                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1164
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Deshaun Raffles Murphy,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 8, 2009
                                Filed: August 3, 2009
                                 ___________

Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       In 1996, Deshaun Murphy was convicted in federal court of several drug
trafficking offenses involving crack cocaine. At sentencing, the district court found
that Murphy was responsible for 800 grams of cocaine base, calculated a guideline
range of 262 to 327 months’ imprisonment under the then-mandatory sentencing
guidelines, and sentenced Murphy to 300 months’ imprisonment.1

      1
        The court also sentenced Murphy to a consecutive term of 60 months’
imprisonment for aiding and abetting the use or carrying of a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and 924(c). That
aspect of the original sentence is not at issue in this appeal.
       In January 2008, Murphy moved for a reduction in his sentence pursuant to 18
U.S.C. § 3582(c) and Amendment 706 to the sentencing guidelines, which was
declared retroactive by the Sentencing Commission. Amendment 706, as modified
by Amendment 711, changed the drug quantity table set forth at USSG § 2D1.1 to
reduce the base offense levels for offenses involving crack cocaine by two levels. In
light of the “new landscape” of sentencing after United States v. Booker, 543 U.S. 220
(2005), and Kimbrough v. United States, 128 S. Ct. 558 (2007), Murphy urged the
court to consider imposing a sentence at “the low end of the new Guideline range of
210 months.” He also asked the court to reconsider his base offense level because the
jury did not make a finding of drug quantity.

       On December 8, 2008, the district court2 granted Murphy’s motion in part. The
court calculated an amended guideline range of 210 to 262 months’ imprisonment, and
resentenced Murphy to 240 months’ imprisonment. The court declined to decide
whether it should treat the amended guideline range as advisory, and stated that it
would impose the same sentence whether or not it had authority to vary from the
amended guideline range. The court also rejected Murphy’s argument that the court
should recalculate the base offense level. On December 19, Murphy moved for
reconsideration, arguing that he should not have been subject to any mandatory
minimum sentence. The district court denied the motion on December 23. Acting pro
se, Murphy filed a notice of appeal, which was docketed by the clerk of the district
court on January 13, 2009.

       On appeal, Murphy argues that the district court erred in failing to conduct a
full resentencing or to consider a sentence below the amended guideline range. He
contends that the court has authority to do so based on the Supreme Court’s holding
in Booker that the sentencing guidelines are effectively advisory.


      2
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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       The government’s brief in response questions whether this court lacks
jurisdiction on the ground that Murphy’s notice of appeal was untimely. After
briefing, however, Murphy filed a declaration in accordance with Federal Rule of
Appellate Procedure 4(c)(1), which satisfies us that the appeal is timely. See Sulik v.
Taney County, 316 F.3d 813, 814 (8th Cir. 2003).

        Turning to the merits, we review for plain error Murphy’s contention that the
district court should have reduced his sentence below the amended guideline range,
because Murphy did not raise this argument in his § 3582(c) motion or in his motion
for reconsideration.3 Murphy’s argument that the district court should have conducted
a full resentencing and varied below the amended guideline range is foreclosed by our
decision in United States v. Starks, 551 F.3d 839 (8th Cir. 2009), cert. denied, 129 S.
Ct. 2746 (2009).

       In Starks, we held that Booker did not invalidate the requirement of § 3582(c)
that any sentence reduction be “consistent with applicable policy statements issued by
the Sentencing Commission,” and that this limitation posed no constitutional concerns
under the Sixth Amendment. 551 F.3d at 842-43. Therefore, the limitations in the
applicable policy statement, USSG § 1B1.10, on a district court’s authority to reduce
a sentence in a proceeding under § 3582(c) are “constitutional and enforceable.” 551
F.3d at 843. For a defendant like Murphy, who was initially sentenced within the
guideline range, the policy statement provides that the district court may not reduce
his sentence to “a term that is less than the minimum of the amended guideline range.”
USSG § 1B1.10(b)(2)(A). Accordingly, the district court lacked authority to reduce



      3
        We need not determine whether Murphy’s notice of appeal properly challenges
the district court’s first order denying the § 3582(c) motion, as well as the order
denying his motion for reconsideration, see Fed. R. App. P. 3(c)(1)(B); Greer v. St.
Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001), because we would review
the claim for plain error in either case.

                                         -3-
Murphy’s sentence to a term of less than 210 months’ imprisonment, the minimum of
Murphy’s amended guideline range.

       Murphy contends that we should not follow Starks because it was wrongly
decided and conflicts with United States v. Mihm, 134 F.3d 1353 (8th Cir. 1998).
Mihm held that the safety valve provision of 18 U.S.C. § 3553(f), which allows a
district court to sentence below the statutory minimum in certain circumstances, could
apply for the first time at a sentence reduction proceeding under § 3582(c)(2). 134
F.3d at 1355-56. The court explained that when reducing a sentence pursuant to
§ 3582(c)(2), “the district court must consider all relevant statutory sentencing
factors,” including § 3553(f). Id. at 1355. Murphy argues that to comply with the
analysis in Mihm, a district court presented with a § 3582(c) motion must conduct a
new sentencing hearing at which it considers the factors in 18 U.S.C. § 3553(a) and
follows the direction of § 3553(a) to impose a sentence that is “sufficient, but not
greater than necessary” to comply with the statutory sentencing objectives.

       This precise argument was not raised in Starks, but there is no conflict between
Starks and Mihm. Starks recognized that Congress limited the authority of a district
court to reduce a sentence based on retroactive amendments to the sentencing
guidelines. The governing statute incorporates the “applicable policy statements
issued by the Sentencing Commission,” 18 U.S.C. § 3582(c), and those statements
provide, with exceptions not relevant here, that a district court may not reduce a
sentence below the amended guideline range derived from the amended guidelines.
USSG § 1B1.10(b)(2)(A). Mihm held only that in determining the amended guideline
range, the district court should consider the statutory limitation on the applicability of
statutory minimum sentences set forth in § 3553(f). As the en banc court clarified in
United States v. Hasan, 245 F.3d 682 (8th Cir. 2001) (en banc), Mihm did not hold
that a sentencing court is authorized to sentence below the amended guideline range
based on the departure provisions of the guidelines or the factors set forth in
§ 3553(a). Id. at 685, 689-90. Rather, the court must comply with the specific

                                           -4-
requirements of § 3582(c), including the direction that reductions be consistent with
USSG § 1B1.10. See United States v. Fanfan, 558 F.3d 105, 109 (1st Cir. 2009)
(distinguishing Mihm and agreeing with Starks).

      Therefore, as in Starks, the district court lacked authority to reduce Murphy’s
sentence below his amended guideline range, and Murphy’s claim of error is without
merit. Moreover, given the district court’s statement that it would impose the same
sentence even if it had authority to treat the amended guideline range as advisory,
Murphy cannot show that the error he posits affected his substantial rights.

      The judgment of the district court is affirmed.
                      _____________________________




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