United States v. Victor Harris , 324 F. App'x 544 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3162
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Victor C. Harris, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 17, 2009
Filed: April 30, 2009
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Before LOKEN, Chief Judge, HANSEN and COLLOTON, Circuit Judges.
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PER CURIAM.
In 2006, Victor C. Harris was convicted of conspiracy to distribute and possess
with intent to distribute fifty grams or more of cocaine base, commonly known as
“crack cocaine,” in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the
district court1 found that Harris was responsible for at least 500 grams and less than
1.5 kilograms of cocaine base, calculated an advisory guideline range of 292 to 365
months’ imprisonment, and sentenced Harris to 292 months’ imprisonment. In May
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
2008, Harris moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)
and Amendments 706 and 711 to the sentencing guidelines, which were declared
retroactive by the Sentencing Commission. Amendment 706, as modified by
Amendment 711, changed the drug quantity table set forth at USSG § 2D1.1 to
reduce the base offense level for offenses involving cocaine base by two levels.
Harris also sought a hearing to present evidence and argument in support of a further
reduction in his sentence, based on reconsideration of the sentencing factors set forth
in 18 U.S.C. § 3553(a).
The district court granted Harris’s motion in part, calculating an amended
guideline range of 235 to 293 months’ imprisonment and resentencing Harris to 235
months’ imprisonment. The court denied Harris’s request for an evidentiary hearing,
stating that it agreed with the government that the court did not have authority to
conduct a full resentencing or to reduce Harris’s sentence below the amended
guideline range.
Harris appeals, arguing that the district court erred in concluding that it did not
have authority to reduce his sentence below the amended guideline range, because
after United States v. Booker, 543 U.S. 220 (2005), the sentencing guidelines are
merely advisory. Harris’s argument is foreclosed by our decision in United States v.
Starks, 551 F.3d 839 (8th Cir. 2009), petition for cert. filed (U.S. Apr. 13, 2009) (No.
08-9839). In Starks, we held that Booker did not invalidate the requirement of
§ 3582(c) that any sentence reduction be “consistent with applicable policy statements
issued by the Sentencing Commission,” and that this limitation posed no constitutional
concerns under the Sixth Amendment. See Starks, 551 F.3d at 842-43. Therefore, the
limitations in the applicable policy statement, USSG § 1B1.10, on a district court’s
authority to reduce a sentence in a proceeding under § 3582(c) are “constitutional and
enforceable.” Id. at 843.
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Like the defendant in Starks, Harris was initially sentenced within the guideline
range. The policy statement provides that the district court could not reduce his
sentence to “a term that is less than the minimum of the amended guideline range.”
USSG § 1B1.10(b)(2)(A). Accordingly, the district court correctly determined that
it lacked authority to reduce Harris’s sentence to a term of less than 235 months’
imprisonment. The court did not err in refusing to consider a further reduction based
on § 3553(a) or to hold an evidentiary hearing for that purpose.
The judgment of the district court is affirmed.
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