1 The Honorable Catherine D. Perry, now Chief Judge, United States District Court for the Eastern District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1325

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Lewis C. Curry, *
* Appellant. *

___________ Submitted: September 24, 2009 Filed: November 9, 2009

___________ Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Lewis Curry appeals the district court’s 1 denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We affirm.

I.

In 2005, Curry was charged with possessi on with intent to distribute five or more grams of cocaine base, commonl y know as “crack.” The Presentence-2- Investigation Report calculated that the guideline range for Curry’s offense was between 92 and 115 months. Because Curry had several prior felony convictions involving controlled substances, however, the government had the option of filing a notice of those offenses under 21 U.S.C. § 851, which would have subjected Curry to a mandatory 120-month minimum sentence. In exchange for Curry’s guilty plea, the government agreed not to file the § 851 notice and to recommend a 100-month
sentence.
At the sentencing hearing, both Curry and the government referenced the government’s forbearance of the § 851 notice and encouraged the district court to accept the parties’ joint recommendation of 100 months. Concluding that 100 months was a reasonable sentence under the circumstances, the district court accepted the recommendation and sentenced Curry accordingly.

In April 2008, Curry filed a motion to reduce his sentence based on Amendment 706 to the United States Sentencing Guidelin es, which reduced the base offense level for various quantities of crack cocaine. Under 18 U.S.C. § 3582( c)(2), a defendant may be eligible for a sentence reduction if he is currently serving a sentence for a crack cocaine offense and the amendmen t has lowered the guideline range under which he was origina lly sentenced. See United States v. Gamble , 572 F.3d 472, 474 (8th Cir. 2009) (discussing Amendment 706).

Both parties agreed that Curry qualif ied for a possible sentence reduction and that application of the amendment would have resulted in a gui deline range of 77 to 96 months. The government argued, however, that the court should deny Curry’s motion or, in the alternative, impose a sent ence of no less than 83 months. In a fourpage order that included substantial di scussion of the procedural history and applicable law, the court denied Curry’s motion. The court acknowledged that Curry qualified for a sentence reduction, but conc luded that a reduction was inappropriate because of Curry’s extensive criminal hist ory and the fact that his 100-month sentence-3- was negotiated with the government. The court was particularly influenced by Curry’s criminal history, observing that most of his eleven prior convictions were for serious felonies, including weapons offenses , resisting arrest, and assault of a law enforcement officer.

II.

We review a district court’s denial of a sentence reduction motion for abuse of discretion. United States v. Whiting , 522 F.3d 845, 852-53 (8th Cir. 2008). In United States v. Wyatt , we stated that a district court considering a motion to modify a sentence should make two determinations:

First, by substituting only the amended sentencing range for the originally determined sentencing range, and leaving all other previous factual decisions concerning particularized sentencing factors . . . intact, the district court must determine what sentence it would have imposed had the new sentencing range been th e range at the time of the original sentencing. Second, . . . the district court must consider [the first] determination together with the general sentencing considerations contained in section 3553(a) and, in the exercise of its thus informed discretion, decide whether or not to modify the original sentence previously imposed.
115 F.3d 606, 609 (8th Cir. 1997).

Citing the language in Wyatt , Curry contends that the district court abused its discretion by failing to state what senten ce it would have imposed if the amended guideline had been in effect when he was originally sentenced. The Wyatt formulation, however, has b een abrogated by changes to the Guidelines. District courts are no longer required to consider what sentence they would have originally imposed had the amended guideline been in effect. See United States v. Chaney , 581 F.3d 1123, 1126-27 (9th Cir. 2009).-4- The two-step process discussed in Wyatt was derived from U.S.S.G. § 1B1.10(b). Wyatt , 115 F.3d at 608-09. When we decided Wyatt , § 1B1.10(b) provided that “the court should consider th e term of imprisonment that it would have imposed had the amendment(s) to the guidelin es . . . been in effect at the time the defendant was sentenced . . . .” In 2008, the Sentencing Commission eliminated the language requiring that a court consider the sentence it would have imposed. Section 1B1.10(b) now simply states that “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) . . . had been in effect at the time the defendant wa s sentenced.” There is no dispute that the amended guideline range was accurate ly determined in this case.

The district court recognized that Curry was eligible for a sentence reduction, and the parties agreed that the amended sentencing rangewould have been between 77 and 96 months. The district court made clear why it believed 100 months was and continued to be an appropriate senten ce, even in light of the crack cocaine amendment. Specifically, th e court emphasized Curry’s ex tensive criminal history and noted that the 100-month sentence was the product of a negotiation in which the government agreed not to seek a 120-month mandatory minimum. Accordingly, the court did not abuse its discretion in failing to explicitly state what sentence it would have imposed had the amendment been in e ffect when Curry was originally sentenced.

Curry next argues that the district court abused its discretion in considering the government’s forbearance of the § 851 no tice as a ground for denying his motion. Curry again cites Wyatt , in which we held that a district court should not speculate about what other charges the government mi ght have pursued if the defendant had not pled guilty. 115 F.3d at 609. We also noted, however, that the district court was “free to consider the complete nature of the defendant’s crime pursuant to section 3553(a).” Id. Curry maintains that the district court engaged in prohibited speculation when it referred to his negotiation with the govern ment to avoid the mandatory minimum2 We likewise reject Curry’s argument that the district court failed to consider whether a sentence reduction would have posed a danger to any person or the community. See U.S.S.G. § 1B1.10 cmt. n.1(B)(ii). The court’s discussion of Curry’s prior violent felonies—which, as previously discussed, included weapons offenses and assault on a law enforcement officer— demonstr ates that the court took this factor into consideration.
-5- sentence. We disagree. In Wyatt , the government’s ability to obtain a lengthier sentence was uncertain. The r ecord did not clearly estab lish what additional charges could have been brought and what type of sentence the de fendant would have received.

In this case, it is undisputed that th e government could have obtained a longer prison term when Curry was originally sentenced. As noted above, both parties acknowledged at Curry’s sentencing that th e government had intentionally refrained from filing notice of Curry’s prior convicti ons. Curry does not contest the existence of those convictions or that the governme nt had the ability to invoke the 120-month mandatory minimum. Thus, the district court’s observation that Curry’s 100-month sentence was the product of negotiation was an accurate reflection of the record and not speculation regarding what mi ght otherwise have occurred.

The judgment is affirmed. 2

______________________________