                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1777
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the
                                        *    District of Minnesota.
Raymond Damon Smith,                     *
                                        *    [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: October 19, 2009
                                Filed: October 26, 2009
                                 ___________

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

PER CURIAM.

      In 2003, Raymond Smith received a sentence of 400 months after he was found
guilty of conspiracy to distribute and possession with intent to distribute
approximately 1,912 grams of cocaine base (commonly known as "crack"). Smith
brought a motion under 18 U.S.C. § 3582(c) for a reduction in his sentence pursuant
to a guidelines amendment (Amendment 706) which reduced the advisory base
offense level for crack offenses by two levels. He also asked the district court1 to
appoint counsel and conduct a full resentencing in order to weigh all the factors set

      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
forth in 18 U.S.C. § 3553(a) in support of a greater sentence reduction. The district
court calculated an amended advisory guidelines range of 324-405 months, but
declined to modify Smith's sentence, citing the scope and duration of Smith's criminal
activities.

      Smith appeals, arguing the district court had authority to conduct a full
resentencing and erred by not doing so. He acknowledges his argument is foreclosed
by United States v. Starks, 551 F.3d 839, 843 (8th Cir. 2009) (concluding district
courts do not have authority, in resentencing proceedings resulting from the crack
cocaine amendments, to conduct full resentencings or grant reductions beyond the
two-level decrease authorized by the Sentencing Commission), but brings this appeal
in order to preserve the issue for further review.

       Smith further argues the district court abused its discretion in failing to modify
Smith's sentence.2 The district court's decision not to reduce a sentence under 18
U.S.C. § 3582(c) is reviewed for abuse of discretion. United States v. Wyatt, 115 F.3d
606, 609 (8th Cir. 1997). Smith concedes his 400-month sentence falls within the
recalculated guidelines range, but nonetheless argues the court abused its discretion.
We disagree. The district court, in its order, based its decision on trial testimony
showing Smith was spotted by police in his yard with a brick of cocaine and a pistol.
Smith was arrested shortly thereafter in his residence, and the police seized a loaded
gun, scales, cash, a bullet proof vest, and surveillance cameras. The district court also
considered Smith's prior conviction for unlawful sexual intercourse with a minor.
Having reviewed the record, we conclude the district court did not abuse its discretion
in declining to modify Smith's sentence.




      2
        Smith also contends that the district court should have reduced his sentence to
a level below the low end of the guidelines range. This argument is foreclosed by
Starks, 551 F.3d at 840.

                                          -2-
We affirm the judgment of the district court.
                ______________________________




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