                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 08-2726
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United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Eastern District of Arkansas.
Anthony Terrell Harris, also known       *
as Buddy,                                *
                                         *      [UNPUBLISHED]
            Appellant.                   *

                                ________________

                            Submitted: March 9, 2009
                                Filed: March 30, 2009
                                ________________

Before GRUENDER, ARNOLD and BENTON, Circuit Judges.
                       ________________

PER CURIAM.

       On July 11, 2007, a superseding indictment was returned against Anthony
Terrell Harris, charging him with three counts of distribution of cocaine base in
violation of 21 U.S.C. § 841(a)(1), one count of aiding and abetting possession of
cocaine base with intent to distribute in violation of 18 U.S.C. § 2 and 21 U.S.C. §
841(a)(1), and one count of aiding and abetting possession of cocaine with intent to
distribute in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1).
       On January 18, 2008, Harris pled guilty to aiding and abetting possession with
the intent to distribute approximately 106.5 grams of a mixture or substance
containing a detectable amount of cocaine base. The plea agreement stipulated that
the drug quantity was between 100 and 150 grams of cocaine base and that the
statutory mandatory minimum sentence was 120 months’ imprisonment. See 21
U.S.C. § 841(b)(1)(A). At the change of plea hearing, the district court1 reminded
Harris that he faced a sentence of not less than 120 months’ imprisonment and not
more than life. On July 25, 2008, the district court sentenced Harris to the statutory
mandatory minimum of 120 months’ imprisonment and five years’ supervised release.

      Harris argues that the sentence is improper because he should have been
sentenced below the statutory mandatory minimum based on Amendment 706 to the
United States Sentencing Guidelines and Kimbrough v. United States, 552 U.S. ---,
128 S. Ct. 558 (2007); because he should have been given credit for time served while
he was under pre-trial house arrest; and because the statutory mandatory minimum
does not apply where the Government did not provide evidence of the purity of the
crack cocaine. Each of these arguments fails.

       In reviewing a sentence, we review legal conclusions de novo. United States
v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir. 2005). We reject Harris’s first argument
because neither Amendment 706 nor Kimbrough provides authority for a sentence
below the statutory mandatory minimum. Amendment 706 reduced the base offense
level for crack cocaine offenses in U.S.S.G. § 2D1.1(c). Harris argues that the district
court should have retroactively applied Amendment 706 to reduce his sentence.
However, Harris’s sentence of 120 months’ imprisonment was at the statutory
mandatory minimum, which was not affected by Amendment 706. See United States
v. Jones, 523 F.3d 881, 882 (8th Cir. 2008) (per curiam). Although Kimbrough allows


      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.

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a district court to vary from the advisory guidelines range based on its disagreement
with the guidelines’ crack/powder cocaine ratio, Kimbrough does not authorize a
sentencing court to impose a sentence below the statutory mandatory minimum.
United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 2008).

        We reject Harris’s second argument because the Bureau of Prisons, not the
district court, determines the credit for time served, so the district court properly left
that issue to the discretion of the Bureau of Prisons. See United States v. Pardue, 363
F.3d 695, 699 (8th Cir. 2004) (citing United States v. Iversen, 90 F.3d 1340, 1344-45
(8th Cir. 1996)). In any event, house arrest imposed as a condition of pre-trial release
is not “‘official detention’ within the meaning of [18 U.S.C.] § 3585(b).” United
States v. Wickman, 955 F.2d 592, 593 (8th Cir. 1992) (en banc) (per curiam).

       Finally, we reject Harris’s third argument because the Government need not
provide evidence of the purity of the crack cocaine for a sentence pursuant to the
statutory mandatory minimum. See Chapman v. United States, 500 U.S. 453, 459-68
(1991) (holding that, unless otherwise specified, the purity of a controlled substance
is not a factor for sentencing under 21 U.S.C. § 841(b)).

      Accordingly, we affirm Harris’s sentence.
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