At page 712 Limitation of § 3582(c)(2) proceedings for collateral attacks81 citing cases“a modification proceeding is not the forum for a collateral attack on a sentence long since imposed and affirmed on direct appeal.”
- United States v. Mitchell, 828 F. Supp. 2d 576 (E.D.N.Y. 2011).published (affirming the district court’s denial of a motion for a sentence reduction pursuant to 18 U.S.C. § 3582 (c) and refusal “to grant an evidentiary hearing to decide the amount of crack for which [the defendant] was respon…)
- United States v. Mario Gonzalez, No. 19-50305 (5th Cir. Sept. 4, 2020).unpublished ([T]he decision whether to ultimately grant a modification is left to the sound discretion of the trial court.)
- United States v. Brian Terry, 671 F. App'x 323 (5th Cir. 2016).unpublished(A modification proceeding is not the forum for a collateral attack on a sentence long since imposed....)
- United States v. Silva-Salazar, No. 26-40023 (5th Cir. Sept. 21, 2026).unpublishedWe do not consider Silva-Salazar’s arguments, raised for the first time on appeal, challenging the procedural and substantive reasonableness of his original sentence, see United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994); in any ev…
- United States v. Hill, No. 26-20054 (5th Cir. Aug. 24, 2026).unpublishedWe do not consider Hill’s claims, raised for the first time on appeal, that (1) he was entitled to a mitigating role adjustment due to the Government’s judicial admission that Hill was an “average participant” and that the admission invali…
- United States v. Solis, No. 25-50394 (5th Cir. Mar. 20, 2026).unpublishedSee 18 U.S.C. § 3582 (c)(2); United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Aguilar, No. 22-10587 (5th Cir. Dec. 9, 2022).unpublishedWe do not consider Aguilar’s challenge to the evidence used to apply the firearms enhancement, see United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011), and he abandons any challenge to the district court’s determination that his…
- United States v. Thompson, 984 F.3d 431 (5th Cir. 2021).publishedThat is limited to two circumstances: where the defendant has either a terminal illness or a condition “that substantially diminishes the ability of the defendant to provide self-care . . . .” Id. 2 The government contends that, even if Th…
- United States v. Joe Rivas, Jr., No. 20-10360 (5th Cir. Nov. 2, 2020).unpublishedUnited States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Seferino Avila, No. 19-40576 (5th Cir. Aug. 11, 2020).unpublishedUnited States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011) (citations omitted).
Show 70 more citing cases
- United States v. Rene Flores, No. 19-40044 (5th Cir. Aug. 5, 2019).unpublishedSee Dillon, 560 U.S. at 831 ; United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Tomas Rodriguez, 699 F. App'x 395 (5th Cir. 2017).unpublishedE.g., United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Jorge Garza, No. 16-20576 (5th Cir. Sept. 21, 2017).unpublishedR. 47.5.4. 1 See United States v. Hernandez, 645 F.3d 709, 712-13 (5th Cir. 2011).
- United States v. Raul Mercado-Moreno, 869 F.3d 942 (9th Cir. 2017).published (holding that “the district court did not abuse its discretion in refusing to ... grant an evidentiary hearing to decide the amount of crack for which Hernandez was responsible” in light of a-retroactive amendment modify…)
- United States v. Magdaleno Rodriguez, 695 F. App'x 82 (5th Cir. 2017).unpublishedDillon, 560 U.S. at 825-26 , 130 S.Ct. 2683 ; United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Richard Garcia, 704 F. App'x 356 (5th Cir. 2017).unpublishedGarcia argues that the district court abused its discretion by denying his § 3582(c)(2) motion based on an error of law and based on a clearly erroneous assessment of the evidence, “This court reviews a district court’s decision whether to…
- United States v. Enrique Cruz, 676 F. App'x 328 (5th Cir. 2017).unpublishedUnited States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
- United States v. Selwyn Martin, 674 F. App'x 427 (5th Cir. 2017).unpublishedSee United States v. Hernandez; 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Willie Cole, Jr., 672 F. App'x 496 (5th Cir. 2017).unpublishedUnited States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Jeffrey Brevick, 669 F. App'x 266 (5th Cir. 2016).unpublishedUnited States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Edgar White, Jr., 653 F. App'x 807 (5th Cir. 2016).unpublished United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Kenneth Collins, 643 F. App'x 447 (5th Cir. 2016).unpublishedSee Dillon v. United States, 560 U.S. 817, 825-26 , 130 S.Ct. 2683 , 177 L.Ed.2d 271 (2010); United States v. Hernandez, 645 F.3d 709, 712 (5th Cir.2011).
