United States v. Ernesto McKinney
464 F. App'x 444
6th Cir.2012Background
- McKinney pleaded guilty in 2004 to conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana, plus knowing possession of unregistered firearms; a dismissed count related to a destructive device carried a potential 30-year term if convicted.
- A plea agreement included dismissal of the Striker-12/Streetsweeper charge in exchange for cooperation.
- At sentencing, more than 1.5 kg of cocaine base yielded a base offense level of 38; total offense level was 37 with CH IV, producing a guideline range of 292–365 months.
- McKinney was sentenced to 292 months on drugs and 120 months on firearms, to run concurrently; the government later moved for a Rule 35(b) reduction for cooperation, which the court granted to 235 months.
- Amendment 706 (Nov. 1, 2007) retroactively altered base levels for crack cocaine quantities, so >4.5 kg now produced the highest base level; Amendment 713 (Mar. 3, 2008) followed.
- McKinney filed a pro se § 3582(c)(2) motion for a reduced sentence under Amendment 706; the SMR advised he was ineligible because his PSR showed >4.5 kg, keeping the base level at 38; a second Rule 35(b) motion followed, and the case was reassigned for Judge review; the sentencing judge ultimately found a new quantity determination (more than 4.5 kg) but applied it in a way consistent with Moore and Blackmon, denying § 3582(c)(2) relief and granting Rule 35(b) reduction to 214 months; this decision was appealed and affirmed by the Sixth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McKinney is eligible for § 3582(c)(2) relief after Amendment 706. | McKinney argues Dillon procedure followed; ambiguity in the district court's step-two/step-one reasoning. | The district court correctly denied eligibility at step one based on the undisputed PSR showing >4.5 kg. | Eligible only if amendment reduces guideline range; here it did not, so not eligible. |
| Whether the district court properly determined the drug quantity informing the base level. | McKinney asserts no clear link to >4.5 kg; argues lack of explicit PSR paragraphs referenced. | Undisputed PSR facts (Paragraphs 170-171) establish >6 kg; McKinney did not object at sentencing. | District court’s quantity finding valid; found >4.5 kg based on undisputed PSR facts. |
| Whether Moore/Blackmon control the denial of relief under § 3582(c)(2). | Meant to limit relief based on newly found quantities; argues inconsistency with original sentencing. | Moore/Blackmon control; higher quantity not inconsistent with original finding; denial proper. | Moore and Blackmon support denial of § 3582(c)(2) relief. |
| What standard of review applies on appeal of § 3582(c)(2) decisions. | Appeal challenges whether Dillon two-step framework was applied. | Court reviews eligibility de novo and abuse of discretion for discretion on § 3553(a) factors if eligible. | De novo review for eligibility; abuse of discretion for discretion on reduction. |
Key Cases Cited
- Moore v. United States, 582 F.3d 641 (6th Cir. 2009) (definitive link between 4.5 kg and eligible quantity; remand for lack of direct link in Moore)
- Blackmon v. United States, 380 F. App’x 498 (6th Cir. 2010) (affirmed denial where facts showed more than 4.5 kg of cocaine base)
- United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc; failure to object binds as undisputed PSR facts)
- Dillon v. United States, 560 U.S. 817 (2010) (two-step framework for § 3582(c)(2) proceedings)
- United States v. Watkins, 625 F.3d 277 (6th Cir. 2010) (de novo review of eligibility; abuse of discretion for discretion step)