United States of America v. Buffington

Filing 18

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 4/12/2017. Mailed notice (eaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CALVIN BUFFINGTON,
Petitioner,
Case No. 16 C 8632
v.
Judge Harry D. Leinenweber
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Petitioner

Calvin

Buffington’s

(“Buffington”)

Motion

for

Relief under 18 U.S.C. § 3582(c)(2) [ECF No. 1] is denied.
I.
This

case

raises

BACKGROUND

the

question

of

what

to

do

when

a

defendant’s Presentence Investigation Report (“PSR”) adopted by
the Court in sentencing turns out to be internally inconsistent.
The answer matters for Buffington because, if one drug quantity
from the PSR is used as the factual basis for his original
sentence, then he is eligible for a sentence reduction under 18
U.S.C. § 3582(c)(2).

But if another, irreconcilably different

drug quantity from the same report is used, then his sentence
must stand as is.
To begin near the beginning, in 2011, this Court sentenced
Buffington

to

a

prison

term

of

238

months

running a wholesale drug distribution ring.

for

his

role

in

See, United States

v. Buffington, No. 07-CR-00410, ECF No. 1006 (Judgment) (N.D.
Ill. Mar. 18, 2011).

Evidence before the Court established that

Buffington was the leader of the enterprise and that his scheme
sucked in the people closest to him, all of whom were charged
and sentenced as participants in the organization.

Buffington’s

co-conspirators

him

siblings

in

included

his

difficult

mother,

who

raised

circumstances;

his

and

brother,

his
whom

Buffington knew to be a crack addict; his cousins; a girlfriend,
a

college

buddy,

individuals

were

and
the

various
mothers

others.

of

(Among

Buffington’s

the

uncharged

three

children,

whom the Government said Buffington used to funnel the illicit
funds of his criminal enterprise.)
The

enterprise

operation.
quantities

itself

Buffington
of

drugs,

lasted for years.

was

and

no

his

running

a

“dime

cohorts

bags

on

dealt

trafficking

in

a

corner”

wholesale

organization

that

During the life of the enterprise, Buffington

– and others at his direction – stored, packaged, processed,
restocked, moved, sold, and otherwise distributed cocaine and
heroin across state lines from Chicago to Detroit.
The

exact

amount

of

drugs

for

which

Buffington

responsible is important for the present Motion.

was

During the

sentencing hearing, however, the Court did not commit to any
particular drug quantity.

The closest the Court came to stating
- 2 -

a

numerical

value

was

when

it

said,

right

before

imposing

sentence, that “the nature and circumstances of the offense”
were “very, very, very serious,” “involving perhaps up to 1,000
kilograms of cocaine.”

See, Buffington, No. 07-CR-00410, ECF

No. 1074 (S. Tr.) at 52:13-18.

Earlier in the proceeding, the

Court stated that it had received the PSR and asked the parties
if they thought the report was accurate.

Neither Buffington nor

the Government disputed the drug quantities found in the report.
Both agreed that based on the amounts involved, Buffington’s
base offense level was 38.
The PSR, however, contained three different sets of numbers
as to the drug quantities.

First, the report broke down in

detail the amount of drugs that Buffington received from his
known suppliers during the period stretching from 2003 to 2007.
This summed up to 978 kilograms (kg) of cocaine and 3 kg of
heroin.

As converted to a common unit, 978 kg of cocaine and

3 kg of heroin equaled 198,600 kg of marijuana.

See, 18 U.S.C.

App. § 2D1.1, Drug Equivalency Tables (stipulating that 1 gram
(g) cocaine = 200 g marijuana and 1 g heroin = 1 kg marijuana).
Second, and irreconcilable with the first set of numbers, the
PSR stated that Buffington’s offense level was 38 “because the
amount

of

which

the

controlled
defendant

substances
is

involved

accountable
- 3 -

is

in

the

offense

approximately

for
364

kilograms of cocaine and 1,800 grams of heroin.”