- United States v. Clifton Rivers, 516 F. App'x 364 (5th Cir. 2013).unpublishedSee Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-94 , 177 L.Ed.2d 271 (2010); United States v. Hernandez, 645 F.3d 709, 712 (5th Cir.2011).
- United States v. Jerrell Moore, 706 F.3d 926 (8th Cir. 2013).publishedUnited States v. *929 Christian, No. 12-2210, 2013 WL 323212 (January 29, 2013) (unpublished per curiam); see also United States v. Almonte, No. 12-1911, 2012 WL 5974115 , at *1 (8th Cir. Nov. 29, 2012) (unpublished per curiam); United Sta…
- United States v. Roderick Reed, 490 F. App'x 633 (5th Cir. 2012).unpublished“A modification proceeding is not the forum for a collateral attack on a sentence long since imposed and affirmed on direct appeal.” United States v. Hernandez, 645 F.3d 709, 712 (5th Cir.2011).
- United States v. George Whitehead, Jr., 476 F. App'x 577 (5th Cir. 2012).unpublished“A modification proceeding is not the forum for a collateral attack on a sentence long since imposed and affirmed on direct appeal.” United States v. Hernandez, 645 F.3d 709, 712 (5th Cir.2011).
- United States v. Lozoya, No. 25-50391 (5th Cir. Dec. 18, 2025).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Lucio, No. 25-10580 (5th Cir. Nov. 25, 2025).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Olivares, No. 24-40376 (5th Cir. Apr. 17, 2025).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Mares, No. 24-10320 (5th Cir. Mar. 25, 2025).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); see also Dillon v. United States, 560 U.S. 817, 827 (2010).
- United States v. Perez-Calderon, No. 24-40560 (5th Cir. Mar. 24, 2025).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); see also Dillon v. United States, 560 U.S. 817, 827 (2010).
- United States v. Russell, No. 24-40430 (5th Cir. Mar. 6, 2025).unpublished(§ 3582(c) proceeding inappropriate vehicle to relitigate sentencing issue)
- United States v. Alvarado, No. 23-10673 (5th Cir. Dec. 4, 2023).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). 2 Finally, Alvarado contends that the district court erred by denying his motion for compassionate release without giving the Government an opportunity to file a response,…
- United States v. Khan, No. 22-20313 (5th Cir. Apr. 6, 2023).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011) ( 18 U.S.C. § 3582 (c)(2) motion).
- United States v. Tarnawa, No. 21-40893 (5th Cir. Oct. 11, 2022).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); see also United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
- United States v. Johnson, No. 21-50595 (5th Cir. July 12, 2022).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Camillo-Amisano, No. 21-10945 (5th Cir. May 26, 2022).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997).
- United States v. Hays, No. 21-10406 (5th Cir. May 5, 2022).unpublished(explaining, in a § 3582(c)(2) 2 case, that “[a] modification proceeding is not the forum for a collateral attack on a sentence long since imposed and affirmed on direct appeal)
- United States v. Thompson, No. 21-40753 (5th Cir. Apr. 12, 2022).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Sumler, No. 1995-0154, 2021 WL 6134594 (D.D.C. Dec. 28, 2021).publishedSee United States v. Abdul-Ali, No. 19-60694, 2021 U.S. App. LEXIS 36565 , at *4-5 (5th Cir. Dec. 10, 2021) (holding that “a ‘modification proceeding’ cannot serve as a vehicle for a ‘collateral attack on a sentence long since imposed and…
- United States v. Fulton, No. 20-10702 (5th Cir. Aug. 26, 2021).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). 1 Fulton has not shown an abuse of discretion in the district court’s denial of his request for a reduction in his 400-month term of imprisonment.
- United States v. Marvin Carabali-Diaz, No. 19-20261 (5th Cir. Apr. 13, 2020).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
- United States v. Hugo Villarreal-Solis, No. 19-50536 (5th Cir. Apr. 1, 2020).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
- United States v. Samuel Pineda, No. 18-40904 (5th Cir. July 15, 2019).unpublishedSee United States v. Hernandez, 645 F.3d 709, 712-13 (5th Cir. 2011).
