United States of America v. Frank G. Rendon

United States Court of Appeals
For the Eighth Circuit
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No. 19-2515
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United States of America
Plaintiff - Appellee
v.
Frank G. Rendon
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 15, 2020
Filed: July 27, 2020
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Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
The district court denied a sentence reduction to Frank Rendon, who is serving
a 360-month sentence for conspiring to distribute methamphetamine. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846; see also 18 U.S.C. § 3582(c)(2) (allowing for the filing
of a sentence-reduction motion). In doing so, it relied on a drug-quantity figure that

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did not match what was attributed to him at sentencing. In light of this inconsistency,
we vacate and remand for reconsideration.
Rendon seeks to take advantage of Amendment 782, which retroactively
“lower[ed] the base offense level[s] for most drug[-]quantity offenses.” United
States v. Thomas, 775 F.3d 982, 982–83 (8th Cir. 2014) (per curiam). Generally
speaking, it reduced base offense levels at each drug-quantity threshold by two, id.
at 982, by pegging them to a higher quantity than before. As applicable here, for
example, the threshold for receiving a base offense level of 38 increased from 15 to
45 kilograms of methamphetamine. See U.S.S.G. supp. to app. C, amend. 782, 788
(2014); see also Thomas, 775 F.3d at 982–83 (discussing Amendment 782).
For Rendon, two findings at his original sentencing gave him a base offense
level of 38. See United States v. Rendon, 752 F.3d 1130, 1133 (8th Cir. 2014). The
first was that he was responsible for at least 15 kilograms of methamphetamine. See
id. at 1133, 1135. The second was that the presentence investigation report’s
estimate of 136.08 kilograms was too high. The quantity, in other words, fell along
a spectrum: at least 15, but less than 136.08, kilograms of methamphetamine. See
U.S.S.G. § 2D1.1(c)(1) (2011).
With these findings, Rendon’s Guidelines range was 360 months to life
imprisonment in 2013. See Rendon, 752 F.3d at 1133. Today, under Amendment
782, the range may not be so high. Specifically, if the quantity attributable to him
was at the lower end of the spectrum—between 15 and 45 kilograms—then his new
base offense level would be 36 and the new range likely between 292 and 365
months in prison. See U.S.S.G. § 2D1.1(c)(2); id. ch. pt. A.
The district court went in a different direction. It simply assumed that the
correct drug amount was 136.08 kilograms and denied Rendon’s motion. The
problem, of course, is that it had already rejected this figure earlier—at Rendon’s
original sentencing—when it overruled the estimate in the presentence investigation

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report. So the amount it used in denying Rendon’s motion (136.08 kilograms) was
“at odds” with its “previous factual finding[]” (not 136.08 kilograms). United States
v. Anderson, 707 F.3d 973, 975 (8th Cir. 2013) (per curiam) (citation omitted); see
United States v. Adams, 104 F.3d 1028, 1029–31 (8th Cir. 1997) (explaining that the
district court could not hold the defendant responsible for 110 marijuana plants at
resentencing because it had held him accountable for exactly 73 plants before).
The remedy for this error is remand for reconsideration. See United States v.
Williams, 103 F.3d 57, 58–59 (8th Cir. 1996) (per curiam) (remanding when the
district court made a legal error in denying a sentence-reduction motion); see also
United States v. Calton, 900 F.3d 706, 715 (5th Cir. 2018) (remanding for
reconsideration when the district court mistakenly relied on a probation officer’s
earlier statement when it denied a sentence-reduction motion under Amendment
782). On remand, the district court is free to make a new drug-quantity finding as
long as it lands between 15 and 136.08 kilograms. See Anderson, 707 F.3d at 975.
What it cannot do, however, is pick an amount that it has already rejected.
We accordingly vacate the judgment of the district court and remand for
reconsideration of Rendon’s motion.
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