                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2419
                                   ___________

United States of America,             *
                                      *
          Plaintiff – Appellant,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Southern District of Iowa.
Herman Sean Baylor,                   *
                                      * [PUBLISHED]
          Defendant – Appellee.       *
                                 ___________

                             Submitted: January 14, 2009
                                Filed: February 11, 2009
                                 ___________

Before BYE and GRUENDER, Circuit Judges, and KAYS, District Judge.1
                            ___________

PER CURIAM.

      The government appeals the district court’s order granting Herman Sean
Baylor's motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on
Amendment 706 to the U.S. Sentencing Guidelines Manual ("U.S.S.G"), which
reduced the base offense levels for certain cocaine base (crack) offenses. We reverse.




      1
        The Honorable Greg Kays, United States District Judge for the Western
District of Missouri, sitting by designation.
                                           I

       Baylor pleaded guilty to possessing five grams or more of crack with the intent
to deliver in violation of 21 U.S.C. § 841(a)(1). His initial advisory Guidelines range
was seventy-eight to ninety-seven months. However, because this was his second
felony drug conviction, he was subject to a statutory mandatory minimum of 120
months. See 21 U.S.C. § 841(b)(1)(B). The government moved to depart downward
from the mandatory minimum for substantial assistance under 18 U.S.C. § 3553(e).
The district court granted the government's motion, and sentenced Baylor to ninety
months imprisonment.

      After the passage of Amendment 706, which generally lowered the Guidelines
base offense level for crack offenses by two levels, Baylor moved to reduce his
sentence to within his allegedly new Guidelines range of sixty-three to seventy-eight
months. See 18 U.S.C. § 3582(c)(2). Granting his motion, the district court reduced
Baylor's sentence to seventy-five months imprisonment. The government appealed.

                                          II

       Whether the district court properly determined it had the authority to modify
a sentence under 18 U.S.C. § 3582(c)(2) is a legal question reviewed de novo. United
States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).

       A district court does not have the authority to grant a § 3582(c)(2) sentencing
reduction if the relevant Guidelines amendment does not have the effect of lowering
the defendant's applicable Guidelines range. 18 U.S.C. § 3582(c); U.S.S.G.
§ 1B1.10(a). Under the Guidelines, "where a statutorily required minimum sentence
is greater than the maximum of the applicable guideline range, the statutorily required
minimum sentence shall be the guideline sentence." U.S.S.G. § 5G1.1(b). Because
Baylor's mandatory minimum sentence of 120 months was greater than the maximum


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of his original Guidelines range (ninety-seven months), his final original Guidelines
"range" was 120 months. See United States v. Jones, 523 F.3d 881, 882 (8th Cir.
2008). Amendment 706 did not alter the statutory mandatory minimums for crack
offenses. See Kimbrough v. United States, --- U.S. ----, 128 S.Ct. 558, 574 (2007)
(noting that district courts remain "constrained by the mandatory minimums Congress
prescribed in the 1986 Act"). Thus, Baylor's Guidelines range was unaffected by
Amendment 706, and it remains 120 months. See Jones, 523 F.3d at 882. The fact
that the government originally moved to depart downwards from the mandatory
minimum did not impact Baylor's Guidelines range and thus is irrelevant. See United
States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 2008). Because Baylor's original and
post-Amendment 706 Guidelines ranges are the same, the district court did not have
the authority to grant Baylor's § 3582(c)(2) motion for a sentencing reduction. See
U.S.S.G. §1B1.10 app. note 1(A) ("[A] reduction in the defendant's term of
imprisonment is not authorized under 18 U.S.C. § 3582(c) . . . if . . . the amendment
does not have the effect of lowering the defendant's applicable guideline range
because of the operation of . . . another statutory provision (e.g., a statutory mandatory
minimum term of imprisonment.")); Jones, 523 F.3d at 882; Johnson, 517 F.3d at
1024.

                                           III

      We vacate Baylor's reduced sentence of seventy-five months imprisonment and
remand to the district court with instructions to reinstate his original sentence of
ninety months imprisonment.
                      _______________________________




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