- United States v. Kenneth Valentine, 694 F.3d 665 (6th Cir. 2012).published
- United States v. Martin Cobb, 514 F. App'x 502 (5th Cir. 2013).unpublished
- United States v. Charlie Williams, 544 F. App'x 424 (5th Cir. 2013).unpublished
- United States v. Andrew Kennedy, 722 F.3d 439 (D.C. Cir. 2013).published
- United States v. Rashawn Dawkins, 535 F. App'x 307 (4th Cir. 2013).unpublished
- United States v. Martin Cobb, 547 F. App'x 586 (5th Cir. 2013).unpublished
- United States v. James Clark, 586 F. App'x 161 (5th Cir. 2014).unpublished
- United States v. James Clark, 586 F. App'x 162 (5th Cir. 2014).unpublished
- United States v. Kenyoun Gilyard, 602 F. App'x 201 (5th Cir. 2015).unpublished
- United States v. Keith Cobb, 628 F. App'x 309 (5th Cir. 2016).unpublished
- United States v. Antonio Rivera, 634 F. App'x 451 (5th Cir. 2016).unpublished
- United States v. Ocario Ruiz, 638 F. App'x 397 (5th Cir. 2016).unpublished
- United States v. Andres Ramos, 653 F. App'x 819 (5th Cir. 2016).unpublished
- United States v. Reginald Green, 667 F. App'x 137 (5th Cir. 2016).unpublished
- United States v. Frank Tijerina, III, 670 F. App'x 243 (5th Cir. 2016).unpublished
- United States v. Arnoldo Pulido, 675 F. App'x 422 (5th Cir. 2017).unpublished
- United States v. Samuel Jackson, 672 F. App'x 492 (5th Cir. 2017).unpublished
- United States v. Michael Derrow, 675 F. App'x 481 (5th Cir. 2017).unpublished
- United States v. Jessie Bustamante, 675 F. App'x 498 (5th Cir. 2017).unpublished
- United States v. Homero Cantu, Jr., 678 F. App'x 245 (5th Cir. 2017).unpublished
- United States v. Felipe Ramirez-Arellano, 683 F. App'x 301 (5th Cir. 2017).unpublished
- United States v. Diego Villalobos, Jr., 685 F. App'x 315 (5th Cir. 2017).unpublished
- United States v. Juan Sosa, 686 F. App'x 244 (5th Cir. 2017).unpublished
- United States v. Michael Short, 689 F. App'x 813 (5th Cir. 2017).unpublished
- United States v. Salvador Damian Lopez, 690 F. App'x 275 (5th Cir. 2017).unpublished
- United States v. Joshua Bradford, 690 F. App'x 271 (5th Cir. 2017).unpublished
- United States v. Reymundo Montoya-Ortiz, 691 F. App'x 233 (5th Cir. 2017).unpublished
- United States v. Antonio Berry, 869 F.3d 358 (5th Cir. 2017).published
- United States v. Michael Davis, 697 F. App'x 266 (5th Cir. 2017).unpublished
- United States v. Arturo Gomez, 697 F. App'x 410 (5th Cir. 2017).unpublished
- United States v. Melvin Lutcher, No. 17-30995 (5th Cir. June 11, 2018).unpublished
- United States v. Christopher Williams, No. 17-11065 (5th Cir. Aug. 3, 2018).unpublished
- United States v. Frederico Gonzalez, No. 17-11064 (5th Cir. May 6, 2019).unpublished
- United States v. Eddie Warner, Jr., No. 18-40822 (5th Cir. June 7, 2019).unpublished
- United States v. Greenwood, 574 F. App'x 419 (5th Cir. 2014).unpublished
- United States v. Garza, 697 F. App'x 406 (5th Cir. 2017).unpublished
At page 711 Determining applicability of guideline amendments to sentencing13 citing casesdefendant may not, in a § 3582(c)(2) proceeding, challenge the drug quantity found by the sentencing judge
- United States v. Joe Sotelo, No. 19-10412 (5th Cir. Oct. 31, 2019).unpublished United States v. Hernandez, 645 F.3d 709, 711 (5th Cir. 2011).