Buffington v.

United States, 16-CV-08632, ECF Nos. 1 at 3-4 (Motion) & ECF
No. 8 (Gov’t Resp.) at 3.
controlled
marijuana.”

substances
Id.

But

are

Third, the PSR stated that “these
equivalent

neither

pair

to
of

180,411
numbers

mentioned computed to 180,411 kg of marijuana.

kilograms
that

the

of
PSR

As noted, 978 kg

of cocaine and 3 kg of heroin were equivalent to 198,600 kg of
marijuana.

At the same conversion rate, 364 kg of cocaine and

1,800 g of heroin equaled 74,600 kg of marijuana.
Despite the discrepancies, the parties made no objection to
the drug quantities reported.

This probably was due to the fact

that under the then-prevailing Sentencing Guidelines, any amount
of cocaine over 150 kg would put a defendant at an offense level
of 38.

See, 18 U.S.C. app. § 2D1.1, Drug Quantity Table (2011).

Thus, the smaller reported amount of 364 kg of cocaine alone
would make Buffington a level 38 offender, the base level at
which

he

was

sentenced.

(To

be

precise,

Buffington

sentenced at a final-computed offense level of 39.
because

on

a

base

level

of

38,

Buffington

got

a

was

This is
four-level

increase for being the leader in a criminal activity involving
five or more persons and a three-level decrease for accepting
responsibility.

Because these adjustments are not relevant for

the current motion, the Court focuses on the base level.)
- 4 -

In

the Statement of Reasons issued after the sentencing hearing,
the Court checked the box indicating that it adopted the PSR in
full without change.
Due

to

discrepancies
matter.

In

a

change

in

the

2014,

to

the

Sentencing

Guidelines,

the

in

now

drug

quantities

found

the

the

Sentencing

Commission

PSR

promulgated

Amendment 782, since then made retroactively applicable, that
served to lower the offense levels for certain drug crimes.
amendment

accomplished

this

by

raising

the

threshold

The
drug

quantity that an offender needs to be sentenced at a particular
level.

Now, a person must be responsible for at least 450 kg of

cocaine to be a level 38 offender, whereas a person responsible
for less than 450 kg of cocaine but more than 150 kg is a level
36 offender.

See, 18 U.S.C. app. § 2D1.1, Drug Quantity Table.

Buffington thus argues that, if sentenced today, he would
be a level 36 offender, and not a level 38.

On this basis

alone, he presses for a 28-month reduction in his sentence.

The

argument, however, hinges on Buffington being “credited” with
the lowest of the three drug quantities that the PSR reported.
Only if this quantity (364 kg of cocaine and 1,800 g of heroin)
is used would Buffington be a level 36 offender.

Buffington’s

base offense level would remain unchanged at 38 if either of the

- 5 -

two other quantities (978 kg of cocaine and 3 kg of heroin; or
180,411 kg of marijuana) is adopted instead.
For

the

reasons

detailed

below,

the

Court

finds

that

Amendment 782 had no effect in lowering Buffington’s guideline
range.

Accordingly,

the

Court

Buffington a sentence reduction.

is

not

authorized

to

grant

Furthermore, even if it had

the authority, the Court would exercise its discretion and deny
Buffington

the

28-month

reduction

in

sentence

he

seeks.

Succinctly put, Buffington has not supplied the Court with any
reason to lessen his punishment since it first sentenced him.
II.

ANALYSIS

The present Motion is brought under 18 U.S.C. § 3582(c)(2).
This

section

of

the

penal

code

provides

federal

courts

with

limited authority to reduce a sentence of imprisonment after it
has been imposed.

See, 18 U.S.C. § 3582(c); Dillon v. United

States, 560 U.S. 817, 819 (2010). It states,
[I]n the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing
Commission . . ., the court may reduce the term of
imprisonment, after considering the factors set forth
in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2).

