United States v. Kevin Luca

Filing

PER CURIAM OPINION FILED - THE COURT: Bobby E. Shepherd, Morris S. Arnold and Michael J. Melloy (UNPUBLISHED) [4038900] [12-3112]

United States Court of Appeals
For the Eighth Circuit
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No. 12-3112
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United States of America
lllllllllllllllllllll Appellee
v.
Kevin L. Lucas, also known as Nook
lllllllllllllllllllll Appellant
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Appeal from United States District Court
for the District of Nebraska
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Submitted: May 13, 2013
Filed: May 24, 2013
[Unpublished]
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Before SHEPHERD, ARNOLD, and MELLOY, Circuit Judges.
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PER CURIAM.
The district court1 denied Kevin Lucas's motion for a sentence reduction under
18 U.S.C. § 3582(c)(2). Mr. Lucas appeals and we affirm.

1

The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

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In 2004, Mr. Lucas pleaded guilty to conspiring to distribute and to possess
with the intent to distribute crack cocaine. He entered into a plea agreement with the
government in which he admitted responsibility for at least 500 grams but less than
1.5 kilograms of crack, a quantity that directly corresponded to a base offense level
of 36 under the sentencing guidelines then in effect, see U.S.S.G. § 2D1.1 (2004).
After determining that Mr. Lucas had a sentencing range of 235 to 293 months, the
district court sentenced him to 235 months' imprisonment. Four years later, the
Sentencing Commission amended § 2D1.1 to decrease the base offense levels for
crack, and Mr. Lucas relied on the amendment to obtain a sentence reduction under
§ 3582(c)(2), which permits a district court to reduce the sentence of a defendant
whose sentence was based on a guideline range that the Sentencing Commission has
lowered. As a result of the amendment, Mr. Lucas's sentencing range fell, and the
district court reduced his prison sentence to 188 months, the bottom of his new
sentencing range.
The Commission further amended the crack-offense provisions of § 2D1.1 in
2011. See U.S.S.G. Supp. app. C, amend. 750. Under this amendment, Mr. Lucas's
base offense level and, in turn, his sentencing range decreased only if he was
responsible for less than 840 grams of crack. Because neither the parties' plea
agreement nor the court's findings at sentencing attributed a specific drug quantity to
Mr. Lucas, the district court relied on the original presentence investigation report to
make a supplemental finding that he was responsible for 1.25 kilograms of crack, well
over the 840-gram limit. The court then concluded that Mr. Lucas was not eligible
for a sentence reduction because the amendment did not lower his sentencing range.
Mr. Lucas maintains that the court should have relied on the rule of lenity to
find him responsible for 500 grams of crack, the low end of the original agreed-upon
quantity, instead of making an additional finding. But we have recently rejected this
argument and permitted district courts to make additional findings necessary to
deciding a § 3582(c)(2) motion, so long as the findings "are consistent with the
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original sentencing determination and supported by the record." United States v.
Anderson, 707 F.3d 973, 974-75 (8th Cir. 2013) (internal quotation marks and
citations omitted) (per curiam); see United States v. Moore, 706 F.3d 926, 928-29
(8th Cir. 2013).
Mr. Lucas contends, in the alternative, that the court's supplemental finding is
not supported by the record. In making the finding, which we review for clear error,
see United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012), the court properly
relied on facts set out in the PSR because Mr. Lucas filed no objections to them and
confirmed that he had no objections to the PSR when questioned by the court at
sentencing. See United States v. Oaks, 606 F.3d 530, 541 (8th Cir.2010). We believe
that the facts in the PSR sufficiently support the court's drug-quantity determination.
Mr. Lucas pleaded guilty to participating in a nine-month crack conspiracy, and he
reiterated to the probation officer that he was selling drugs during this time. When the
police came to his home at the end of the conspiracy, they found 9 ounces -255 grams -- of crack in a heating vent. Mr. Lucas admitted that he had obtained
9 ounces of crack and an equal amount of powder cocaine three days earlier, had
converted the powder to crack, and had sold 9 ounces of crack. Mr. Lucas also
acknowledged that he had "purchased approximately 1.5 kilos of crack and powder"
"[o]ver the last several months." A police officer involved in the case opined that
Mr. Lucas "may be responsible for approximately two kilograms of cocaine base."
Though Mr. Lucas mentioned powder as well as crack cocaine, he admitted to
converting powder cocaine to crack, to selling crack, and to participating in a ninemonth conspiracy to distribute crack. We conclude that the district court did not
clearly err in finding that Mr. Lucas was responsible for 1.25 kilograms of crack.
Affirmed.
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Date Filed: 05/24/2013 Entry ID: 4038900