                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 08-2993
                                ________________


United States of America,                 *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of Nebraska.
Glenn E. Wagner,                          *
                                          *       [PUBLISHED]
             Appellant.                   *

                                _______________

                            Submitted: January 13, 2009
                                Filed: May 5, 2009
                               ________________

Before BYE, COLLOTON and GRUENDER, Circuit Judges.
                         ________________

PER CURIAM.

       In February 2005, Glenn Wagner pled guilty to conspiracy to distribute fifty
grams or more of a mixture or substance containing cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and 846. At sentencing, the district court1 found that Wagner was
responsible for at least 1.79 kilograms of cocaine base. Based on this finding, the
court calculated a base offense level of 38 under the advisory sentencing guidelines.


      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
After applying a 3-level reduction for acceptance of responsibility, the court
determined that Wagner’s total offense level was 35. Since Wagner’s criminal history
placed him in category II, his advisory guideline range was 188 to 235 months. The
court sentenced Wagner to 188 months’ imprisonment.

       In March 2008, Wagner moved for a reduction in his sentence under 18 U.S.C.
§ 3582(c)(2) and Amendment 706 to the sentencing guidelines. Section 3582(c)(2)
authorizes district courts to reduce a defendant’s sentence if the defendant’s original
term of imprisonment was based on a guideline range that was subsequently lowered
by an amendment that the Sentencing Commission has made retroactive. Amendment
706, which was made retroactive by Amendment 713, triggered § 3582(c)(2) by
reducing the base offense level that applies to the amount of cocaine base for which
Wagner was held responsible from 38 to 36. Thus, if Amendment 706 had been in
effect at the time Wagner was sentenced, Wagner’s total offense level would have
been reduced from 35 to 33 and his advisory guideline range would have been 151 to
188 months. Wagner sought a “full evidentiary hearing” in support of a reduction in
his sentence to the statutory minimum of 120 months.

       The requested hearing was held in August 2008. Wagner testified about the
education he has received in prison and the commendable work he has done to assist
his fellow prisoners. Wagner’s counsel argued that the district court had “full
discretion” to impose a new sentence at or above the statutory minimum based on its
consideration of the sentencing factors set out in 18 U.S.C. § 3553(a). The
Government disputed Wagner’s assertion that § 3582(c)(2) authorized a “complete
resentencing” and asked the district court to impose a sentence of 151 months, the
bottom of the amended guideline range. The district court agreed with Wagner that
it “[had] the discretion to sentence outside the guideline range” based on its
consideration of the relevant sentencing factors. Nevertheless, the court decided that
a downward variance was not warranted and reduced Wagner’s sentence to 151
months’ imprisonment. Wagner appeals, arguing that the district court had full

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discretion to reduce his sentence below the amended guideline range, that the court
improperly treated the amended guideline range as the “default sentence,” and that his
sentence at the bottom of the amended guideline range is greater than necessary to
achieve the “federal sentencing goals” enumerated in § 3553(a).

       Wagner’s arguments are foreclosed by our decision in United States v. Starks,
551 F.3d 839 (8th Cir. 2009), petition for cert. filed, --- U.S.L.W. --- (U.S. Apr. 13,
2009) (No. 08-9839). Cf. United States v. Harris, 556 F.3d 887, 888 (8th Cir. 2009)
(per curiam) (holding that the defendant’s argument that the district court had
authority to reduce his sentence below the amended guideline range was foreclosed
by Starks). In Starks, we noted that § 3582(c)(2) expressly limits the authority of
district courts to reduce a defendant’s sentence “by requiring that a reduction . . . must
be ‘consistent with applicable policy statements issued by the Sentencing
Commission.’” Starks, 551 F.3d at 841 (quoting § 3582(c)(2)). We further noted that
“[t]he policy statement applicable to sentence reductions based on retroactive
amendments by the Sentencing Commission is USSG § 1B1.10.” Id. Section
1B1.10(b)(2)(A) provides that if a defendant’s original term of imprisonment was
within the applicable guideline range, then a court may not reduce the defendant’s
sentence under § 3582(c)(2) to “a term that is less than the minimum of the amended
guideline range.”2 The defendant in Starks asserted that courts are no longer
constrained to follow § 1B1.10 because, after United States v. Booker, 543 U.S. 220
(2005), “that policy statement, like all of the guidelines, is merely advisory.” Starks,

      2
       The guidelines provide a limited exception to this rule in cases where the
defendant’s original term of imprisonment was less than the applicable guideline
range. See U.S.S.G. § 1B1.10(b)(2)(B) (“If the original term of imprisonment
imposed was less than the term of imprisonment provided by the guideline range
applicable to the defendant at the time of sentencing, a reduction comparably less than
the amended guideline range . . . may be appropriate. However, if the original term
of imprisonment constituted a non-guideline sentence determined pursuant to 18
U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further
reduction generally would not be appropriate.”).

