Crack Resentencing Properly Denied Based on Court's Calculation of New Drug Amount

U.S. v. Valdez, 2009 WL 929921 (4/8/09) (unpub'd) - An unusual 18 USC § 3582(c)(2) case that calls into question the 10th's claim that those cases don't involve a real resentencing. When the defendant was initially sentenced, the district court found 1.5 kg or more of crack was involved, pursuant to the parties' stipulation. That put the defendant at the highest base offense level at the time--38. The defendant sought resentencing because the amended crack guidelines placed 1.5 kg at base offense level 36. But the 10th says the district court was right to calculate the drug amount as 4.5 kg or more, putting the base offense level back at 38, based on the uncontested statements in the PSR, which the initial court had adopted. As a result, the defendant's guideline range was not lowered and therefore § 3582(c)(2) did not apply. The 10th justifies this procedure on the ground that the first court had no need to make a separate explicit quantity calculation because the defendant was already at the highest level. Now that it mattered, the § 3582(c)(2) court could make a finding based on the PSR the first court had adopted. But isn't it also true the defendant had no need to object to the initial PSR and might have a need now?