United States v. Ronald Robert Evans, Sr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 3, 2020
• Docket: 19-11780
• Status: Unpublished

Opinion

Case: 19-11780 Date Filed: 09/03/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11780 Non-Argument Calendar ________________________

D.C. Docket No. 3:05-cr-00159-TJC-MCR-1

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

RONALD ROBERT EVANS, SR.,

Defendant–Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(September 3, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and BLACK, Circuit Judges. Case: 19-11780 Date Filed: 09/03/2020 Page: 2 of 10

PER CURIAM:

Ronald Evans, Sr. appeals the district court’s order granting him a 1-month

reduction to his 293-month total sentence, pursuant to 18 U.S.C. § 3582(c)(2),

based on Amendment 782 to the Sentencing Guidelines. He asserts that after he

established his eligibility for a sentence reduction, the burden shifted to the

Government to prove the quantity of cocaine base involved in the offense conduct,

but the court erroneously assigned the burden of proving the drug quantity to him.

He contends in the absence of a clear finding by the court as to the specific drug

quantity at sentencing, the district court was required to err on the side of caution

and find he was eligible for the greatest possible sentence reduction, which was a

reduction of up to 53 months. After review, 1 we affirm the district court.

I. BACKGROUND

When Evans was originally sentenced in 2007, Evans’ base offense level

was 38, based on the district court’s finding the evidence from trial demonstrated

Evans was responsible for a drug quantity of 1.5 kilograms or more of cocaine

base. After adding 4 levels for Evans’ conviction for engaging in a continuing

criminal enterprise, see U.S.S.G. § 2D1.5(a), Evans’ total offense level was 42 and

1 We review de novo the district court’s legal conclusions regarding the scope of its authority under § 3582(c)(2), and for clear error the factual findings underlying those legal conclusions. United States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009).

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his criminal history category was I, resulting in a guideline range of 360 months to

life imprisonment. The district court sentenced Evans to 360 months’

imprisonment.

In September 2008, this Court vacated Evans’ sentence and remanded for

resentencing in light of Kimbrough v. United States, 552 U.S. 85 (2007). At

resentencing, the district court addressed the Kimbrough issue as well as a pro se

§ 3582(c) motion filed by Evans, seeking a sentence reduction under Amendment

706. Under Amendment 706, an offense must involve 4.5 kilograms or more

(changed from 1.5 kilograms or more) of crack cocaine to result in a base offense

level of 38.2 Reviewing the evidence at Evans’ original sentencing, the district

court found the record supported that Evans’ drug quantity was more than 4.5

kilograms, making him ineligible for a sentence reduction under Amendment 706,

and Evans’ base offense level remained 38. Nevertheless, under the discretion

provided to it by Kimbrough to consider the “crack/powder disparity,” the district

court resentenced Evans to 293 months’ imprisonment.

2 The base offense level of 38 did not contain an upper limit drug quantity, so a district court was required to find 1.5 kilograms or more (before Amendment 706), or 4.5 kilograms or more (after Amendment 706), of cocaine base for a base offense level of 38 to apply.

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In his instant counseled § 3582(c)(2) motion for a sentence reduction

pursuant to Amendment 782,3 Evans contended the 4.5 kilograms attributed to him

at his 2009 resentencing controlled for purposes of determining his eligibility for

relief. Under the amended Sentencing Guidelines after Amendment 782, the base

offense level for a conviction under 21 U.S.C. § 841(b)(1)(A) involving at least

2.8 kilograms but less than 8.4 kilograms of cocaine base is 34. U.S.S.G.

§ 2D1.1(c)(3). Thus, Evans argued, the 4.5 kilograms attributed to him at

resentencing put him squarely in offense level 34. Because Evans was convicted

of engaging in a continuing criminal enterprise, his base offense level was then

raised by 4. Id. § 2D1.5(a). Evans contended that with a criminal history category

of I and a total offense level of 38, his amended guideline range was 240 4 to 293

months’ imprisonment.

The Government responded that the district court’s finding at resentencing

that the offense involved more than 4.5 kilograms of cocaine base was

insufficiently specific to allow the court to conclude that Amendment 782 lowered

3 Amendment 782 provided a two-level reduction in the base offense levels for most drug quantities listed in the Drug Quantity Table in U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, amend. 782. 4 Although the guideline range is 235 to 293 months’ imprisonment, the mandatory- minimum sentence for a defendant convicted of engaging in a continuing criminal enterprise is 240 months’ imprisonment. 21 U.S.C § 848(a). If the mandatory-minimum sentence is greater than the low end of the guideline range, the low end of the guideline range becomes the mandatory-minimum sentence. U.S.S.G. § 5G1.1(c)(2). 4 Case: 19-11780 Date Filed: 09/03/2020 Page: 5 of 10

Evans’ base offense level to 34. Under the amended Sentencing Guidelines after

Amendment 782, the base offense level for a conviction under 21 U.S.C.