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551 F.3d at 841. We disagreed, holding that Booker did not invalidate the limiting
provision of § 3582(c)(2), id. at 842, and that the restriction on the extent of
authorized sentence reductions established in § 1B1.10(b)(2)(A) is thus “constitutional
and enforceable,” id. at 843. See Harris, 556 F.3d at 888.

       While Starks involved a defendant who was initially sentenced under the
mandatory sentencing guidelines, we see no reason why our holding is not equally
applicable to cases, like this one, in which the defendant was initially sentenced under
the advisory sentencing guidelines. With respect to both categories of defendants, the
statutory authority to reduce a defendant’s sentence is constrained by the limiting
provision of § 3582(c)(2) and the restriction on the extent of sentence reductions
established in § 1B1.10(b)(2)(A). See United States v. Cunningham, 554 F.3d 703,
708 (7th Cir. 2009) (holding that “section 3582(c)(2) proceedings . . . may not result
in a sentence lower than the [defendant’s] amended guideline range (unless the
defendant’s original sentence was lower than the guideline range)” and therefore
affirming the reduced sentences of two defendants who were initially sentenced under
the advisory sentencing guidelines), petition for cert. filed, 77 U.S.L.W. 3544 (U.S.
Mar. 16, 2009) (No. 08-1149).

       Wagner’s original sentence of 188 months’ imprisonment was within the
advisory guideline range that applied at the time he was sentenced. As a result, §
1B1.10(b)(2)(A) precluded the district court from reducing Wagner’s sentence under
§ 3582(c)(2) to a term that was less than 151 months, the bottom of the amended
guideline range. Although the district court mistakenly determined that it had
discretionary authority to resentence Wagner to a term of imprisonment below the
amended guideline range based on its consideration of the sentencing factors set out
in § 3553(a), the court’s error turned out to be harmless.

     For the foregoing reasons, we affirm Wagner’s reduced sentence of 151
months’ imprisonment.

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BYE, Circuit Judge, concurring.

      As I noted in my concurrence in the judgment in United States v. Harris, 556
F.3d 887, 889 (8th Cir. 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. As such, I
believe the district court did not err by believing it had the authority to reduce
Wagner's sentence below the amended Guidelines range.

       I nonetheless concur because Wagner's sentence, which was within the amended
Guidelines range, was not an abuse of discretion. A sentence within the advisory
Guidelines range is presumptively reasonable on appeal. Rita v. United States, 127
S.Ct. 2456, 2462 (2007) (holding a court of appeals may apply presumption of
reasonableness to sentence that reflects proper application of Guidelines). Wagner
seeks to rebut this presumption of reasonableness primarily by arguing the two-level
sentencing reduction in crack offenses under Amendment 706 fails to fully address the
crack/powder cocaine sentencing disparity. Although arguably true, this Court has
held "a district court does not abuse its discretion when it fails to consider the
crack/powder sentencing disparity." United States v. Saddler, 538 F.3d 879, 891 (8th
Cir. 2008); see also United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008)
("We do not believe, though, that [Kimbrough v. United States, 128 S. Ct. 558
(2008),] means that a district court now acts unreasonably, abuses its discretion, or
otherwise commits error if it does not consider the crack/powder sentencing
disparity."); United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 2008) ("Although
Kimbrough empowers a district court to consider the disparity between guideline
sentences for powder cocaine and crack, it does not require it to do so."). In addition,
the record demonstrates the district court considered the § 3553(a) factors and
provided sufficient reasons to demonstrate it "has considered the parties' arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority." See

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Rita, 127 S. Ct. at 2468. The district court therefore did not abuse its discretion by
resentencing Wagner to 151 months imprisonment.
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