1 The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1662

___________ United States of America, * * Appellee. * * Appeal from the United States v. * District Court for the * Western District of Missouri. Carlos Garcia, * * Appellant. *

___________ Submitted: January 11, 2010 Filed: July 1, 2010

___________ Before SMITH, COLLOTON, Circuit Judges, and KORNMANN, 1 District Judge.

___________ KORNMANN, District Judge. I. Introduction. Carlos Garcia pleaded guilty to distri bution of cocaine and was sentenced on June 3, 2005. The presentence investiga tion report attributed a drug quantity of 100 to 150 grams of cocaine to Garcia, resulting ina base offense level of Level 32. His total offense level was leve l 31 and, with a criminal history category of V, his2 The Honorable Ortrie D. Smith, United St ates District Judge for the Western District of Missouri. -2- guideline range was 168 - 210 months. He wa s sentenced to 168 months custody, the lowest end of the guideline range. In November 2007, the Sentencing Co mmission amended Guidelines § 2D1.1 to reduce the base offense levels for offe nses involving crack cocaine (cocaine base). See Amendment 706. Effective March 3, 2008, the Sentencing Commission determined that Amendment 706 may be app lied retroactively to afford sentencing relief under 18 U.S.C. § 3582(c)(2). See Amendment 713, amending the list of covered amendments set forth in § 1B1.10(c). The new base offense level for 100 to 150 grams of cocaine became level 30. Garcia moved for a reduction of sentence pursuant to 18 U.S.C. §3582(c)(2). The district court 2granted the motion, reducing Garcia’s sentence to 140 months, the lowest end of the reduced guideline range of 140 to 175 months. Garcia asked the District Court to apply United States v. Booker , 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005) , treat the Guidelines as advisory only, and impose a sentence below the guidelin e range. The district court, relying upon the Eighth Circuit’s decision in United States v. Starks , 551 F.3d 839 (8th Cir. 2009), held that it lacked authority to sentence below the amended guideline range. II. Discussion. Garcia contends on appeal that the district court erred in applying the sentencing guidelines as mandatory upon resentencing. Garcia’s argument is foreclosed by the United States Supreme C ourt’s decision in Dillon v. United States ,-3- ___ U.S. ___, No. 09-6338, 2010 WL 2400109, at *6 (June 17, 2010), holding that a court acting under section 3582(c)(2) to reduce a crack cocaine sentence is foreclosed from reducing the sentence to a te rm that is less than the minimum of the amended guideline range unless the orig inal sentence was below the minimum guideline range. In other words, secti on 3582(c)(2) permits only a sentence reduction, not a resentencing. Dillon confirms that Starks was “good law.” As in the Dillon case, Garcia was sentenced prior to Booker when the district court’s authority to sentence a defendant below the guidelines range was limited to departures set forth in USSGChapter 5K. Following Booker , district courts imposing an original sentence are au thorized to vary from the guidelines range based upon the factors set forth in § 3553(a). United States v. Shannon , 414 F.3d 921, 923 (8th Cir. 2005). The Supreme Court has declined in Dillon to extend Booker ’s reach to resentencings authorized by § 3582(c)(2). III. Conclusion. Accordingly, we affirm the judgment of the district court.

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