Judge Arthur D. Spatt
Mitchell pleaded guilty under agreement to distributing five grams or more of cocaine base. The agreement stipulated to 150 grams. The probation department’s pre-sentence report (PSR) attributed 436.6 grams to him. Although counsel’s sentencing memorandum accepted “for discussion purposes” the PSR’s drug quantity attribution, a footnote therein challenged the quantity attributable to Mitchell. The court sentenced Mitchell to a non-guidelines sentence of 72 months in prison. Based on 2011′s Amendment 750 to the U.S. Sentencing Guidelines, Mitchell sought a reduced sentence under 18 USC §3582(c)(2). Finding itself bound by neither the PSR’s nor Mitchell’s drug quantity attributions, the court found an evidentiary hearing was needed to determine the quantity of drugs attributable to Mitchell, and thus his entitlement to a sentence reduction. Mitchell acknowledged that because he pleaded guilty to conspiring to possess with intent to distribute 150 grams or more of crack cocaine, it was unnecessary to challenge the PSR’s quantity finding because it would not affect his base offense level. Therefore, Mitchell preserved his objection to challenge the drug quantity attributable to him if it would affect his base offense level.