The text of the statute makes clear

that the Court may reduce the term of imprisonment only where
- 6 -

the original term was “based on a sentencing range that has
subsequently

been

lowered”

and

where

“such

a

reduction

consistent with applicable policy statements.” Id.

is

Only after

the Court determines that these threshold requirements have been
met does it then consider whether “the authorized reduction is
warranted, either in whole or in part, according to the factors
set forth in § 3553(a).”
The

procedure

for

Dillon, 560 U.S. at 826.
the

Court

to

follow

in

§ 3582(c)(2) motion thus is a two-step inquiry.
560 U.S. at 825-26.

the

Court

§ 3553(a)’s

then

factors,

defendant’s sentence.

on

a

See, Dillon,

In step one, the Court asks whether it has

the authority to grant a sentence reduction.
yes,

ruling

proceeds
and

to

decides

step

If the answer is

two,

whether

considers
to

the

reduce

the

The Court performs this analysis step-by-

step below.
A.
The

Whether a Reduction in Setence Is Authorized

Court

finds

that

it

Buffington a sentence reduction.

lacks

the

authority

to

grant

Recall that Buffington is here

relying on Amendment 782 to argue for such a reduction.

The

applicable policy statement specifies that “[a] reduction in the
defendant’s term of imprisonment is not . . . authorized under
18 U.S.C. § 3582(c)(2) if [Amendment 782] does not have the
effect of lowering the defendant’s applicable guideline range.”
- 7 -

See, 18 U.S.C. app. § 1B1.10(a)(2) & (d).

As explained above,

Amendment 782 does not lower Buffington’s guideline range (from
38 to 36) unless the Court finds that a specific drug quantity
from

the

PSR,

internally

inconsistent

with

other

quantities

reported, is the amount of controlled substances for which he
was responsible.
To

determine

whether

this

is

the

amount

of

drugs

that

properly should be attributed to Buffington, the Court first
asks if it has already made such a finding at his sentencing.
If the Court previously found Buffington to be responsible for
exactly 364 kg of cocaine and 1,800 g of heroin, then it may not
now

make

any

other

finding

inconsistent

with

that

quantity.

See, United States v. Dewayne Hall, 600 F.3d 872, 876 (7th Cir.
2010) (“[I]n deciding a sentence-reduction motion pursuant to
§ 3582(c), the district court may not make factual findings that
are

inconsistent

sentencing.”).

with

those

made

during

the

original

After combing the record, the Court concludes

that it did not make a finding as to the exact amount of drugs
that Buffington distributed.
Instead, the Court found that Buffington was responsible
for an amount of drugs qualifying him to an offense level of 38
under the Guidelines applicable at the time of his sentencing.
During the sentencing hearing, the Court stated that the offense
- 8 -

level

was

38

without

mentioning

See, S. Tr. 7:2-9 (“The Court:

any

specific

The Court:

agrees that it’s 38?
only

numerical

figure

Ms. Winslow:

All right.

Ms. Reynolds:
to

quantity.

The base offense level is 38.

Ms. Winslow, does defense agree with that?
not disputing it.

drug

issue

We’re

And the government

That’s correct.”).

from

the

Court

The

was

that

Buffington’s offense involved “perhaps up to 1,000 kilograms of
cocaine.”
It is true that the PSR, unlike the Court, committed to
specific

drug

amounts.

In

particular,

the

PSR

stated

that

Buffington’s “Base Offense Level is 38, because the amount of
controlled substances involved in the offenses for which the
Defendant

is

accountable

is

approximately

cocaine and 1,800 grams of heroin.”

364

kilograms

ECF No. 1 at 3-4.

of

It is

also true that the Court adopted the PSR in its Statement of
Reasons.