§ 841(b)(1)(A) involving at least 8.4 kilograms but less than 25.2 kilograms of

cocaine base is 36. Id. § 2D1.1(c)(2). The Government urged the court to find

Evans was responsible for at least 8.4, but less than 25.2, kilograms of cocaine

base. The Government argued that with a criminal history category of I, and a total

offense level of 40, Evans’ guideline range was 292 to 365 months’ imprisonment.

The district court granted in part and denied in part Evans’ § 3582(c)(2)

motion. The court noted that everyone agreed Evans was eligible for a 1-month

reduction because he was responsible for less than 25.2 kilograms of cocaine base,

and thus, the issue was whether he was eligible for a further reduction based on a

finding that he was responsible for less than 8.4 kilograms of cocaine base. The

court stated, “[t]he problem in this case is that the Government did not prove by a

preponderance of the evidence at sentencing that the drug weight was 8.4

kilograms or more, but [Evans] has failed to prove that it is less than this amount.”

The court cited our decision in United States v. Hamilton, 715 F.3d 328, 341 (11th

Cir. 2013) in stating that Evans bore the burden of proving he was entitled to a

sentence reduction under the applicable guideline amendment.

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The district court stated that Evans’ argument that the court previously found

he was responsible for 4.5 kilograms 5 ignored the fact the court found the offense

involved “more than 4.5 kilograms.” After examining the sentencing and

resentencing records, the district court could not determine Evans’ drug quantity

with enough specificity to determine the extent to which Amendment 782 lowered

Evans’ guidelines range. Thus, following Hamilton’s instruction that “‘at least

[4.5] kilograms’ is equally consistent with a finding of 8.4 kilograms or more and a

finding of less than 8.4 kilograms,” the district court found Evans was ineligible

for a reduced base offense level of 34. Instead, the district court found Evans was

eligible for a reduced base offense level of 36, making his total offense level 40,

rendering him eligible for a 1-month sentence reduction. In its discretion, the

5 Throughout Evans’ original sentencing, resentencing, and § 3582(c)(2) motions, Evans never offered a drug amount that he was responsible for, other than disputing the Government’s amount. At Evans’ original sentencing, the Government argued the evidence supported Evans was responsible for 10.53 kilograms of cocaine base, but the district court never adopted that weight because it was concerned the Government’s formula for determining the drug quantity was unreliable. Evans argued against the 10.53-kilogram amount, but did not offer an alternative calculation. Nevertheless, the district court found the evidence from trial demonstrated the drug quantity attributable to Evans was more than 1.5 kilograms, which was the necessary finding at the time to yield a base offense level of 38. On resentencing, in deciding Evans’ first § 3582(c)(2) motion, the threshold for receiving relief was 4.5 or more kilograms, and the district court found the evidence at the original sentencing supported that Evans was responsible for 4.5 or more kilograms. While Evans argued for a 1.5-kilogram amount at the resentencing based on the threshold at the original sentencing, he did not offer an exact amount. Similarly, here, Evans argues for the 4.5-kilogram amount based on the district court’s threshold at the resentencing, but does not offer any evidence from the record regarding drug quantity other than district court’s resentencing finding. 6 Case: 19-11780 Date Filed: 09/03/2020 Page: 7 of 10

district court determined that a 1-month reduction was appropriate, and reduced

Evans’ sentence on Count 1 from 293 to 292 months’ imprisonment.

II. DISCUSSION

A district court may modify a defendant’s term of imprisonment if the

defendant was sentenced based on a sentencing range that has subsequently been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). When the

district court considers a § 3582(c)(2) motion, it must first recalculate the guideline

range under the amended guidelines. United States v. Bravo, 203 F.3d 778, 780

(11th Cir. 2000). When recalculating the guideline range, the court can only

substitute the amended guidelines and must keep intact all other guideline

decisions made during the original sentencing. Id. A defendant is eligible for a

sentence reduction under § 3582(c)(2) when an amendment listed in U.S.S.G.

§ 1B1.10(d) lowers the guideline range that was calculated by the sentencing court

prior to any departure or variance. U.S.S.G. § 1B1.10, comment. (n.1(A)). The

court is prohibited from reducing a defendant’s sentence to less than the minimum

of the amended guideline range. Id. § 1B1.10(b)(2)(A).

A § 3582(c)(2) proceeding does not constitute a de novo resentencing, and

“all original sentencing determinations remain unchanged with the sole exception

of the guideline range that has been amended since the original sentencing.”

