United States v. Harris

556 F.3d 887, 2009 U.S. App. LEXIS 3752, 2009 WL 465945

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 26, 2009
• Docket: 08-2774
• Status: Published

Opinions

PER CURIAM.

In 2002, Walter Harris was convicted of conspiracy 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 1.5 kilograms or more of cocaine base, calculated a guideline range of 360 months to life imprisonment under the then-mandatory guidelines, and sentenced Harris to 360 months’ imprisonment.² In January 2008, Harris moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c) and Amendment 706 to the sentencing guidelines, which was declared retroactive by the Sentencing Commission. Amendment 706 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 an evidentiary hearing and oral argument to present evidence in support of a further reduction in his sentence based on 18 U.S.C. § 3553(a).

The district court calculated an amended guideline range of 324 to 405 months under the retroactive amendment and resen-tenced Harris to 324 months’ imprisonment. The court denied Harris’s request for an evidentiary hearing and oral argument, stating that it did not have authority to conduct a full resentencing, and that Harris was “simply entitled to an adjustment of his sentence using the new guideline level.”

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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing guidelines are only advisory. Harris’s argument is foreclosed by our recent decision in United States v. Starks, 551 F.3d 839 (8th Cir.2009). 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.

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 § lB1.10(b)(2)(A). Accordingly, the district court correctly determined that it lacked authority to reduce Harris’s sentence to a term of less than 324 months’ imprisonment. The court did not err in refusing to consider a further reduction based on § 3553(a) or to hold an evidentia-ry hearing for that purpose.

For these reasons, the judgment of the district court is affirmed.

1 . The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska.

2 . This district court also sentenced Harris to a concurrent 120-month sentence for a conviction under 18 U.S.C. § 922(g)(1). That aspect of the original sentence is not at issue in this appeal.