However, the Court adopted the PSR in its entirety,

and the PSR included not only the quantities on which Buffington
now relies but also the higher quantities of 978 kg of cocaine
and 3 kg of heroin, as well as the 180,411 kg of marijuana
figure.
Even assuming for the moment that one of the numbers from
the PSR should be treated as the exact amount of drugs the Court
deemed

Buffington

to

have

distributed,
- 9 -

the

Court

is

not

convinced

as

to

why

this

number

should

be

the

lowest

quantity of 364 kg of cocaine and 1,800 g of heroin.

drug

Buffington

asserts that the Court cannot deviate from these figures because
to correct the numbers to anything else would be a substantive
correction

outside

Procedure 36.

the

scope

of

Federal

Rule

of

Criminal

But his argument assumes that these numbers are

the substantive quantities, while the other numerical values are
either incorrect mathematical conversions – to be corrected in
Buffington’s favor – or things to be ignored.

It may be just as

sensible, however, to treat the 364 kg of cocaine and 1,800 g of
heroin numbers as scrivener’s errors and the 978 kg of cocaine
and 3 kg of heroin as the original, “true” figures that the
scrivener

poorly

transcribed.

These

higher

quantities

are

factually supported as the sum of the drug transactions that
Buffington
criminal

had

with

enterprise

his
was

dealers
active.

during
The

364

the
kg

time
of

when

his

cocaine

and

1,800 g of heroin numbers, on the other hand, seem to have no
support.
Put differently, the case at hand is distinguishable from
those that Buffington cites.

In the cited cases, the disputes

revolved around a presentence report or criminal judgment that
contained an error as revealed by comparisons to other, external
sources, e.g., the judge’s intention in imposing a sentence or
- 10 -

the probation officer’s knowledge in preparing the PSR. See,
United States v. Williams, 777 F.3d 909, 910 (7th Cir. 2015)
(stating that the petitioner’s sentence “accurately carries out
the district judge’s decision” and that the presentence report
does not contain a clerical error as “whether the author of the
report accurately understood the nature of one of Williams’s
older

convictions

(which

affects

whether

he

is

a

career

offender) is a substantive matter”); United States v. Johnson,
571 F.3d 716, 718 (7th Cir. 2009) (finding no correctable error
when “the PSR’s preparer noted that she would use a conservative
estimate of the drug amount range for the relevant drug period;
ultimately, a higher reported amount was used”).

Rule 36 does

not allow for the substitution of information from these outside
sources

when

substantive

and

those
not

substitutions
clerical.

concern

See,

e.g.,

matters
United

deemed

States

v.

Lawrence, 535 F.3d 631, 636 (7th Cir. 2008) overruled on other
grounds by United States v. Taylor, 778 F.3d 667, 671 (7th Cir.
2015)

(“Here,

the

district

court

modified

the

sentence

by

substituting the words ‘is less than’ for the word ‘exceeds.’
The corrected sentence reflected the parties’ and the court’s
intent.

However, . . . [t]he error cannot be deemed a clerical

error under Rule 36. . . .”).

- 11 -

Here, in contrast, the dispute is over a single document
that

contains

internally

inconsistent

pieces

of

information.

The question is then which piece of information (if any) should
be deemed operative.
be left as is.

The PSR contradicts itself and so cannot

Instead, if the Court thinks that the report

contained an exact drug amount that was adopted at sentencing,
then it must say which drug amount this is and so strike out the
other two quantities, which it also (and equally) adopted in its
Statement of Reasons.
On the strength of the record, however, the Court does not
think it adopted a particular numerical value from the PSR as a
factual
None

finding

of

these

hearing.
make

a

as

to

numbers

the

precise

were

even

amount

of

mentioned

at

drugs
the

involved.
sentencing

This matters because if “the district court did not
factual

original

finding

sentencing

as

to

hearing,

quantity

the

court

at
was

[the

defendant’s]

required

[and

so

free] to make such a finding in adjudicating his § 3582(c)(2)
motion.”

United States v. Davis, 682 F.3d 596, 615 (7th Cir.

2012), overruled on other grounds by Taylor, 778 F.3d at 671,
(emphasis

added).

