United States District Court, D. Oregon
Michael H. Simon, United States District Judge
Adolph Spears, Sr. (“Spears”) brings a motion and
supplemental motion under 18 U.S.C. § 3582(c)(2), to
reduce his sentence based on United States Sentencing
Guidelines (“Guidelines”) Amendment 782. Spears
argues that Judge Ancer L. Haggerty, Spears' original
sentencing judge, did not explicitly find that Spears is
responsible for a quantity of cocaine base sufficient to meet
the new threshold quantity of 25.2 kilograms required under
Amendment 782 to qualify for the Guidelines level under which
Spears was originally sentenced. If Spears was not
responsible for that level of cocaine base, then Spears'
applicable Guidelines range would be lower under Amendment
782 and he would be eligible for a sentence reduction. If
Spears was responsible for 25.2 kilograms or more of cocaine
base, then his applicable Guidelines range would not be lower
and he would not be eligible for a sentence reduction.
See United States v. Mercado-Moreno, 869 F.3d 942,
949 (9th Cir. 2017) (“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.'” (quoting U.S.S.G. Manual §
argues that the drug quantity amount for which he is
responsible is ambiguous and the Court cannot determine it
without holding an evidentiary hearing. In considering
whether to reduce a defendant's sentence under §
3582(c)(2), a district court may make supplemental findings
of drug quantity if necessary to determine the movant's
eligibility for a sentence reduction.
Mercado-Moreno, 869 F.3d at 953-54. In so doing,
“if the exact quantity of drugs involved is unclear or
cannot be easily determined, ” a district court
reviewing a motion to reduce a sentence “may
approximate the 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.” Id. at
957-58. A district court, however, “may not make
supplemental findings that are inconsistent with the findings
made by the original sentencing court.” Id. at
948. In resolving any ambiguity relating to drug quantity, a
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.” Id. at 957 (quoting
United States v. Valentine, 694 F.3d 665, 670 (6th
Cir. 2012)). The 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.” Id. at 954.
presentence report (“PSR”) found that one
codefendant purchased cocaine from Spears on 10 to 12
occasions. ECF 2555 at 9 (¶ 25). The first three
transactions involved kilograms and the remaining
transactions involved nine-ounce quantities. Id. The
PSR noted that Spears “owned” four kilograms out
of 11 kilograms of cocaine that were transported in a 1989
Cadillac on November 13, 1997. Id. at 9, 17
(¶¶ 27, 70). The PSR described how, during the fall
of 1997, two other codefendants were distributing ten
kilograms of crack cocaine (a type of cocaine base) per week
for Spears. Id. at 14 (¶ 53). The PSR indicated
that a fourth codefendant estimates that he purchased more
than 200 kilograms of cocaine from Spears. Id. at 16
(¶ 64). The PSR noted that it was established at trial
that the conspiracy converted most of its cocaine to crack
cocaine, and that one kilogram of cocaine yielded slightly
more than one kilogram of crack cocaine. Id. at 18
(¶ 72). The PSR concluded that the conspiracy was
responsible for trafficking hundreds of kilograms of cocaine
base, and this amount can be attributable to Spears because
it was reasonably foreseeable and in furtherance of the
jointly undertaken criminal activity. Id. at 17
(¶ 71). The PSR also concluded that the conspiracy is
responsible for possessing and distributing more than 100
kilograms of crack cocaine. Id. at 18 (¶ 72).
The PSR further concluded that Spears was a leader or
organizer of the conspiracy. Id. (¶ 74).
Finally, the PSR concluded that “the evidence supports
[Spears] is accountable for approximately 100 kilograms of
cocaine base, which is approximately 75 times the minimum
level needed for a base offense level 38.” Id.
at 28 (¶ 139).
objected to many of the factual findings of the PSR, arguing
that they relied on the police reports and not on the
evidence adduced at trial. Spears also objected that he was
not involved in the conspiracy relating to any of the drugs
purchased in Fresno, California, that he was not involved
with any of the 11 kilograms in the 1989 Cadillac, and that
he was not a leader of the conspiracy. At sentencing, Judge
Haggerty stated: “As to the objections by [Spears], I
think I have to resolve all of those against you.” ECF
1829-1 at 30. Judge Haggerty continued, noting that he
believed the evidence regarding Spears' ownership in the
four kilograms of the 11 kilograms in the Cadillac and that
he found “tremendous” and
“overwhelming” evidence “for purposes of
the conspiracy itself and the number of kilograms that are
part of the relevant conduct, for purposes of determining
whether or not that conspiracy manufactured in excess of one
and a half kilograms of crack cocaine.” Id.
Judge Haggerty also found that the evidence clearly showed
that Spears had a leadership role over the conspiracy.
