Denial of Crack Resentencing Relief Emphasizes Need to Contest PSR "Facts" at Original Sentencing

U.S. v. Bruner, 2013 WL 1150265 (3/21/13) (Okl.) (unpub'd) - In a 18 USC § 3582(c)(2) proceeding, the district court had the power to make a supplemental drug-quantity calculation that precluded a reduction based on the crack amendments. The district court originally found that the drug quantity involved was between 20 and 35 grams of crack. The uncontested PSR indicated there was one transaction involving 28.8 grams and another for 6.4 grams. If the drug quantity was less than 28 grams the defendant would have been entitled to a reduction in his offense level and thus the guideline range under § 3582(c)(2). The district court found based on the PSR that the quantity was at least 28 grams and so no reduction was allowed. The 10th holds that, given the defendant is considered to have admitted the PSR quantity findings because he didn't contest them originally, the PSR provided a factual basis for the district court to make a supplemental quantity finding. This did not constitute a reopening of the original sentencing. The 10th notes that it is still undecided in the 10th whether a district court can engage in new fact-finding to determine the amended guideline range under § 3582(c)(2).