United States v. Andrew Kennedy
722 F.3d 439
D.C. Cir.
2013
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Docket

UNITED STATES of America, Appellee v. Andrew KENNEDY, Appellant.

No. 12-3003.

United States Court of Appeals, District of Columbia Circuit.

Decided July 12, 2013.

722 F.3d 439

Argued March 18, 2013.

The FAA now acknowledges that the correct fuel price yields a cost increase of as much as $354 per flight. See Resp‘t‘s Br. at 47-48. Although this is a larger increase than the original estimate, it is not significant in relation to the total cost of a helicopter flight, especially when compared with the cost of travel by rail or by car. The FAA‘s conclusion that the increase would be passed on to paying customers, based on the high value they place on their time, remains reasonable. Although a court can affirm agency action only on grounds provided by the agency, see

;
, this requirement gives way here “when there is not the slightest uncertainty as to the outcome of a proceeding on remand,”
(internal alteration and quotation marks omitted).

HAI further objects that the FAA used an incorrect estimate of the number of small entities that would be affected by the Final Rule. The FAA estimated that 35 small entities would be affected based on the number of commercial helicopter operators who were members of the Council. Final Rule, 77 Fed.Reg. at 39,919. According to FAA counsel, the Council is the “large membership organization for ... helicopter operators in this region,” Oral Arg. Tr. at 29, and the Council presented to the FAA that it “currently represents over 94% of the helicopter operators and businesses supporting helicopters in the New York Tri-State area, the majority of whom will be impacted directly by the proposed rule,” Comments of the Eastern Region Helicopter Council at 1 n. 1 (June 25, 2010). The Council estimated over 100 small entities used the North Shore Route, see id. at 15-16, but then, as now, provided no evidence of how it arrived at that figure. An unsubstantiated estimate is insufficient to call the FAA‘s figure into question.

To the extent HAI contends that the FAA violated Executive Order 12,866, 58 Fed.Reg. 51,735 (Sept. 30, 1993), and Department of Transportation Order 2100.5 (May 22, 1980), both of which require that the agency perform cost benefit analyses for each proposed regulation, neither creates private rights, nor is an agency‘s failure to comply with these orders subject to judicial review. See

.

Accordingly, we deny HAI‘s petition for review.

Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant.

With him on the briefs was A.J. Kramer, Federal Public Defender.

Jay Apperson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Robert Okun, Assistant U.S. Attorneys.

Before: HENDERSON, GRIFFITH, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

More than twenty years after his conviction for trafficking crack cocaine, Andrew Kennedy now claims, for the first time, that the judge who sentenced him failed to determine the quantity of drugs he possessed. Kennedy raises this claim in a proceeding to reduce his sentence under 18 U.S.C. § 3582(c)(2). We conclude that the district court did not err when it refused to revisit this settled factual finding.

I

Kennedy directed a crack cocaine trafficking ring in Washington, D.C., in the late 1980s. A jury convicted him on counts related to the possession and distribution of crack. After trial, Probation Services prepared a Pre-Sentence Investigation Report (PSR) based on “the seized and analyzed cocaine base (crack)” which “total[ed] 380.92 grams.” This amount falls near the middle of the then-applicable drug quantity range (150 to 499 grams) that yielded a base offense level of 34 (to which was added a 4 point upward enhancement because Kennedy was the leader of a conspiracy) and resulted in a sentencing range of 292-365 months. At the sentencing hearing, Kennedy‘s counsel “conceded that the calculation ... is correct in terms of ... the amount of drugs involved in the case.” Tr. 2/21/90 at 5. When Kennedy spoke, he maintained his innocence of the crimes, but did not challenge the drug quantity in the PSR. The district court sentenced Kennedy to 328 months’ imprisonment, “about in the middle of the guidelines.” Tr. 2/21/90 at 16.

Kennedy appealed his conviction and sentence to this court arguing that there was insufficient evidence to sustain his conviction and the leadership enhancement. Kennedy did not challenge the drug quantity finding that informed his base offense level. See

(unpublished) (per curiam). We affirmed the district court and noted that “[i]n imposing the sentence, the District Court appears to have relied on the presentence report.”

In November 2007, the Sentencing Commission lowered the base offense level for crack cocaine offenses, UNITED STATES SENTENCING GUIDELINES MANUAL app. C, amend. 706, 711 (Nov. 1, 2007), and later made that change retroactive. UNITED STATES SENTENCING GUIDELINES MANUAL supp. to app. C, amend. 713 (Nov. 1, 2009). The district court granted Kennedy‘s § 3582(c)(2) motion, lowering his offense level to 36 and reducing his sentence to 293 months.

