United States v. Sammy Welch , 333 F. App'x 155 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3532
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Sammy Welch, *
* [UNPUBLISHED]
Appellee. *
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Submitted: October 19, 2009
Filed: October 26, 2009
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Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
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PER CURIAM.
The government appeals the district court's order granting Sammy Welch's
motion for a reduction in his sentence based on a guidelines amendment (Amendment
706) which reduced the advisory base offense level by two levels for certain cocaine
base (crack) offenses. The government argues Welch was not eligible for a reduction
because he was subject to a statutory mandatory minimum term of 120 months when
originally sentenced, despite the fact that he received a lower sentence of 100 months
due to the government's motion to depart downward from the mandatory minimum for
substantial assistance under 18 U.S.C. § 3553(e).
The government's argument is well-taken. See United States v. Byers, 561 F.3d
825, 831 (8th Cir. 2009) (concluding defendants who were subject to statutory
mandatory minimum terms when originally sentenced were not eligible for sentence
reductions based on Amendment 706 even though their original sentences were below
the mandatory minimum because of a § 3553(e) substantial assistance departure
motion); see also United States v. Baylor, 556 F.3d 672, 673 (8th Cir. 2009)
(concluding the same and noting "[t]he fact that the government originally moved to
depart downwards from the mandatory minimum did not impact [the defendant's]
Guidelines range and thus is irrelevant.").
We therefore reverse and remand to the district court with instructions to
reinstate Welch's original sentence of 100 months imprisonment.
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