                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-2345
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      * Appeal from the United States
                                      * District Court for the Western
v.                                    * District of Missouri.
                                      *
Deandre Scroggins,                    * [UNPUBLISHED]
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: June 14, 2010
                                Filed: June 23, 2010
                                 ___________

Before MURPHY, BEAM, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.

       In 2004, Deandre J. Scroggins was found guilty of possession with intent to
distribute crack cocaine. The district court determined a Guidelines sentencing range
of 168 to 210 months’ imprisonment and imposed a sentence of 175 months. After
the Sentencing Commission reduced by two levels the offense level applicable to
crack cocaine offenses in Amendments 706 and 711 of the Guidelines, Scroggins
moved for modification of his sentence under 18 U.S.C. § 3582(c)(2). The district
court1 granted a two-level reduction, reducing the advisory range to 135 to 168
months. The district court re-sentenced Scroggins to 135 months’ imprisonment.

       Scroggins appeals, arguing that the district court erred when it considered the
Guidelines mandatory in applying § 3582(c)(2) and the policy statements in U.S.S.G.
§ 1B1.10. This argument is foreclosed by this court’s decision in United States v.
Starks, 551 F.3d 839 (8th Cir. 2009), cited by United States v. Dillon, 572 F.3d 146,
150 (3d Cir. 2009), aff’d, No. 09-6338, slip op. at 14 (S. Ct. June 17, 2010). As the
Supreme Court held, “proceedings under § 3582(c)(2) do not implicate the Sixth
Amendment right to have essential facts found by a jury beyond a reasonable doubt.”
Id. at 11. Therefore, the district court correctly applied 18 U.S.C. § 3582(c) and
U.S.S.G. § 1B1.10(b)(2)(A). The judgment of the district court is affirmed.
                       ______________________________




      1
         The Honorable Ortrie D. Smith, United States District Court for the Western
District of Missouri.

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