Bravo, 203 F.3d at 781. A defendant has the burden of establishing that a

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retroactive amendment actually lowered his guideline range. United States v.

Hamilton, 715 F.3d 328, 337 (11th Cir. 2013).

In Hamilton, we vacated the denial of a defendant’s § 3582(c)(2) motion

brought pursuant to Amendment 750 6 and remanded to the district court for an

accurate determination of the defendant’s original drug quantity. 715 F.3d

at 339-41. We determined the district court’s finding the defendant was

responsible for “at least 1.5 kilograms” of cocaine base at the sentencing hearing

was not specific enough to support any conclusion about whether the defendant

was entitled to a reduction under Amendment 750. Id. at 340. In our instructions

on remand, we directed the district court to determine “what drug quantity

findings it made, either explicitly or implicitly, at Hamilton’s original sentencing

hearing.” Id. We instructed the district court to examine the record to determine

whether it made any other drug quantity findings that resolved the issue of whether

Hamilton was responsible for more or less than 8.4 kilograms. Id.

Next, if the district court’s original finding was limited to “at least 1.5

kilograms,” we stated that finding was “not specific enough to support any

conclusion about whether Amendment 750 lowered Hamilton’s base offense level

because ‘at least 1.5 kilograms’ is equally consistent with a finding of 8.4

6 Amendment 750 raised to 8.4 kilograms (from 4.5 kilograms) the minimum amount of crack cocaine necessary to establish a base offense level of 38. See Hamilton, 715 F.3d at 336. 8 Case: 19-11780 Date Filed: 09/03/2020 Page: 9 of 10

kilograms or more and a finding of less than 8.4 kilograms.” Id. If the district

court’s findings were limited to “at least 1.5 kilograms,” the court would have to

go further and examine the entire record available at sentencing to see if it could

make any further findings that would resolve the issue. Id. We instructed that the

district court should not refer to any material that was not available at the original

sentencing hearing. Id. We stated if the district court was unable to determine the

drug quantity with enough specificity to allow it to determine whether Hamilton

was eligible for a sentence reduction under Amendment 750, then Hamilton was

ineligible for § 3582(c)(2) relief. Hamilton, as the movant, bore the burden of

showing that his original guideline range would have been lower if

Amendment 750 had been in effect at the time of his original sentencing, and if he

could not make that showing, the court did not have authority to reduce Hamilton’s

guideline range. Id. at 340-41.

The district court did not err in concluding Evans was ineligible for a

sentence reduction beyond the 1-month reduction he received. The court’s prior

drug quantity findings were insufficiently specific to show Evans’ drug quantity

was less than 8.4 kilograms of cocaine base. See Hamilton, 715 F.3d at 340.

Hamilton makes no distinction between a movant having the burden to show he is

entitled to a reduction under the Amendment and showing the extent of the

reduction. To show he was eligible for a sentence reduction of up to 53 months,

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Evans bore the burden to show the applicable quantity of cocaine base was at least

2.8 kilograms but less than 8.4 kilograms of cocaine base, resulting in an amended

guideline range of 240 to 293 months’ imprisonment.7 See id. at 340-41; U.S.S.G.

§ 2D1.1(c)(3), 5G1.1(c)(2); 21 U.S.C. § 848(a). At Evans’ 2009 resentencing, the

court found the applicable drug quantity was “4.5 kilograms or more” of cocaine

base. That finding is as compatible with a finding that Evans was responsible for

less than 8.4 kilograms of cocaine base as it is with a finding that he was

responsible for at least 8.4 kilograms of cocaine base. See Hamilton, 715 F.3d at

340. Importantly, as the movant with the burden, Evans has not pointed to any

evidence from his sentencing that established a drug quantity of less than 8.4

kilograms, the court never made such a finding, and nothing in the record

affirmatively suggests the attributable drug quantity was less than that amount.

Therefore, because the court properly applied Hamilton and nothing in the record

suggests the court clearly erred in finding the drug quantity was 4.5 kilograms or

more of cocaine base, it did not err in concluding that Evans was eligible for only a

1-month reduction in his sentence. Accordingly, we affirm the district court.

AFFIRMED.

7 We reject Evans’ argument that Hamilton’s statement regarding the burden borne by a § 3582(c)(2) movant is dicta. Hamilton’s directions to the district court regarding the movant bearing the burden of showing his entitlement to a reduction were part of the instructions to the district court upon remand, were necessary to deciding the case, and were therefore not dicta. See United States v. Eggersdorf, 126 F.3d 1318, 1322 n.4 (11th Cir. 1997) (explaining language in an opinion not necessary to deciding the case then before the court is dicta). 10