United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3681
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Floyd King, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 7, 2010
Filed: January 19, 2010
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
In 2000, Floyd King pleaded guilty to possessing with intent to distribute crack
cocaine, 21 U.S.C. § 841(a), and the District Court1 sentenced him to 292 months in
prison, the bottom of the applicable Guidelines range. Notably, King qualified as a
career offender under U.S.S.G. § 4B1.1, but because the drug-quantity base offense
level of 38 under U.S.S.G. § 2D1.1 was higher than the career-offender offense level,
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
the drug-quantity base offense level was used.2 Later, the District Court granted the
government’s motion under Rule 35 of the Federal Rules of Criminal Procedure and
reduced King’s sentence by approximately 33% to 195 months in prison.
In 2008, King filed a motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) and Guidelines Amendment 706, which provides for a 2-level reduction
in the base offense level for crack cocaine offenses. The District Court concluded that
although application of Amendment 706 reduced King’s base offense level from 38
to 36, the higher career-offender offense level of 37 applied because King qualified
as a career offender. See U.S.S.G. § 4B1.1 (directing sentencing courts to apply the
career-offender offense level if it is greater than an otherwise applicable offense
level). Thus King's new Guidelines range was 262 to 327 months in prison. After
applying a 33% reduction to the bottom of the new Guidelines range, the court
reduced King’s sentence from 195 months to 175 months in prison.
King appeals, arguing that (1) the Rule 35 reduction made the career-offender
provision inapplicable and the court should have calculated his new Guidelines range
using a base offense level of 36, not 37; (2) U.S.S.G. § 1B1.10 (2009), the Guidelines
provision on sentencing reductions under § 3852(c)(2), was rendered advisory by
United States v. Booker, 543 U.S. 220 (2005); (3) section 1B1.10’s limitation on the
District Court’s authority to reduce his sentence further was unconstitutional; and (4)
he was entitled to a hearing to seek a greater reduction based on his exemplary post-
conviction conduct and to challenge the merits of his career-offender status.
We conclude that all of King’s arguments fail. See United States v. Tolliver,
570 F.3d 1062, 1065 (8th Cir. 2009) (noting that a district court’s modification of a
sentence under § 3582(c)(2) is reviewed de novo). First, the Rule 35 reduction did not
2
The section 4B1.1 career-offender provision had the sole effect of raising
King’s Category IV criminal history to Category VI.
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affect how Amendment 706 applied. See id. at 1066 (observing that where a
defendant was originally sentenced as a career offender but the court later departed
downward, the sentencing range for purposes of determining whether Amendment 706
applied was the pre-departure range).
Second, the District Court correctly calculated King’s new Guidelines range.
Had Amendment 706 been in effect at the time of King's original sentencing, his drug-
quantity base offense level under section 2D1.1 would have been 36. Because the
career-offender offense level of 37 was higher, it would have been used to calculate
the appropriate Guidelines range. See U.S.S.G. § 1B1.10(b)(1) (noting that in
determining whether and to what extent to reduce a defendant’s sentence under
§ 3582(c) and Amendment 706, the court substitutes only the listed amendments for
the corresponding Guidelines provisions that were applied at sentencing and leaves
all other Guidelines application decisions unaffected); id. § 4B1.1 (directing
sentencing courts to apply career-offender offense level if it is greater than an
otherwise applicable offense level).
Third, Booker did not render section 1B1.10 advisory, and the limitation in that
section on a district court’s authority to reduce a prisoner’s sentence is constitutional
and enforceable. United States v. Starks, 551 F.3d 839, 841–43 (8th Cir.), cert.
denied, 129 S. Ct. 2746 (2009). Finally, King was not entitled to a hearing to present
evidence in support of a greater reduction, see id. at 843, or to challenge the merits of
his career-offender status, see United States v. Harris, 574 F.3d 971, 972 (8th Cir.
2009) (holding that proceedings under § 3582(c)(2) and § 1B1.10 do not constitute
full resentencing).
Accordingly, we affirm, and we grant counsel permission to withdraw.
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