- United States v. Francisco Estrada, 673 F. App'x 450 (5th Cir. 2017).unpublishedUnited States v. Hernandez, 645 F.3d 709, 711-12 (5th Cir. 2011).
- United States v. David Lang, 667 F. App'x 134 (5th Cir. 2016).unpublishedUnited States v. Hernandez, 645 F.3d 709, 711 (5th Cir. 2011).
- United States v. Derrick Briscoe, 596 F. App'x 299 (5th Cir. 2015).unpublished The district court must first determine “the amended guideline range that would have been applicable to the defendant if the relevant amendment had been in effect at the time of the initial sentencing.” United States v. Hernandez, 645 F.3d…
- United States v. Frank Hughes, 544 F. App'x 534 (5th Cir. 2013).unpublishedUnited States v. Hernandez, 645 F.3d 709, 711 (5th Cir.2011); see Dil *535 lon, 180 S.Ct. at 2691.
- United States v. Byron Williams, 477 F. App'x 190 (5th Cir. 2012).unpublished(defendant may not, in a § 3582(c)(2) proceeding, challenge the drug quantity found by the sentencing judge)
- United States v. Calvin Odom, 486 F. App'x 433 (5th Cir. 2012).unpublished
- United States v. Jose Orozco-Lopez, 622 F. App'x 439 (5th Cir. 2015).unpublished
- United States v. Luis Pena, 627 F. App'x 363 (5th Cir. 2015).unpublished
- United States v. Moises Lopez, 670 F. App'x 252 (5th Cir. 2016).unpublished
Show 3 more citing cases
- United States v. Hamid Sayadi-Takhtehkar, 670 F. App'x 861 (5th Cir. 2016).unpublished
- United States v. Juan Estrada, Jr., 672 F. App'x 476 (5th Cir. 2017).unpublished
- United States v. Aldo Saenz, No. 17-10474 (5th Cir. May 25, 2018).unpublished
At page 709 “the quantity of drugs far exceeds the 1.5 kilograms needed to yield a total offense level of 39.”4 citing cases
- United States v. Battle, 706 F.3d 1313 (10th Cir. 2013).published
- United States v. Washington, 759 F.3d 1175 (10th Cir. 2014).published
- United States v. Adolph Spears, Sr., 824 F.3d 908 (9th Cir. 2016).published
v.
Jason HERNANDEZ, Defendant-Appellant
Jason Hernandez appeals a district court’s denial of his motion for modification of his life sentence pursuant to 18 U.S.C. § 3582(c)(2), relying on a recent amendment to the sentencing guidelines for crimes related to the possession and distribution of crack cocaine. Because the district court that sentenced Hernandez found that Hernandez was responsible for 32.5 kg of crack cocaine, an amount far in excess of the quantity that triggers the highest offense level under the current sentencing guidelines, we AFFIRM.
I.
In 1998, defendant-appellant Jason Hernandez was convicted after a jury trial of one count of conspiracy to possess with an intent to distribute controlled substances and conspiracy to distribute controlled substances, including cocaine base (crack cocaine) in violation of 21 U.S.C. § 845; and two counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). The sealed pre-sentence report (PSR) states that “it was part of the conspiracy that members would obtain cocaine base, powder cocaine, marijuana and methamphetamine and arrange for transportation of these drugs to McKinney, Texas ... [o]ne or more members of the conspiracy would convert cocaine hydrochloride into cocaine base.” The PSR set forth numerous occasions on which Hernandez knew that members of his criminal conspiracy transported powder cocaine and later cooked that powder into cocaine base. The PSR therefore concluded that “[bjased on the most conservative estimate, Jason Hernandez is responsible for 32.5 kg of cocaine base.”
Over Hernandez’s objections, the district court adopted the PSR in its Statement of Reasons and during Hernandez’s sentencing hearing, noting with respect to the conspiracy charge that “there is sufficient credible evidence to support the calculations of drug quantity as made by the probation officer.” “In any event,” the court went on to observe, “I think there is clearly evidence to — that the quantity of drugs far exceeds the 1.5 kilograms needed to yield a total offense level of 39.” That latter finding was significant because under the then-prevailing sentencing guidelines, the highest offense level was imposed for crack cocaine quantities in excess of 1.5 kg. On October 2, 1998, Hernandez was sentenced to life imprisonment for the conspiracy count. Hernandez later appealed his conviction and sentence. Although he disputed the sufficiency of the evidence against him, he did not dispute the court’s findings with respect to the quantity of cocaine for which the conspiracy was responsible. This court affirmed his conviction on all grounds. United States v. Hernandez, 260 F.3d 621 (5th Cir.2001) (unpublished).
