                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3206
                                    ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Adrian L. Hudson,                      *
                                       * [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                              Submitted: April 16, 2009
                                 Filed: April 27, 2009
                                  ___________

Before MURPHY, BRIGHT, and BYE, Circuit Judges.
                           ___________

PER CURIAM.

       In 2006, Adrian Hudson pleaded guilty to possession with intent to distribute
more than five grams but less than twenty grams of cocaine base, commonly known
as "crack cocaine," in violation of 21 U.S.C. § 841. At sentencing, the district court1
found Hudson's advisory Guidelines range to be 92 to 115 months, and sentenced him
to 92 months imprisonment.




      1
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
       In 2008, Hudson moved for a reduction in his sentence pursuant to 18 U.S.C.
§ 3582(c) and Amendment 706 to the Guidelines, which reduced the base offense
level for crack offenses by two levels. He also sought an evidentiary hearing to
present evidence in support of a reduction in his sentence by more than two levels.

      The district court calculated an amended Guideline range of 77 to 96 months,
and resentenced Hudson to 77 months imprisonment. The court also denied Hudson's
request for an evidentiary hearing, stating "[w]ithout determining whether the court
has the authority to conduct a full resentencing, the court determines that a sentence
within the guidelines is appropriate and the court is not inclined to further reduce the
defendant’s sentence."

       Hudson appeals, arguing that the district court had authority to reduce his
sentence below the amended Guidelines range and erred by not doing so. His
argument, however, is foreclosed by United States v. Starks, 551 F.3d 839 (8th Cir.
2009), in which we held a resentencing court does not have the authority to reduce a
defendant's sentence to a term below the amended Guidelines range. Id. at 843. The
district court thus did not err in refusing to consider a further reduction in Hudson's
sentence.

      For these reasons, the judgment of the district court is affirmed.

BYE, Circuit Judge, with whom BRIGHT, Circuit Judge, joins, concurring.

       As I noted in my concurrence in the judgment in United States v. Harris, No.
08-2774, slip op. at 4 (Feb. 26, 2009) (Bye, J., concurring in the judgment), I disagree
with the Starks court, and would hold a resentencing court has authority to reduce a
defendant's sentence to a term below the amended Guidelines range.




                                          -2-
       That said, even if the resentencing court had the authority to reduce Hudson's
sentence below the amended Guidelines range, it is unlikely the court would have. As
the district court stated:

      The court agrees that the defendant is entitled to a two-level reduction in
      his sentence and will enter a separate Order Regarding Motion for
      Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2) containing the
      new sentence. However, the court disagrees that the defendant is entitled
      to a further reduction. Without determining whether the court has the
      authority to conduct a full resentencing, the court determines that a
      sentence within the guidelines is appropriate and the court is not inclined
      to further reduce the defendant's sentence.

Clerk's R. at 53.
                       ______________________________




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