2D1.1, cmt. n.5 (2014). To determine a
defendant’s base offense level when the Guidelines specify
more than one, courts consider the defendant’s relevant
conduct. See id. § 1B1.3(a) (2014). Relevant conduct
includes:
(A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the
defendant; and (B) in the case of a jointly
undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken
by the defendant in concert with others,
whether or not charged as a conspiracy), all
reasonably foreseeable acts and omissions of
UNITED STATES V. MERCADO-MORENO 29
others in furtherance of the jointly
undertaken criminal activity,
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense.
Id. § 1B1.3(a)(1) (2014).
“With respect to offenses involving contraband
(including controlled substances), the defendant is
accountable for all quantities of contraband with which he
was directly involved and, in the case of a jointly undertaken
criminal activity, all reasonably foreseeable quantities of
contraband that were within the scope of the criminal
activity that he jointly undertook.” Id. § 1B1.3, cmt. n.2
(2014). However, the requirement of reasonable
foreseeability “does not apply to conduct that the defendant
personally . . . counsels, commands, induces, procures, or
willfully causes.” Id.
According to Defendant’s plea agreement to conspiracy
to manufacture and distribute methamphetamine, and the
stipulations he made under oath at his plea colloquy, the
methamphetamine manufactured at the Turlock laboratory
was “contraband with which [Defendant] was directly
involved,” and the manufacture of that methamphetamine
was conduct that Defendant personally “counseled,
commanded, induced, procured, or willfully caused.” Id.
§ 1B1.3(a)(1)(A), cmt. n.2 (2014); see also Wyche, 741 F.3d
at 1292–93 (“If the defendant plays a managerial role in a
drug conspiracy, coordinates drug distribution with other
managers of the conspiracy and shares in the conspiracy’s
30 UNITED STATES V. MERCADO-MORENO
profits, he may be held responsible for the entire drug
quantity attributable to the conspiracy during the time he was
a participant.”). And if “the offense involved both a
substantive drug offense and [a] conspiracy (e.g., sale of five
grams of heroin and [a conspiracy] to sell an additional ten
grams of heroin), the total quantity involved shall be
aggregated to determine the scale of the offense.” USSG
§ 2D1.1, cmt. n.5 (2014).
Thus, the amount of actual methamphetamine
manufactured at the Turlock laboratory is relevant conduct
that must be considered in determining whether Defendant
is eligible for a sentence reduction in light of Amendment
782.
2
Finally, we turn to the district court’s supplemental
finding that Defendant was responsible for at least
4.5 kilograms of actual methamphetamine during the course
of the conspiracy. Defendant argues that the district court
erred in relying in part on a chemical analysis report that was
not part of the record at sentencing. Even assuming, without
deciding, that the district court erred by considering
materials beyond those that were before the original
sentencing court, we hold that any error was harmless
because 40 pounds of methamphetamine in solution was
seized from the Turlock laboratory, and the district court
needed to find only that this solution contained 200 grams of
actual methamphetamine to meet the threshold for the
maximum base offense level under Amendment 782. 10
In light of this conclusion, we do not decide if the district court’s
10
broad discretion in holding an evidentiary hearing may be more limited
UNITED STATES V. MERCADO-MORENO 31
In light of the record viewed in its entirety, it was not a
close call for the district court to conclude that Defendant, in
addition to distributing 4.3 kilograms of actual
methamphetamine, more likely than not also manufactured
another 200 grams of actual methamphetamine during the
course of the conspiracy. Defendant headed a criminal
enterprise that manufactured and sold high volumes of actual
methamphetamine for a number of years. 11 Based on
Defendant’s leadership role in this high-volume
methamphetamine manufacturing and distribution
conspiracy, and in light of the 40 pounds of
methamphetamine in solution seized from the Turlock
laboratory, the district court’s finding was not clearly
erroneous.
Although the record at sentencing did not contain a
chemical analysis report of the methamphetamine in solution
seized from the Turlock laboratory, the district court may
rely on circumstantial evidence to approximate whether that
solution could more likely than not produce 200 grams of
useable actual methamphetamine. See Dudden, 65 F.3d at
1471; Valentine, 694 F.3d at 672 (“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.” (quotation omitted)). The
when it considers evidence outside of the original sentencing record
which would have made a difference in the outcome.
11
The PSR noted that Defendant was “involved in the drug business
for many years,” and “not only was he involved with distributing
narcotics in the state of California, he was also involved in the drug trade
in the state of Washington. . . . It appears that once the defendant was
caught in Washington, he left that area and moved the operation down to
California.” Defendant did not object to these factual findings at
sentencing.
32 UNITED STATES V. MERCADO-MORENO
court may also “employ alternative means for determining
the base offense level as allowed by the Guidelines.” United
States v. Sprague, 135 F.3d 1301, 1306–07 (9th Cir. 1998).
“For example, the court may approximate the quantity of
[the] controlled substance by using its best estimate of the
production capability of the laboratory where ‘the amount
seized does not reflect the scale of the offense.’” Id. at 1307(citation omitted); see USSG § 2D1.1, cmt. n.5 (2014). “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.” Valentine, 694 F.3d at
672–73 (quotation omitted).
Here, the 40 pounds of methamphetamine in solution
seized from the Turlock laboratory constituted over 18,000
grams of methamphetamine in solution. See USSG § 2D1.1,
cmt. n.8(D) (2014) (converting 1 pound to 453.6 grams).
Even if that amount were a weak solution, it was not clearly
erroneous to approximate that 18,000 grams of a solution
containing methamphetamine could more likely than not
produce at least 200 (or 300) grams of useable actual
methamphetamine. The district court’s conservative finding
was supported by competent evidence in the record and was
“plausible in light of the record viewed in its entirety.”
Anderson, 470 U.S. at 574; see Hernandez, 645 F.3d at 713
n.3 (“Hernandez has not claimed in this appeal that based on
the record and the sources cited by the PSR it could not
reasonably be concluded that he was responsible for more
than 4.5 kg of crack. Under Dillon, that is where our inquiry
ends.”).
Thus, the district court’s conclusion that Defendant was
responsible for at least 4.5 kilograms of actual
methamphetamine was not clearly erroneous. Nor was that
determination contrary to any findings made by the original
UNITED STATES V. MERCADO-MORENO 33
sentencing court, which addressed only the amount that
Defendant had distributed during the course of the
conspiracy, and not the amount that he also manufactured.
We hold that the district court did not abuse its discretion
in concluding, without a hearing, that Defendant was
ineligible for a sentence reduction under § 3582(c)(2)
because Amendment 782 did not lower his applicable
guideline range. See USSG § 1B1.10(a)(2)(B) (2014). 12
AFFIRMED.
12
We note that, even if Defendant were eligible for a sentence
reduction because Amendment 782 lowered his applicable guideline
range, the district court still had discretion—at the second step of the
Dillon analysis—to decline to reduce his sentence based on the
applicable § 3553(a) factors and the circumstances of the case. See
Dillon, 560 U.S. at 826–27.