[*711] Effective November 1, 2007, the United States Sentencing Commission adopted Amendment 706, which retroactively modified the guidelines ranges applicable to crack cocaine offenses to reduce the disparity between crack cocaine and powder cocaine offenses. U.S.S.G. Supp. to App’x C, Amend. 706 (Nov. 1, 2009). While the maximum offense level applied to a finding of 1.5 kg of crack when Hernandez was sentenced, it now applies to a finding of 4.5 kg of crack. The amendment has no applicability to a defendant sentenced for more than 4.5 kg of crack. See United States v. Duncan, 639 F.3d 764, 767 (7th Cir.2011) (recognizing that Amendment 706 affects only defendants who are responsible for distributing less than 4.5 kg of crack).
In 2008, Hernandez filed a motion pursuant to § 3582(c)(2) for reduction of his sentence consistent with the revised guidelines. After requesting a response from the United States, the district court rejected Hernandez’s argument. Hernandez then moved in the district court for reconsideration and, nearly simultaneously, appealed to this court. The district court again rejected his claims, holding that the amendments to the sentencing guidelines had no effect on Hernandez’s sentencing offense level and thus on his sentence, because the amount of crack cocaine for which he was responsible was far beyond the 4.5 kg threshold under the amended guidelines. [1] Hernandez now appeals the district court’s decision on reconsideration.
II.
As the Supreme Court recently has held, the scope of a proceeding under 18 U.S.C. § 3582(c)(2) in cases like this one is extremely limited. Dillon v. United States, — U.S.-, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271 (2010). It is black-letter law that a federal court generally “may not modify a term of imprisonment once it has been imposed.” Id. However, Congress has allowed an exception to that rule “in 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.” 18 U.S.C. § 3582(c)(2); see also Freeman v. United States, No. 09-10245, — U.S.-, 131 S.Ct. 2685, 180 L.Ed.2d 519, 2011 WL 2472797 (U.S. June 23, 2011) (reciting standard for sentence modifications). Such defendants are entitled to move for retroactive modification of their sentences. Dillon, 130 S.Ct. at 2690-91. In determining whether to modify the defendant’s sentence, the district court is first required to find the amended guideline range that would have been applicable to the defendant if the relevant amendment had been in effect at the time of the initial sentencing. U.S.S.G. § lB1.10(a)(l). “In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guidelines provisions that were applied when the defendant was sentenced, and shall leave all other guideline application decisions unaffected.” U.S.S.G. § lB1.10(b)(l).
After the district court determines what the modified sentence would be, the district court is required to consider any applicable factors under 18 U.S.C. § 3553 in deciding whether a sentence modification is “warranted in whole or in[*712] part under the particular circumstances of the case.” Dillon, 130 S.Ct. at 2692. “Because reference to § 3553 is appropriate only at the second step of this circumscribed inquiry, it cannot serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.” Id. Thus, even if the defendant qualifies for sentence modification under the first step of the analysis, the decision whether to ultimately grant a modification is left to the sound discretion of the trial court. Dillon, 130 S.Ct. at 2692. The district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009) cert. denied, — U.S.-, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010).
