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

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No. 09-1325

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Lewis C. Curry, *

*

Appellant. *

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Submitted: September 24, 2009

 Filed: November 9, 2009

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

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WOLLMAN, Circuit Judge.

Lewis Curry appeals the district court’s1

 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 possession with intent to distribute five or

more grams of cocaine base, commonly know as “crack.” The Presentence
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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 Guidelines, 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 amendment has lowered the guideline range under

which he was originally sentenced. See United States v. Gamble, 572 F.3d 472, 474

(8th Cir. 2009) (discussing Amendment 706).

 

Both parties agreed that Curry qualified for a possible sentence reduction and

that application of the amendment would have resulted in a guideline range of 77 to

96 months. The government argued, however, that the court should deny Curry’s

motion or, in the alternative, impose a sentence of no less than 83 months. In a fourpage order that included substantial discussion of the procedural history and

applicable law, the court denied Curry’s motion. The court acknowledged that Curry

qualified for a sentence reduction, but concluded that a reduction was inappropriate

because of Curry’s extensive criminal history and the fact that his 100-month sentence
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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 the 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 sentence it would have imposed if the amended

guideline had been in effect when he was originally sentenced. The Wyatt

formulation, however, has been 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).
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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 the term of imprisonment that it would have

imposed had the amendment(s) to the guidelines . . . 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 was sentenced.” There is no dispute that the

amended guideline range was accurately determined in this case.

 

The district court recognized that Curry was eligible for a sentence reduction,

and the parties agreed that the amended sentencing range would have been between

77 and 96 months. The district court made clear why it believed 100 months was and

continued to be an appropriate sentence, even in light of the crack cocaine

amendment. Specifically, the court emphasized Curry’s extensive 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 effect when Curry was originally sentenced.

 

Curry next argues that the district court abused its discretion in considering the

government’s forbearance of the § 851 notice 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 might 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 government to avoid the mandatory minimum
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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— demonstrates that the court took this factor into

consideration.

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sentence. We disagree. In Wyatt, the government’s ability to obtain a lengthier

sentence was uncertain. The record did not clearly establish what additional charges

could have been brought and what type of sentence the defendant would have

received. 

In this case, it is undisputed that the government could have obtained a longer

prison term when Curry was originally sentenced. As noted above, both parties

acknowledged at Curry’s sentencing that the government had intentionally refrained

from filing notice of Curry’s prior convictions. Curry does not contest the existence

of those convictions or that the government 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 might otherwise have occurred. 

The judgment is affirmed.2

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