United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1095

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United States of America, *

*

 Plaintiff – Appellee, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Eddie Louis Denton, *

* [UNPUBLISHED]

Defendant – Appellant. * 

*

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Submitted: June 8, 2009

Filed: June 12, 2009

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Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.

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PER CURIAM.

In 2003 Eddie Denton was sentenced to life in prison based on his conviction

for conspiracy to distribute cocaine base, cocaine, and marijuana, and conspiracy to

distribute cocaine base within 1000 feet of a protected location. After the United

States Sentencing Commission made retroactive its amendment to the sentencing

guideline for crack cocaine, the United States District Court for the Northern District

of Iowa notified Denton that it intended to reduce his sentence to 324 months pursuant
1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

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to 18 U.S.C. § 3582(c)(2). The district court1

 stated that United States v. Booker, 543

U.S. 220 (2005), did not apply to proceedings under § 3582(c)(2), so a full

resentencing would not be conducted. Denton appeals, and we affirm.

Denton was a retired police officer convicted by a jury for his participation in

a drug distribution ring in Waterloo, Iowa. The district court found him responsible

for at least 1.5 kilograms of crack cocaine, resulting in a base offense level of 39,

which was subsequently enhanced for possession of a firearm and for testifying falsely

at trial. U.S.S.G. §§ 2D1.1, 3B1.2(a). The guideline range was life imprisonment,

which the district court imposed along with a ten year term of supervised release.

In 2007 the United States Sentencing Commission revised the guideline for

crack offenders to reduce the base offense level applicable for the quantity of cocaine

base by two levels. U.S.S.G. app. C, amend. 706 (2008). The Sentencing Commission

made that amendment retroactive, which enables defendants who were sentenced

under the previous cocaine base guideline to seek a modification of their sentences

under 18 U.S.C. § 3582(c)(2).

In November 2007, the district court issued a preliminary order regarding

Denton's modified sentence. Denton's amended guideline range was 342–405 months,

and the district court stated its intent to impose a modified sentence of 342 months,

which is the "maximum reduction permitted under 18 U.S.C. § 3582(c)(2) and

U.S.S.G. § 1B1.10." Denton did not object to the preliminary order within the twenty

days provided, and again failed to do so after the court granted his motion for

enlargement of time to respond. In a second motion for an enlargement of time,

Denton argued that the policy statement at U.S.S.G. § 1B1.10, applicable in

proceedings under § 3582(c), was rendered advisory by Booker, and therefore did not
2

Denton filed a pro se motion to withdraw the appellate brief submitted by his

counsel, and we granted him permission to file a supplemental brief. His arguments

in that brief are similar to his counsel's and otherwise without merit. He also contends

that he was denied an opportunity to consult with counsel to prepare objections to the

preliminary resentencing order. Because Denton received the greatest possible

reduction in his sentence permitted by U.S.S.G. § 1B1.10, he was not harmed by the

lack of counsel during the proceedings below. Cf. United States v. Harris, No. 09-

1155, at 2–3 (8th Cir. June 12, 2009) (no right to counsel during § 3582(c)

proceedings).

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prevent the district court from departing below the revised guideline range. The

district court denied the motion and entered a final order imposing the modified

sentence of 324 months.

Denton contends that the district court plainly erred by concluding that Booker

does not apply to sentence modification proceedings under § 3582(c)(2).2 Denton's

argument is foreclosed by our decision in United States v. Starks, 551 F.3d 839 (8th

Cir. 2009), cert. denied, 2009 WL 1043901(U.S. June 1, 2009) (No. 08-9839), that 18

U.S.C. § 3582(c) and U.S.S.G. § 1B1.10 remain binding despite Booker. The district

court did not err in refusing to conduct a full resentencing when it modified Denton's

sentence.

The amended judgment is affirmed.

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