United States v. Kevin Jones , 325 F. App'x 463 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2996
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United States of America, *
*
Appellee, *
* Appeal from the United States
vs. * District Court for the
* District of Nebraska
Kevin Jones, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 13, 2009
Filed: April 14, 2009
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Before MURPHY and SMITH, Circuit Judges, and KAYS,1 District Judge.
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PER CURIAM.
Appellant Kevin Jones filed a motion to reduce his sentence pursuant to 18
U.S.C. § 3582(c)(2). The district court2 granted Jones a two level reduction and
imposed a 120 month within the Guidelines sentence. Jones appeals the court’s
refusal to grant more than a two-level reduction in the offense level. We affirm.
1
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri, sitting by designation.
2
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
I. Background
In 1998 Kevin Jones plead guilty by agreement to an amended information
charging him with possession with intent to distribute cocaine base, commonly known
as “crack cocaine,” and using or carrying a firearm in connection with a drug
trafficking crime. In 1999 the district court,3 applying the mandatory sentencing
guidelines in effect prior to United States v. Booker4 sentenced Jones to 162 months
for distribution of crack cocaine to be served consecutively with a 60 month sentence
for carrying a handgun in conjunction with a drug offense. The 162 month sentence
was the maximum under the guideline range of 130 to 162 months resulting from an
offense level of 27 and a criminal history category VI.
On November 1, 2007, Amendment 706 to the Sentencing Guidelines went into
effect lowering sentencing ranges for crack cocaine offenses by two offense levels.
Amendment 713 subsequently made this change retroactive.
On June 24, 2008, Jones filed a motion under 18 U.S.C. § 3582(c)(2) seeking
to reduce his sentence on the distribution charge based on the retroactive Guideline
Amendment.5 The district court held a hearing on August 11, 2008, determined Jones
was entitled to a sentence adjustment, and reduced his sentence on the distribution
charge to 120 months, a sentence in the middle of his newly adjusted guideline range
of 110 to 137 months.
Jones appeals.
3
The Honorable William G. Cambridge, United States District Judge for the
District of Nebraska. This case was assigned to Judge Smith Camp on May 16, 2006
following Judge Cambridge’s retirement.
4
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
5
Jones did not seek to reduce his sentence on the firearms charge, and that
aspect of his sentence is not at issue in this appeal.
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II. Discussion
We review de novo a district court’s legal conclusions about the scope of its
authority under 18 U.S.C. § 3582(c)(2). United States v. Lewis, 557 F.3d 601, 613
(8th Cir. 2009). We review for abuse of discretion a district court’s decision to reduce
a sentence under 18 U.S.C. § 3582(c)(2). United States v. Wyatt, 115 F.3d 606, 609
(8th Cir. 1997).
Section 3582(c)(2) provides that “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 pursuant to 28 U.S.C. §
994(0), . . . 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 applicable policy statement here is
provided by section 1B1.10 of the Sentencing Guidelines, which states that
proceedings under § 3582(c)(2) are not full resentencings and that a district court may
not reduce a sentence to a term less than the minimum amended guideline range. U.S.
Sentencing Guidelines Manual § 1B1.10(b)(2)(A) (2007).
Jones argues that the district court improperly limited his sentence reduction to
a two-level reduction in the offense level. He argues that the district court erred in not
recognizing that Booker applies to resentencings under § 3582(c)(2), erred in treating
the amended guideline range as the default range, and abused its discretion in not
finding that the amended guideline range was still greater than necessary to serve the
sentencing goals of § 3553(a). All of his arguments turn on whether Booker applies
to his resentencing or not.
We recently held in United States v. Starks that Booker does not apply to
resentencings under § 3582(c). 551 F.3d 839, 840 (8th Cir. 2009). In Starks we
observed that “sentence reductions based on retroactive guideline amendments” are
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sentence modification proceedings governed by § 3582(c), and that in enacting §
3582(c) Congress limited the authority of a district court to modify a sentence. Id. at
841-42. We further noted that this limitation does not raise the constitutional concerns
at issue in Booker, and that Booker did not invalidate § 3582(c). Id. We concluded
that a district court may not reduce a sentence below the amended guideline range, and
that it was not error for a district court “to refuse to consider a further reduction based
on § 3553(a) or to hold an evidentiary hearing for that purpose.” Id. at 843; accord
United States v. Dunphy, 551 F.3d 247 (4th Cir. 2009); United States v. Rhodes, 549
F.3d 833 (10th Cir. 2008); but see United States v. Hicks, 472 F.3d 167 (9th Cir.
2007).
Consistent with Starks, we hold that the district court did not err in limiting
Jones’ sentence reduction to a two-level reduction in the offense level. We affirm.
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