In November 2011, the Sentencing Commission again retroactively reduced the Guidelines ranges for crack cocaine offenses. See UNITED STATES SENTENCING GUIDELINES MANUAL supp. to app. C, amend. 750 (Nov. 1, 2011); U.S.S.G. § 2D1.1 (2012). Once again, Kennedy moved to reduce his sentence under § 3582(c)(2). But this time, Kennedy took a new tack. Kennedy argued that the sentencing court had never made a finding on the quantity of drugs he possessed. The district court denied his motion, finding as a matter of fact that the sentencing judge had implicitly adopted the drug quantity, 380.92 grams, reported in the PSR. Kennedy now appeals.

We have jurisdiction under 28 U.S.C. § 1291 and review the district court‘s factual finding for clear error. 18 U.S.C. § 3742(e). We review the district court‘s decision to deny Kennedy‘s § 3582(c)(2) motion for abuse of discretion.

.

II

District courts retain broad authority to control § 3582(c)(2) proceedings.

(stating that “[t]he district court has substantial discretion in adjudicating sentence-reduction motions under § 3582(c)(2) and our review is deferential” (emphasis added) (citation omitted));
(stating that “[d]istrict courts have broad discretion in how to adjudicate § 3582(c)(2) proceeding[s]” (emphasis added)). And as the Supreme Court has observed, § 3582(c)(2) hearings are “limited [in] nature,”
, and are not “plenary resentencing proceedings.” Id. at 2692. A § 3582(c)(2) hearing is not a license for the defendant to re-litigate his sentence wholesale or challenge previously adjudicated aspects of his conviction. A § 3582(c)(2) proceeding is, instead, a straightforward application of changed sentencing law to established facts. See id. at 2691-92. As such, the district court may decline to reopen settled factual matters challenged in a § 3582(c)(2) motion. See id. at 2692.

The district court found that the sentencing judge acted “in accordance with the presentence report in that guideline range, which by inference means that he accepted the amount of—the quantity of drugs applicable to [the defendant] as appropriate.... [T]he finding is consistent with the findings made in the original sentencing determination....” 1/13/12 Tr. at 27-29. Examining the transcript of the sentencing hearing, the district court reached the only plausible conclusion: although the sentencing court did not state on the record that it was adopting the drug quantity recommendation included in the PSR, it implicitly adopted that recommendation by determining a base offense level of 34. That finding by the § 3582(c)(2) court was not clearly erroneous. In fact, we previously said as much on direct appeal.

(“In imposing the sentence, the District Court appears to have relied on the presentence report.“). And, as the § 3582(c)(2) court surely knew, no explicit finding by the original sentencing court was needed, because defense counsel did not object at sentencing to the drug quantity found in the PSR. See
(stating that “a sentencing court may rely on undisputed facts in a presentence report“). Quite the contrary: defense counsel explicitly conceded that the drug quantity was correct. Where a defendant does not challenge the facts in a PSR, the district court does not err in adopting those facts. Id. at 438. Reviewing the record in the § 3582(c)(2) hearing, the district court determined that the sentencing court implicitly adopted the PSR. That finding was not clearly erroneous.*

Notwithstanding his counsel‘s concession, Kennedy now claims that he did challenge the drug quantity in the PSR at sentencing. Kennedy bases his argument on statements he made during the hearing, in which he maintained that his drug trafficking was less extensive than what the government had proven at trial. But Kennedy‘s protestations of limited culpability fall far short of the “clear and specific objection” we require “to place a factual assertion [contained in the PSR] in dispute.”

. A general challenge to Kennedy‘s conviction is not a specific challenge to the quantity of drugs for which the PSR indicated he was responsible. The sentencing court did not—and need not—treat it as such.

Kennedy had the opportunity to challenge the facts contained in the PSR at sentencing, and he declined to do so. He again declined to raise the argument on direct appeal. The district court‘s finding that the drug quantity contained in the PSR was implicitly adopted by the sentencing court was not clear error, and the decision to deny the § 3582(c)(2) motion was not an abuse of discretion. “‘A § 3582(c)(2) motion is not the appropriate vehicle for raising issues related to the original sentencing.’ Those are arguments for direct appeal and are not cognizable under § 3582(c)(2).”

(quoting
) (alteration omitted).

Other circuits have likewise declined to allow defendants to reopen the issue of drug quantity in these hearings. See

(stating that “[the defendant] may not relitigate the issue of drug quantity in a § 3582(c)(2) motion.“);
(stating that “[the defendant] cannot use § 3582(c)(2) to collaterally attack his sentence [by challenging drug quantity].“); see also
(holding that the district court did not abuse its discretion in refusing to grant an evidentiary hearing on drug quantity raised for first time in a § 3582(c)(2) motion). It was no abuse of discretion for the district court to refuse to do so here.

III

For the foregoing reasons, we affirm the district court‘s denial of Kennedy‘s motion to reduce his sentence.

So ordered.

Notes

*
Because we hold that it was not clearly erroneous for the district court to find that the sentencing court implicitly adopted the drug quantity in the PSR, we need not consider the district court‘s alternative holding, namely, a finding of drug quantity in the first instance.
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