United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2905
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Tyrone Davis, also known as T-Row, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 17, 2009
Filed: August 6, 2009
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Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Tyrone Davis appeals his reduced sentence of 194 months imprisonment, which
the district court1 imposed pursuant to Federal Rule of Criminal Procedure 35(b). We
affirm.
In January 2005, Davis pled guilty to one count of conspiracy to distribute 50
grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. In his
plea agreement, Davis accepted responsibility for over 1.5 kilograms of crack cocaine.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
However, the Presentence Investigation Report (“PSR”) concluded that Davis was
responsible for 12.1 kilograms, which resulted in a base offense level of 38. The PSR
also determined that Davis’s criminal history category was VI. At sentencing in May
2005, the district court granted Davis a three-level reduction for acceptance of
responsibility, properly calculated his Guidelines range at 292-365 months, and
sentenced him to 292 months imprisonment and 5 years supervised release. Davis
appealed his sentence, and this court affirmed. See United States v. Davis, 206 F.
App’x 625 (8th Cir. 2006) (unpublished per curiam).
In May 2008, Davis filed a motion to reduce his sentence based on 18 U.S.C.
§ 3582(c) and Amendments 706 and 711 to the Sentencing Guidelines. The district
court found that Davis was not eligible for a reduction under the crack cocaine
amendments and denied his motion. However, the government requested that the
court reduce Davis’s sentence for subsequent substantial assistance under Federal
Rule of Criminal Procedure 35(b). The court granted the government’s motion and
reduced Davis’s sentence by one-third to 194 months. Davis appeals, arguing that the
district court erred in (1) denying his motion for a reduction based on the crack
cocaine amendments and (2) not granting a greater reduction under Rule 35(b).
Davis’s first argument fails because the crack cocaine amendments did not
“have the effect of lowering [Davis’s] applicable guideline range.” United States
Sentencing Commission, Guidelines Manual, §1B1.10(a)(2)(B), p.s. (Nov. 2008).
Indeed, the base offense level for offenses involving 4.5 kilograms or more of crack
cocaine is the same under the amended Sentencing Guidelines. Compare USSG
§2D1.1(c)(1) (Nov. 2004) (base offense level of 38 for “1.5 KG or more of Cocaine
Base”), with USSG §2D1.1(c)(1) (Nov. 2008) (base offense level of 38 for “4.5 KG
or more of Cocaine Base”). Consequently, the crack cocaine amendments “do[] not
apply where more than 4.5 kilograms of crack is involved.” United States v. Wanton,
525 F.3d 621, 622 (8th Cir. 2008) (per curiam) (citing USSG §2D1.1, comment.
(n.10(D)(ii)). Because his original sentence was based on a drug quantity of 12.1
-2-
kilograms, the district court correctly found that Davis was not eligible for a sentence
reduction under 18 U.S.C. § 3582(c) and Amendments 706 and 711.2
Davis’s second argument fails because we lack jurisdiction to hear his appeal
of the district court’s ruling on the government’s Rule 35(b) motion. See United
States v. Haskins, 479 F.3d 955, 957 (8th Cir. 2007) (per curiam). “Jurisdiction over
an appeal of a Rule 35(b) sentence is governed by 18 U.S.C. § 3742(a)[.]” Id. Section
3742(a) reads:
A defendant may file a notice of appeal in the district court for review of
an otherwise final sentence if the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or
(3) is greater than the sentence specified in the applicable
guideline range . . . ; or
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.
18 U.S.C. § 3742(a). Davis does not claim that his sentence satisfies any of these
criteria, and we conclude that it does not. Therefore, we lack jurisdiction to review
the extent of the sentence reduction that the district court granted pursuant to Rule
35(b). Accordingly, we affirm Davis’s sentence.
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2
Davis further argues that the crack cocaine amendments are merely advisory
and, under 18 U.S.C. § 3553(a), the district court could have granted him more than
a two-level reduction. We have already rejected this argument. See United States v.
Starks, 551 F.3d 839, 841-43 (8th Cir.), cert. denied, 129 S. Ct. 2746 (2009) (holding
that, in 18 U.S.C. § 3582(c) resentencing proceedings, district courts do not have
authority to grant reductions beyond the two-level decrease authorized by the crack
cocaine amendments).
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