§ 3582(c)(2)

motion

Moreover,
is

“a

new

appropriate

factual

so

long

finding
as

it

is

on

a
not

inconsistent with the district court’s findings at the original
sentencing hearing.”

Id. (emphasis added).
- 12 -

Accordingly, the Court now makes a finding as to the drug
quantity

so

that

it

can

determine

what

level would be under the new Guidelines.

Buffington’s

offense

See, Dewayne Hall, 600

F.3d at 876 (“[N]ew findings may be necessary where, as here,
the retroactive amendment to the guidelines altered the relevant
drug-quantity

thresholds

for

determining

the

defendant’s

base

offense level.”); United States v. Mark Hall, 582 F.3d 816, 81819 (7th Cir. 2009) (similar).
the record as a whole.

In so doing, the Court considers

See, Dewayne Hall, 600 F.3d at 876

(“[I]n ruling on a § 3582(c)(2) motion, the district court may
consider the record as a whole. . . .”); United States v. Woods,
581 F.3d 531, 538-39 (7th Cir. 2009), overruled on other grounds
by Taylor, 778 F.3d at 671, (noting with approval the fact that
the district court “examined the record as a whole, considered
the

defendants’

motions,

the

government’s

responses,

and

the

addenda to the PSRs”).
Based
holding

on

what

Buffington

the

Court

said

accountable

at

for

the

sentencing

“perhaps

up

hearing

to

1,000

kilograms of cocaine,” the details in the PSR supporting the
drug quantities as being 978 kg of cocaine and 3 kg of heroin,
and

the

proceeding

Government’s
that

the

consistent
quantity

of

position

throughout

cocaine

attributable

the
to

Buffington was “more than 1,000 kilograms of cocaine,” the Court
- 13 -

now finds that Buffington was responsible for at least 450 kg of
cocaine.
that

This is consistent with the Court’s previous finding

Buffington

was

a

level

38

offender

under

the

old

Guidelines, meaning that he was responsible for no less than 150
kg of cocaine.

See, e.g., United States v. Russell, 562 F.

App’x 529, 531 (7th Cir. 2014) (“[A] district court may make new
factual

findings

if

they

are

consistent

with

its

previous

Ergo, Buffington’s offense level remains at 38.

The 782

findings.”) (citing Davis, 682 F.3d at 612).

Amendment thus had no effect in lowering his sentencing range,
and the Court is not at liberty to grant him any relief under
§ 3582(c)(2).

See, e.g., Richardson v. United States, No. 94-

CR-187-1, 2016 U.S. Dist. LEXIS 93544, at *3 (N.D. Ill. July 19,
2016) (“[B]ecause the sentencing range upon which Petitioner was
originally

sentenced

is

not

modification

of

Petitioner’s

pursuant

18

U.S.C.

to

§

lowered
imposed

3582(c)(2)

by
term

is

Amendment
of

not

782,

imprisonment
authorized.”).

Buffington’s motion for relief “begins and ends with step one.”
United States v. Koglin, 822 F.3d 984, 986 (7th Cir. 2016).
B.

Whether a Reduction in Sentence Is Warranted

Alternatively,
authority
reduction,

to
it

the

consider
should

Court

finds

that

Buffington’s
decline

to

- 14 -

even

request

grant

any

if
for
such

it

had

the

a

sentence
reduction.

Buffington has not given the Court a reason consonant with the
factors in 18 U.S.C. § 3553(a) to grant him relief.
have

forgotten

that

“a

section

3582(c)(2)

He seems to

modification

is

discretionary, even for a defendant whose Guideline range has
been retroactively lowered.”

United States v. Cunningham, 554

F.3d 703, 707 (7th Cir. 2009); see also, United States v. Young,
555 F.3d 611, 614-15 (7th Cir. 2009).
While

§

3553(a)’s

factors

are

numerous,

the

Court

considered them when it imposed the sentence that Buffington now
seeks

to

change.

It

specifically

found

that

a

238-month

sentence was appropriate because of the “very, very, serious”
nature and circumstances of the offense, which made it “one of
the most egregious cases” before the Court.

