United States v. James Borders

Filing 920100623


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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1542 ___________ United States of America, * * Plaintiff - Appellee, * Appeal from the United States * District Court for the Eastern v. * District of Missouri. * James Borders, * [UNPUBLISHED] * Defendant - Appellant. * ___________ Submitted: June 14, 2010 Filed: June 23, 2010 ___________ Before MURPHY, BEAM, and BENTON, Circuit Judges. ___________ PER CURIAM. In 2000, James E. Borders was found guilty of conspiracy to distribute more than 50 grams of crack cocaine. The district court determined a Guidelines sentencing range of life imprisonment and imposed a life sentence. After the Sentencing Commission reduced by two levels the offense level applicable to crack cocaine offenses in Amendments 706 and 711of the Guidelines, Borders moved for modification of his sentence under 18 U.S.C. 3582(c)(2). The district court1 granted The Honorable Rodney W. Sippel, United States District Court for the Eastern District of Missouri. 1 a two-level reduction, reducing the advisory range to 360 months to life imprisonment. The district court re-sentenced Borders to 360 months in prison. Borders appeals, arguing that the district court erred when it considered the Guidelines mandatory in applying 3582(c)(2) and the policy statements in U.S.S.G. 1B1.10. This argument is foreclosed by this court's decision in United States v. Starks, 551 F.3d 839 (8th Cir. 2009), cited by United States v. Dillon, 572 F.3d 146, 150 (3d Cir. 2009), aff'd, No. 09-6338, slip op. at 14 (S. Ct. June 17, 2010). As the Supreme Court held, "proceedings under 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt." Id. at 11. Therefore, the district court correctly applied 18 U.S.C. 3582(c) and U.S.S.G. 1B1.10(b)(2)(A). The judgment of the district court is affirmed. ______________________________ -2-

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