The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2296
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Steven W. Brown, *
* [PUBLISHED]
Appellant. *
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Submitted: January 11, 2010
Filed: May 12, 2010
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Before SMITH and COLLOTON, Circuit Judges, and KORNMANN,1 District Judge.
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PER CURIAM.
Steven W. Brown appeals following the district court's2 grant of his motion for
a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) and the 2008 Guidelines
amendments, which retroactively reduce base offense levels for particular offenses
involving cocaine base. The district court reduced Brown's offense level by two levels,
yielding a modified Guidelines range of 324 to 405 months' imprisonment, and
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, sitting by designation.
2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
sentenced Brown to the bottom of the modified Guidelines range. Brown argues that
the district court erroneously applied the Guidelines as mandatory in resentencing him
pursuant to § 3582(c)(2). We affirm.
I. Background
A jury convicted Brown of conspiracy to distribute cocaine base, in violation
of 21 U.S.C. § 846 ("Count 1"), and possession of cocaine base with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) ("Count 2").
The presentence investigation report calculated Brown's base offense level as
34 based on his responsibility for 150 to 500 grams of cocaine base. After a four-level
increase was applied for being a leader or organizer, Brown's total offense level
became 38. Brown had 16 criminal history points, resulting in a criminal history
category of VI. His Guidelines range was 360 months' to life imprisonment.
The district court sentenced Brown to 360 months' imprisonment—the bottom
of the Guidelines range—on Counts 1 and 2, to run concurrently, followed by a five-
year term of supervised release on each count to be served concurrently. The statutory
mandatory minimum for Count 1 was 120 months' imprisonment.
Subsequently, Brown filed a motion, pursuant to § 3582(c)(2) and Amendments
706 and 711 to the Guidelines, seeking a reduction in his sentence. The district court
granted Brown's motion and reduced his offense level by two levels, yielding a
modified Guidelines range of 324 to 405 months' imprisonment. The district court
sentenced Brown to 324 months' imprisonment, the bottom of the modified Guidelines
range.
Brown then filed a motion for reconsideration of the order reducing his
sentence, requesting that the court sentence him below the modified Guidelines range
to 120 months' imprisonment, the statutory mandatory minimum for Count 1. The
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government opposed the motion, citing United States v. Starks, 551 F.3d 839 (8th Cir.
2009). The district court denied the motion, finding that, pursuant to Starks, it
"lack[ed] the authority to impose a sentence below the amended [G]uideline[s] range."
II. Discussion
Brown argues that the district court erroneously applied the Guidelines as
mandatory when resentencing him pursuant to § 3582(c)(2). Brown acknowledges our
precedent that the holding in United States v. Booker, 543 U.S. 220 (2005), does not
apply to resentencing proceedings under § 3582(c)(2). However, he asks this panel to
revisit this holding in light of Spears v. United States, 129 S. Ct. 840 (2009).
We have, on several occasions, reaffirmed our holding that in § 3582(c)(2)
proceedings, a district court lacks authority to reduce a defendant's sentence below the
amended Guidelines range and that such proceedings do not constitute a full
resentencing of the defendant. United States v. Hall, No. 09-1043, 2009 WL 4062876,
at *1 n.2 (8th Cir. Nov. 25, 2009) (unpublished per curiam); see also United States v.
Mull, No. 09-2703, 2010 WL 521003, at *1 (8th Cir. Feb. 16, 2010) (unpublished per
curiam) ("These arguments are foreclosed by our decision in United States v. Starks,
551 F.3d 839, 842 (8th Cir.), cert. denied, 129 S. Ct. 2746 (2009), that 'neither the
Sixth Amendment nor [United States v. Booker, 543 U.S. 220 (2005),] prevents
Congress from incorporating a guideline provision as a means of defining and limiting
a district court's authority to reduce a sentence under § 3582(c).' [The defendant]
argues that Starks was incorrectly decided, but as a panel we may not reconsider it.");
United States v. Lucas, No. 09-1684, 2010 WL 251671, at *1 (8th Cir. Jan. 25, 2010)
(unpublished per curiam) ("The district court correctly applied 18 U.S.C. § 3582(c)
and U.S.S.G. § 1B1.10(b)(2)(A) as construed in Starks, which is binding on our panel.
We reject [the defendant's] contention that Spears v. United States, 129 S. Ct. 840
(2009)—a decision that did not mention § 3582(c)(2)—permits us to revisit the
decision of another panel in Starks."); United States v. Abdullah, No. 09-2178, 2010
WL 199639, at *1 (8th Cir. Jan. 22, 2010) (unpublished per curiam) ("Section
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3582(c)(2) and guideline § 1B1.10(b)(2)(A) limit a district court's authority to reduce
sentences following the retroactive reduction of a guidelines sentencing range. In
Starks, we held that those limitations remain constitutional and enforceable. 551 F.3d
at 843. Accordingly, the district court lacked authority to sentence [the defendant]
below the guidelines range.").
"We are bound by circuit precedent to affirm the district court's decision in this
case." Hall, 2009 WL 4062876, at *1 (citing United States v. Betcher, 534 F.3d 820,
823–24 (8th Cir. 2008)).
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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