See, S. Tr. 49:13-

14 (“This is one of the most egregious cases from a number of
standpoints.”); 50:17-21 (“[T]his is a very, very, very serious
crime.”);

52:13-22

(“[T]he

nature

and

circumstances

offense [are] very, very serious. . . .”).

of

the

Of course, one of

the things that was so egregious about Buffington’s conduct was
the “literal size” of his drug operation.
51:2-9.

See, S. Tr. 49:13-14;

But even if the Court now holds Buffington responsible

only for the lesser amount of 364 kg of cocaine and 1,800 g of
heroin, this still does not change its conclusion that he was “a
part of a very, very bad business, which . . . feeds the drug
- 15 -

habits and creates drug habits among some of our young people
and not-so-young people.”

See, S. Tr. 49:19-22 (“Well, a lot of

people’s

drugs,

children

are

on

and

a

lot

of

them

probably

because of this particular drug conspiracy, because you put so
much of this poison out of the street.”); 51:5-15 (“[Y]ou’re a
part of a very, very bad business, which the net result is that
it feeds the drug habits and creates drug habits among some of
our young people and not-so-young people.

And it’s really –

it’s hard for me to find much good about it.”).
Moreover, the Court imposed the sentence it did for reasons
other than the size of Buffington’s drug operation.

The Court

took note of the fact that Buffington “had skills,” “w[as] able
to win basketball scholarships to . . . more than one school,”
was “able to get into college,” and “could have made something
for [himself].”
sell drugs.

See, S. Tr. 51:24-52:8.

Instead, he chose to

Further, he involved his brother, an addict, and

his mother, a woman who “worked hard to take care of [him],” in
the illegal enterprise.

See, S. Tr. 49:23-24; 51:24-25.

The

Court characterized Buffington’s involvement of his mother, whom
the Court then had to sentence, as “the worst thing” Buffington
did.

See, S. Tr. 50:4-7, 15-18 (“Some of the – the worst thing

is to get your own mother involved.
mother.

I had to sentence your

And that was painful, I will tell you.”).
- 16 -

None

of

these

facts

sentence have changed.
that

anything

is

sentenced him.
prison,

what

supporting

the

Court’s

original

Indeed, Buffington made no effort to say

different

today

than

when

the

Court

first

He does not mention how he has spent his time in
he

has

been

able

to

accomplish

within

that

environment, or even if he has managed to stay out of trouble.
See, 18 U.S.C. app. § 1B1.10 n.1(B)(iii) (listing a defendant’s
post-sentencing conduct as a factor that may be considered in
determining
imprisonment

whether
is

a

reduction

warranted).

in

the

defendant’s

Buffington

only

term

of

generically

asserted that “[a] 28-month reduction is warranted under the
moral and legal principles encompassed in § 3553.”
at 3-4.
As

ECF No. 17

He does not say why that is.
far

as

the

Court

Buffington is now older.

can

tell,

only

time

has

passed.

But he was 44, not a young man, when

the Court first sentenced him, and the Court already took into
account his age when it imposed the term of imprisonment.
S. Tr. 53:2-10 (“The Court:
45?

Buffington:

person.”).

Yes.

See,

Now, you’re, what, 44 years of age,

The

Court:

So

you’re

not

a

young

Furthermore, the Court knew that Buffington would

one day be an old man in prison when it announced the sentence.
For the Court to change its mind now because the inevitable has
arrived would only be time-inconsistency at play.
- 17 -

In sum, Buffington has not given the Court any reason to
exercise its discretion and grant him the relief he seeks.

As

such, either as a matter of course under step one, or as a
matter

of

choice

under

step

two,

the

Court

orders

that

Buffington’s sentence stand.
III.

CONCLUSION

For the reasons stated herein, Buffington’s § 3582(c)(2)
Petition [ECF No. 1] is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated:4/12/2017

- 18 -