               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 12-3769
                      ___________________________

                          United States of America,

                     lllllllllllllllllllll Plaintiff - Appellee,

                                         v.

                 Anthony S. Murphy, also known as Casper,

                   lllllllllllllllllllll Defendant - Appellant.
                                    ____________

                   Appeal from United States District Court
              for the Western District of Missouri - Kansas City
                               ____________

                           Submitted: April 8, 2013
                            Filed: August 27, 2013
                                [Unpublished]
                                ____________

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

PER CURIAM.
      Anthony Murphy appeals the district court’s1 order denying his motion to
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 750 to
the sentencing guidelines. We affirm.

       In April 2005, Murphy pleaded guilty to conspiracy to possess with intent to
distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A), 846. Murphy’s advisory guideline range was 135 to 168 months’
imprisonment, but because of a prior felony drug conviction, he was subject to a
statutory minimum of 240 months. See 21 U.S.C. §§ 841(b)(1)(A), 851. The
government moved to depart downward from the statutory minimum for substantial
assistance, pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e). The district court
granted the motion and sentenced Murphy to 144 months’ imprisonment, followed
by 8 years’ supervised release.

       Murphy moved for a sentence reduction based on 18 U.S.C. § 3582(c)(2) and
Amendment 706 to the sentencing guidelines. Section 3582(c)(2) permits a court to
reduce a defendant’s sentence when it is “based on a sentencing range that has been
subsequently lowered” by a retroactive amendment to the guidelines. A court may
not apply § 3582(c)(2), however, if the relevant guideline amendment does not lower
the defendant’s applicable guideline range. See USSG § 1B1.10(a). Amendment
706, as modified by Amendment 711, became effective on November 1, 2007, and
it was made retroactive by Amendment 713. Amendment 706 revised the drug
quantity table set forth at USSG § 2D1.1, and reduced by two levels the base offense
levels for certain cocaine base offenses. United States v. Starks, 551 F.3d 839, 840
(8th Cir. 2009). Murphy was accountable for 187 grams of cocaine base. When he
was sentenced in 2005, the quantity of cocaine base for which Murphy was



      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

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accountable resulted in an offense level of 34; under the 2007 guidelines and
Amendment 706, that quantity resulted in an offense level of 32.

       Murphy argued that because the amendment reduced his base offense level
from 34 to 32, it lowered his advisory guideline range to 108 to 135 months and thus
made him eligible for a reduction. See § 3582(c)(2); USSG § 1B1.10(c). The district
court granted a reduction to 115 months’ imprisonment. The government then moved
for reconsideration, asserting that the statutory minimum of 240 months was
Murphy’s guideline sentence, and thus the starting point for Murphy’s substantial
assistance departure. See USSG § 5G1.1(b). Because the amendment did not lower
the applicable statutory minimum, the government argued, Murphy was not eligible
for a reduction under Amendment 706 and § 3582(c)(2). The court accepted the
government’s argument and denied the reduction on reconsideration. Murphy
appealed, and this court summarily affirmed.

       In 2012, Murphy filed a second § 3582(c)(2) motion to reduce his sentence
under Amendment 750, which became effective on November 1, 2011, and was made
retroactive by Amendment 759. Amendment 750 arose from the Fair Sentencing Act
of 2010 and lowered the base offense levels for certain cocaine base offenses under
USSG § 2D1.1. The amendment reduced by four more levels the base offense level
applicable to the quantity of cocaine base for which Murphy was accountable.

       The district court reasoned that Amendment 750 had no effect on Murphy’s
guideline range because Murphy’s sentence was based on the 240-month statutory
minimum, and reductions in the statutory minima do not apply retroactively to
defendants sentenced before the enactment of the Fair Sentencing Act on August 3,
2010. We review de novo the district court’s determination that Murphy was not
eligible for a reduction under § 3582(c)(2). United States v. Logan, 710 F.3d 856,
857 (8th Cir. 2013).



                                        -3-
       Under the guidelines, “[w]here 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.” USSG § 5G1.1(b). This is true
“even when a sentencing judge has imposed a sentence below the statutory minimum
due to the defendant’s substantial cooperation.” United States v. Golden, 709 F.3d
1229, 1231 (8th Cir. 2013). Here, Murphy’s statutory minimum sentence of 240
months was greater than the maximum of his original guideline range (168 months),
so his applicable guideline sentence was 240 months. United States v. Baylor, 556
F.3d 672, 673 (8th Cir. 2009) (per curiam).

       Murphy contends that application note 1 to USSG § 1B1.10 distinguishes
between a guideline “sentence” and a guideline “range.” Application note 1 explains
that a defendant’s eligibility for a reduction under § 3582(c)(2) “is triggered only by
an amendment . . . that lowers the applicable guideline range.” USSG § 1B1.10,
comment. (n. 1(A)). Amendment 759 defines the applicable guideline range as “the
guideline range that corresponds to the offense level and criminal history
category . . . which is determined before consideration of any departure provision.”
See USSG § 1B1.10, comment. (n. 1(A)). Murphy contends that even if Amendment
750 did not alter the applicable statutory minimum, the amendment reduced his
offense level and thus lowered his “applicable guideline range.” But we rejected this
argument in Golden, 709 F.3d at 1231-32, because application note 1 instructs that
a reduction is not authorized where an amendment does not lower “the defendant’s
applicable guideline range because of the operation of . . . a statutory mandatory
minimum.” USSG § 1B1.10, comment. (n. 1(A)). When the mandatory minimum
exceeds the range for the entire offense level, the “guideline sentence” is the same as
the “guideline range,” even if the range is only one number. United States v. Trobee,
551 F.3d 835, 839 (8th Cir. 2009).

      The retroactive guideline amendments, therefore, did not lower Murphy’s
guideline range. “[T]he Fair Sentencing Act does not apply retroactively to

                                         -4-
defendants who were sentenced before August 3, 2010, and who seek a reduction in
their sentences under section 3582(c)(2).” United States v. Reeves, 717 F.3d 647, 651
(8th Cir. 2013). The district court sentenced Murphy in 2005. The 240-month
statutory minimum associated with Murphy’s cocaine base offense in 2005 applies
to his current § 3582(c)(2) proceedings. Id. Because Amendment 750 did not affect
Murphy’s guideline range, the district court lacked authority to reduce Murphy’s
sentence under § 3582(c)(2).

                                  *       *      *

      The judgment of the district court is affirmed.
                     ______________________________




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