Applying those principles to this appeal, we hold that the district court did not abuse its discretion in refusing to modify Hernandez’s sentence or in refusing to grant an evidentiary hearing to decide the amount of crack for which Hernandez was responsible. On the record before us the sentencing district judge adopted the 32.5 kilogram quantity found by the PSR, far beyond the 4.5 kg threshold needed for the highest offense level. Hernandez did not challenge that finding on appeal, as did one of his co-conspirators, James Dwayne Ortega. Thus, Hernandez’s efforts to re-litigate whether the penalty was properly applied are not cognizable at this stage, and his sentence cannot be modified. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir.1994) (observing that a § 3582(c)(2) proceeding is not the appropriate vehicle for relitigating a sentencing issue); see also United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.1995) (“[A] § 3582(c)(2) motion is not a second opportunity to present mitigating factors to the sentencing judge, nor is it a challenge to the appropriateness of the original sentence.”). A modification proceeding is not the forum for a collateral attack on a sentence long since imposed and affirmed on direct appeal. Dillon, 130 S.Ct. at 2692. [2]
Even assuming arguendo that Hernandez could challenge the drug quantity found by the sentencing judge in this proceeding, after a careful review of the record we conclude that the district court in the modification proceeding did not abuse its discretion in finding that Hernandez was responsible for more than 4.5 kilograms of crack, the trigger for the maximum penalty under the Sentencing Guidelines. See United States v. Woods, 581 F.3d 531, 539 (7th Cir.2009) (“Had the original sentencing court found that the defendants were responsible for exactly 1.5 kilograms, we would have a different case, but a finding that the defendants were responsible for at least 4.5 kilograms is not inconsistent with the conclusion of the original sentencing court that the defendants were responsible for amounts in excess of 1.5 kilograms”); see also United States v. Moore, 582 F.3d 641, 646 (6th Cir.2009) (“We do not agree with [the defendant] that the district court’s previous determination of ‘more than 1.5 kilograms’ means that it cannot also find more than 4.5 kilograms”). [3] Hernandez argues that[*713] ambiguity was raised about the amount of crack by the PSR and the district judge’s comments at the sentencing hearing, and notes the government’s concession in a co-conspirator’s appeal that the amount of crack involved was less than 32.5 kg. However, even assuming there was some ambiguity about the amount of crack involved, [4] Hernandez does not and cannot dispute that one member of his conspiracy testified that he personally delivered 2.5 kg of crack, that another conspirator testified that “most” of the 12.5 kg of powder cocaine for which that conspirator was responsible was cooked into crack, that there was evidence of 15 kg of crack delivered by another conspirator, and that the PSR’s calculations excluded further evidence of crack distribution by the conspiracy. See United States v. Thomas, 963 F.2d 63, 64 (5th Cir.1992) (noting that in controlled substance convictions, the sentence is based not only on the amount involved in the offense for which the defendant was convicted, but also on the contraband involved in acts that were part of the same course of conduct or common scheme or plan as the offense of conviction). [5]
III.
For the foregoing reasons, the judgment is AFFIRMED.
. The district court also rejected Hernandez's claims on jurisdictional grounds, because Hernandez moved for reconsideration after taking an appeal to this court, and thus potentially deprived the district court of its jurisdiction. Because the merits are properly before us on the defendant's timely appeal, we need not reach the issue of whether the district court was correct in this determination.
. Nor, as Hernandez himself admits, does § 3582(c)(2) permit the district court to have considered a reduction of his sentence to a term below the amended advisory guideline range in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). That inquiry is also entirely foreclosed under Dillon. Id. 130 S.Ct. at 2687-89; see also United States v. Doublin, 572 F.3d 235 (5th Cir.2009).
. Hernandez also argues that we should reverse and remand for a limited re-sentencing because of the alleged inconsistencies noted above, relying on this court’s opinion in United States v. Towe, 26 F.3d 614, 617 (5th Cir.[*713] 1994). That case is inapposite. In Towe, the defendant's sentence was based on responsibility for a total weight of 28.26 pounds of phenylacetone. The record there showed that the 28.26 pounds contained some waste products which, pursuant to the sentencing guideline amendments at issue, could no longer be counted for the purposes of sentencing. The district court simply had not differentiated between the pure drug and waste products because, at that time, it made no difference to the sentence. Under that fact pattern, this court held that an evidentiary hearing was necessary to decide how much of the total weight was pure phenylacetone, and thus whether the defendant qualified for modification. Here, Hernandez has not claimed in this appeal that based on the record and the sources cited by the PSR it could not reasonably be concluded that he was responsible for more than 4.5 kg of crack. Under Dillon, that is where our inquiry ends.
. As we hold above, there was no such ambiguity, because the district court adopted the PSR in its entirety.
. To the extent Hernandez argues that the district court erred by accepting the PSR's assumption that the powder cocaine transported by members of the conspiracy was converted to a comparable amount of crack, this argument must be rejected. It is the law of this circuit that a district court is "permitted to convert a quantity of powder cocaine to a comparable amount of crack cocaine for sentencing purposes if the conversion was foreseeable to the defendant.” United States v. Burns, 526 F.3d 852, 859 (5th Cir.2008), citing United States v. Booker, 334 F.3d 406, 414 (5th Cir.2003).