                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1749
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Sterling McKoy,                         *
                                        * [PUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: December 12, 2011
                                Filed: December 30, 2011
                                 ___________

Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.

      Sterling McKoy is serving a 300 month sentence after a jury found him guilty
of conspiracy to distribute crack cocaine. McKoy filed a motion in the district court
for modification of his sentence under 18 U.S.C. § 3582(c)(2) based on the
intervening amendment 706 to the United States Sentencing Guidelines which
lowered the base offense levels for distribution of cocaine base. The district court
denied his motion on the ground that amendment 706 did not apply retroactively, and
McKoy appeals. We reverse and remand.
       Some years ago a jury found McKoy guilty of one count of conspiracy to
distribute and possess with intent to distribute 50 grams or more of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. At sentencing in 2004, the
district court found the offense involved at least 1.5 kilograms of crack cocaine,
leading to a base offense level of 38. When combined with his criminal history
category of VI, a guideline range of 360 months to life resulted. The district court
sentenced McKoy to 348 months after applying a 12 month reduction for time served.

      Less than one month after McKoy's sentencing, the Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005), and we remanded his case for
resentencing in light of that decision. At resentencing the district court varied
downward to impose a sentence of 300 months. McKoy then filed a direct appeal of
his conviction, which we affirmed. United States v. McKay, 431 F.3d 1085 (8th Cir.
2005).

         In March 2011 McKoy filed a motion for modification of his sentence under
18 U.S.C. § 3582(c)(2), which gives a district court discretionary authority to reduce
a defendant's term of imprisonment if the original sentence was "based on a
sentencing range that has subsequently been lowered by the Sentencing Commission
. . . if such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission." McKoy's motion was based on amendment 706 to the
sentencing guidelines, which became effective in 2007 and lowered the base offense
levels for offenses involving cocaine base.

      McKoy argued that application of amendment 706 would reduce his base
offense level by two levels to 36, leading to a guideline range of 324 to 405 months.
Because his original sentence of 300 months was 60 months below the bottom of his
original guideline range of 360 months, McKoy urged the district court to apply the
same 60 month reduction to the bottom of his amended guideline range and
accordingly reduce his sentence to 264 months. The district court denied McKoy's

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motion on the ground that circuit precedent foreclosed applying amendment 706
retroactively. McKoy appeals.

       The Sentencing Commission has treated amendment 706 as a retroactive
amendment which can provide the basis for a § 3582(c)(2) motion, and we have
previously recognized the retroactive nature of this amendment. See United States
v. Byers, 561 F.3d 825, 827 (8th Cir. 2009); U.S.S.G. § 1B.10(c). Our circuit by
contrast has decided that the Fair Sentencing Act of 2010, moderating mandatory
minimum cocaine base sentences, is not retroactive. See United States v. Orr, 636
F.3d 944, 958 (8th Cir. 2011). But see United States v. Hill, 417 F. App'x 560 (7th
Cir. 2011) (certiorari granted to consider the retroactivity of the Fair Sentencing Act);
United States v. Fisher, 635 F.3d 336 (7th Cir. 2011) (same). We therefore remand
to the district court to reconsider McKoy's motion in light of the fact that amendment
706 has retroactive effect.

      We note that while this appeal was pending, the Sentencing Commission made
changes to the policy statement applicable to § 3582(c)(2) motions that could
potentially impact McKoy's motion. See U.S.S.G. app. C (vol. III) amend. 759
(2011); U.S.S.G. §1B1.10(b)(2) (2011) (permitting sentence reductions below a
defendant's amended guideline range only in instances where the defendant provided
substantial assistance to the government). The Sentencing Commission's policy
statements are binding on district courts deciding § 3582(c)(2) motions. See Dillon
v. United States, 130 S. Ct. 2683, 2692–93 (2010). The newest version of the
relevant policy statement also provides that district courts should "use the version of
this policy statement that is in effect on the date on which the court reduces the
defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)." U.S.S.G.
§ 1B1.10 cmt. n.6 (2011). Upon remand, the district court will need to consider
which version of this policy statement applies.




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       Accordingly, we reverse and remand for further proceedings consistent with
this opinion.1
                      ______________________________




      1
       McKoy's pro se motion to "supplement, correct, and modify" the record is
denied because it does not pertain to the subject of the present appeal.

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