Id. at 31.
written Findings of Fact, in response to Spears'
objection that Spears was responsible for no more than 5-15
kilograms of cocaine, Judge Haggerty noted: “The court
finds that the trial evidence showed that the defendant had
an interest in the 11 kilos of cocaine that was charged in
Count 1.” ECF 2555 at 31. Judge Haggerty stated later
in the Findings of Fact: “Other than those paragraphs
previously amended, clarified or adjusted; or upon which no
findings is necessary; the court adopts the presentence
report referenced in paragraph (2) above, as its own findings
and conclusions.” Id. at 32.
previously filed a § 3582 motion under Amendment 750,
arguing that he did not meet the required 8.4 kilograms of
crack cocaine under that Amendment because the only specific
quantity finding made by Judge Haggerty was 1.5 kilograms.
Judge Haggerty denied this motion on the grounds that Spears
was responsible for more than 100 kilograms of crack cocaine.
ECF 2488 at 3. Judge Haggerty also noted that, although his
written Findings of Fact did not “undermine the
PSR's finding that defendant's conspiracy involved
over 100 kilograms of crack[, ] . . . [a]t the very least the
court found that” Spears had an interest in the 11
kilograms of cocaine in the 1989 Cadillac and those 11
kilograms would be used to make crack. Id. at 4-5.
The Ninth Circuit affirmed based on Judge Haggerty's
findings with respect to the 11 kilograms. United States
v. Spears, 824 F.3d 908 (9th Cir. 2016). The Ninth
Circuit noted that the PSR found that the 11 kilograms from
the Cadillac were converted to crack cocaine, and that one
kilogram of cocaine converts to slightly more than one
kilogram of crack cocaine. The Ninth Circuit also noted that
Judge Haggerty had adopted the factual findings of the PSR as
his own factual findings. Although the Findings of Fact did
not state that the 11 kilograms of cocaine were converted
into crack cocaine, the Ninth Circuit explained:
Spears now emphasizes the fact that the order did not state
that the 11 kilograms would be cooked into crack cocaine.
However, here too it would be nonsensical to conclude that
the sentencing court found otherwise. If the 11 kilograms
were not to be cooked into crack, then Spears'
responsibility for the powder cocaine in the
Cadillac would not have provided any basis for rejecting
Spears' challenge to the PSR's 1.5 kilogram
crack cocaine finding. Furthermore, it is
inexplicable why the court would have made any finding
involving powder cocaine if the cocaine was not to be cooked
into crack. After all, Spears was sentenced based on the drug
quantity thresholds for crack cocaine only, not
powder cocaine. Powder cocaine would be irrelevant to the
court's calculation of Spears' offense level unless
it was going to be cooked into crack cocaine. We decline to
reinterpret the Findings of Fact order in a way that would
make its findings irrelevant to Spears' sentencing.
Id. at 914 (emphasis in original).
makes similar arguments in the pending motions. Spears argues
that the PSR and Judge Haggerty made findings regarding
cocaine, but not crack cocaine. As an initial matter, the
PSR, which Judge Haggerty expressly adopted, made specific
findings that Spears was responsible for approximately 100
kilograms of cocaine base (¶ 139), that the conspiracy
(of which Spears was a leader and for which quantities he was
found responsible) was responsible for “hundreds”
of kilograms of cocaine base (¶ 71), and that that the
conspiracy was responsible for more than 100 kilograms of
crack cocaine (¶ 72). Thus, Spears' argument that
there were no specific findings relating to cocaine base or
crack is unfounded.
similar to the 11 kilograms of cocaine that the Ninth Circuit
found could be interpreted as being converted to crack
cocaine based on other factual findings in the PSR, the PSR
also discussed numerous other incidents of specific amounts
of cocaine. Although the PSR found that “most” of
the cocaine was converted to crack, the volume of cocaine
discussed in the PSR was such that even if only half of it
(which is significantly less than “most”) was
converted to crack, it would still be more than the 25.2
kilograms required under Amendment 782 for Spears'
Guidelines range to be unchanged.
assuming Judge Haggerty's adoption of the statements in
the PSR is not an express finding of drug quantity sufficient
for purposes of Spears' pending motions, the Court makes
its own supplemental finding of drug quantity for purposes of
considering Spears' eligibility for a sentence reduction.
Considering the transcript of the sentencing hearing and the
PSR, and remaining consistent with the findings made by Judge
Haggerty, the Court finds that Spears was responsible for
approximately 100 kilograms of crack cocaine. One codefendant
estimated that he purchased more than 200 kilograms of
cocaine from Spears (¶ 64). As the PSR found, in this
conspiracy most of the cocaine was converted into crack
cocaine. Even at only a 50 percent conversion, that would be
100 kilograms of crack cocaine. Another codefendant estimates
distributing ten kilograms of crack cocaine per week for
Spears during the fall of 1997 (¶ 53). Erring on the
side of caution, assuming “fall” means only eight
weeks, that would be an additional 80 kilograms of crack
cocaine. Another codefendant purchased cocaine from Spears on
10 to 12 occasions and converted it all to crack cocaine.
Thus, the 100-kilogram estimate is conservative given the PSR
findings adopted by Judge Haggerty. Accordingly, Spears'
Guidelines range would not change and he is not eligible for
a sentence reduction under § 3582(c)(2).
motion (ECF 2527) and supplemental motion (ECF 2544) for a
sentence modification under 18 ...