                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-1268
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District of
                                        * Nebraska.
Carlton Ivory,                          *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: June 14, 2010
                                Filed: July 29, 2010
                                 ___________

Before BYE, CLEVENGER,1 and COLLOTON, Circuit Judges,
                            ___________

PER CURIAM.

       After being charged with and pleading guilty to possession with intent to
distribute both cocaine base (crack cocaine) and cocaine, Carlton Ivory was sentenced
to 121 months imprisonment under United States Sentencing Guidelines Manual
(U.S.S.G.) § 2D1.1. On October 6, 2009, Ivory filed a motion for a sentence reduction




      1
       The Honorable Raymond C. Clevenger, III, Judge of the United States
Court of Appeals for the Federal Circuit, sitting by designation.
under 18 U.S.C. § 3582(c)(2). The district court2 granted a two-level reduction and
resentenced him to 100 months imprisonment, the bottom of the amended guideline
range. Ivory appeals arguing the use of the two-level reduction violates the ex post
facto clause and the district court improperly limited its resentencing authority under
§ 3582(c)(2). We affirm.

      On September 7, 2006, Ivory was sentenced to 121 months' imprisonment under
U.S.S.G. § 2D1.1. The Sentencing Commission changed the calculation used to
determine the base offense for a defendant convicted of distributing both crack
cocaine and one or more other controlled substances under Amendment 706 on
November 1, 2007. This Amendment became retroactive on March 3, 2008, pursuant
to Amendment 713. The Sentencing Commission amended the Guidelines again on
May 1, 2008, to address anomalies in the new calculation. See United States v.
Sipple, 544 F. Supp. 2d 859, 860-61 (D. Minn. 2008). The new Amendment,
Amendment 715, created a uniform two-level reduction and replaced Amendment
706. Ivory argued the district court should re-sentence him under Amendment 706,
which would have reduced his sentence to eighty-four months, instead of Amendment
715, which reduced his sentence to 100 months. The district court applied
Amendment 715.

       Ivory argues the use of Amendment 715 to determine his sentence reduction,
as opposed to Amendment 706, violates the ex post facto clause of the United States
Constitution, which states "[n]o ex post facto Law shall be passed." U.S. Const. Art.
I, § 9. Ivory's sentence was reduced from 121 months to 100 months and the
application of Amendment 715 created a lesser punishment than that imposed when
he was originally sentenced. Therefore, because Ivory's sentence was not increased
by the later amendments, there is no ex post facto violation.


      2
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

                                         -2-
       Ivory also argues the district court had the authority to reduce his sentence
below the amended guideline range pursuant to United States v. Booker, 543 U.S. 220
(2005). We have already considered this issue and decided "neither the Sixth
Amendment nor Booker prevents Congress from incorporating a guideline provision
as a means of defining and limiting a district court's authority to reduce a sentence
under § 3582(c)." United States v. Starks, 551 F.3d 839, 842 (8th Cir. 2009)
(emphasis added). The district court's authority to "reduce a defendant's sentence is
constrained by the limiting provisions of § 3582(c)(2) and the restrictions established
in § 1B1.10(b)(2)(A)." United States v. Wagner, 563 F.3d 680, 682 (8th Cir. 2009);
but cf. id. at 682-83. The Supreme Court recently agreed with this analysis. Dillon
v. United States, No. 09-6338, at *5-8 (U.S. June 17, 2010). The applicable policy
statement under U.S.S.G. § 1B1.10(b)(2)(A) states a defendant's term of imprisonment
cannot be less than the minimum of the amended guideline range. Ivory's amended
guideline range was 100-125 months. The district court properly applied Amendment
715 by limiting its reduction of Ivory's sentence to 100 months imprisonment.

      Ivory's claim that resentencing under the limitations of 18 U.S.C. § 3582(c)(2)
produced a "greater than necessary" punishment under 18 U.S.C. § 3553(a) is without
merit. Ivory was sentenced to the minimum of the amended guideline range (100
months) after the two-level reduction. As we decided in Starks, the district court was
required to re-sentence Ivory within the amended guideline range. 551 F.3d at 842-43.
The district court had no discretion to give a lower sentence than that granted to Ivory.

      Accordingly, we affirm.
                    _______________________________




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