United States Court of Appeals
For the Eighth Circuit
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No. 12-2857
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sterling McKoy, also known as Jerome, also known as Mr. Mafioso
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: August 9, 2012
Filed: August 28, 2012
[Unpublished]
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Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Sterling McKoy was convicted of conspiracy to distribute crack cocaine in
2004 and was sentenced to 300 months imprisonment, a downward variance from his
guideline range of 360 months to life. In 2011 he moved for a modification of his
sentence under 18 U.S.C. § 3582(c)(2) based on amendment 706 to the sentencing
guidelines, which lowered the base offense levels for offenses involving cocaine base.
The district court concluded that the amendment did not apply retroactively and
denied the motion. McKoy appealed. We reversed and remanded, noting that the
amendment was retroactive. United States v. McKoy, 665 F.3d 968, 970 (8th Cir.
2011). On remand, the district court denied McKoy's motion, concluding that he was
not eligible for a reduction in sentence. We affirm.
The Sentencing Commission's recent changes to the policy statement applicable
to § 3582(c)(2) motions foreclose the relief McKoy seeks. See U.S.S.G. app. C (vol.
III) amend. 759 (2011); McKoy, 665 F.3d at 970 (noting changes). That policy
statement permits sentence reductions "to a term that is less than the minimum of the
amended guideline range" only if the defendant provided substantial assistance to the
government. U.S.S.G. § 1B1.10(b)(2) (2011). District courts are to "use the version
of this policy statement that is in effect on the date on which the court reduces the
defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)." U.S.S.G.
§ 1B1.10 cmt. n.6 (2011). The minimum of the amended guideline range applicable
to McKoy's offense under amendment 706 would be greater than his current sentence
of 300 months. See U.S.S.G. § 1B1.10(b)(2)(A). Since McKoy did not provide
substantial assistance and any reduction would be "to a term that is less than the
minimum of the amended guideline range," he is not eligible for a reduction under the
current version of the policy statement. See U.S.S.G. § 1B1.10(b)(2).
Accordingly, the judgment of the district court is affirmed.
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