                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 09-1325
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Lewis C. Curry,                        *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: September 24, 2009
                                 Filed: November 9, 2009
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
                             ___________

WOLLMAN, Circuit Judge.

      Lewis Curry appeals the district court’s1 denial of his motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2). We affirm.

                                        I.

     In 2005, Curry was charged with possession with intent to distribute five or
more grams of cocaine base, commonly know as “crack.” The Presentence

      1
       The Honorable Catherine D. Perry, now Chief Judge, United States District
Court for the Eastern District of Missouri.
Investigation Report calculated that the guideline range for Curry’s offense was
between 92 and 115 months. Because Curry had several prior felony convictions
involving controlled substances, however, the government had the option of filing a
notice of those offenses under 21 U.S.C. § 851, which would have subjected Curry to
a mandatory 120-month minimum sentence. In exchange for Curry’s guilty plea, the
government agreed not to file the § 851 notice and to recommend a 100-month
sentence.

      At the sentencing hearing, both Curry and the government referenced the
government’s forbearance of the § 851 notice and encouraged the district court to
accept the parties’ joint recommendation of 100 months. Concluding that 100 months
was a reasonable sentence under the circumstances, the district court accepted the
recommendation and sentenced Curry accordingly.

       In April 2008, Curry filed a motion to reduce his sentence based on Amendment
706 to the United States Sentencing Guidelines, which reduced the base offense level
for various quantities of crack cocaine. Under 18 U.S.C. § 3582(c)(2), a defendant
may be eligible for a sentence reduction if he is currently serving a sentence for a
crack cocaine offense and the amendment has lowered the guideline range under
which he was originally sentenced. See United States v. Gamble, 572 F.3d 472, 474
(8th Cir. 2009) (discussing Amendment 706).

       Both parties agreed that Curry qualified for a possible sentence reduction and
that application of the amendment would have resulted in a guideline range of 77 to
96 months. The government argued, however, that the court should deny Curry’s
motion or, in the alternative, impose a sentence of no less than 83 months. In a four-
page order that included substantial discussion of the procedural history and
applicable law, the court denied Curry’s motion. The court acknowledged that Curry
qualified for a sentence reduction, but concluded that a reduction was inappropriate
because of Curry’s extensive criminal history and the fact that his 100-month sentence

                                         -2-
was negotiated with the government. The court was particularly influenced by
Curry’s criminal history, observing that most of his eleven prior convictions were for
serious felonies, including weapons offenses, resisting arrest, and assault of a law
enforcement officer.

                                          II.

       We review a district court’s denial of a sentence reduction motion for abuse of
discretion. United States v. Whiting, 522 F.3d 845, 852-53 (8th Cir. 2008). In United
States v. Wyatt, we stated that a district court considering a motion to modify a
sentence should make two determinations:

      First, by substituting only the amended sentencing range for the
      originally determined sentencing range, and leaving all other previous
      factual decisions concerning particularized sentencing factors . . . intact,
      the district court must determine what sentence it would have imposed
      had the new sentencing range been the range at the time of the original
      sentencing. Second, . . . the district court must consider [the first]
      determination together with the general sentencing considerations
      contained in section 3553(a) and, in the exercise of its thus informed
      discretion, decide whether or not to modify the original sentence
      previously imposed.

115 F.3d 606, 609 (8th Cir. 1997).

       Citing the language in Wyatt, Curry contends that the district court abused its
discretion by failing to state what sentence it would have imposed if the amended
guideline had been in effect when he was originally sentenced. The Wyatt
formulation, however, has been abrogated by changes to the Guidelines. District
courts are no longer required to consider what sentence they would have originally
imposed had the amended guideline been in effect. See United States v. Chaney, 581
F.3d 1123, 1126-27 (9th Cir. 2009).

                                          -3-
      The two-step process discussed in Wyatt was derived from U.S.S.G. §
1B1.10(b). Wyatt, 115 F.3d at 608-09. When we decided Wyatt, § 1B1.10(b)
provided that “the court should consider the term of imprisonment that it would have
imposed had the amendment(s) to the guidelines . . . been in effect at the time the
defendant was sentenced . . . .” In 2008, the Sentencing Commission eliminated the
language requiring that a court consider the sentence it would have imposed. Section
1B1.10(b) now simply states that “the court shall determine the amended guideline
range that would have been applicable to the defendant if the amendment(s) . . . had
been in effect at the time the defendant was sentenced.” There is no dispute that the
amended guideline range was accurately determined in this case.

       The district court recognized that Curry was eligible for a sentence reduction,
and the parties agreed that the amended sentencing range would have been between
77 and 96 months. The district court made clear why it believed 100 months was and
continued to be an appropriate sentence, even in light of the crack cocaine
amendment. Specifically, the court emphasized Curry’s extensive criminal history
and noted that the 100-month sentence was the product of a negotiation in which the
government agreed not to seek a 120-month mandatory minimum. Accordingly, the
court did not abuse its discretion in failing to explicitly state what sentence it would
have imposed had the amendment been in effect when Curry was originally sentenced.



       Curry next argues that the district court abused its discretion in considering the
government’s forbearance of the § 851 notice as a ground for denying his motion.
Curry again cites Wyatt, in which we held that a district court should not speculate
about what other charges the government might have pursued if the defendant had not
pled guilty. 115 F.3d at 609. We also noted, however, that the district court was “free
to consider the complete nature of the defendant’s crime pursuant to section 3553(a).”
Id. Curry maintains that the district court engaged in prohibited speculation when it
referred to his negotiation with the government to avoid the mandatory minimum

                                          -4-
sentence. We disagree. In Wyatt, the government’s ability to obtain a lengthier
sentence was uncertain. The record did not clearly establish what additional charges
could have been brought and what type of sentence the defendant would have
received.

       In this case, it is undisputed that the government could have obtained a longer
prison term when Curry was originally sentenced. As noted above, both parties
acknowledged at Curry’s sentencing that the government had intentionally refrained
from filing notice of Curry’s prior convictions. Curry does not contest the existence
of those convictions or that the government had the ability to invoke the 120-month
mandatory minimum. Thus, the district court’s observation that Curry’s 100-month
sentence was the product of negotiation was an accurate reflection of the record and
not speculation regarding what might otherwise have occurred.

      The judgment is affirmed.2
                      ______________________________




      2
        We likewise reject Curry’s argument that the district court failed to consider
whether a sentence reduction would have posed a danger to any person or the
community. See U.S.S.G. § 1B1.10 cmt. n.1(B)(ii). The court’s discussion of Curry’s
prior violent felonies—which, as previously discussed, included weapons offenses and
assault on a law enforcement officer— demonstrates that the court took this factor into
consideration.

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