                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAR 2, 2009
                               No. 08-15089                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                 D. C. Docket No. 99-00026-CR-ORL-19DAB

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MICHAEL TARNELL DAVIS,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (March 2, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Michael Tarnell Davis, a federal prisoner convicted of a crack-cocaine
offense, appeals the district court’s ruling on his motion to reduce his sentence

under 18 U.S.C. § 3582(c)(2). After review, we affirm.

      Under § 3582, a district court has discretion to reduce the term of

imprisonment of an already incarcerated defendant if that defendant “has been

sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.

§ 944(o).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May

1, 2008). Section 3582(c)(2) requires a sentence reduction to be consistent with

the Sentencing Guidelines’ policy statements, which include U.S.S.G. § 1B1.10.

See 18 U.S.C. § 3582(c)(2). Section 1B1.10(b)(2) and its commentary preclude a

district court from reducing a defendant’s sentence below the new, amended

guidelines range if the defendant’s original sentence fell within the then-applicable

guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A)-(B) & cmt. n.3.

      Davis’s § 3582(c)(2) motion is based on Amendment 706 to the Sentencing

Guidelines, which lowered most of the base offense levels under U.S.S.G. § 2D1.1

for crack-cocaine offenses. Davis was convicted of possession with intent to

distribute crack cocaine and two firearms offenses. Davis’s original guidelines

range for his crack cocaine offense was 210 to 262 months’ imprisonment, and the

district court’s original 210-month sentence on the crack offense was at the low



                                           2
end of that range.1

       After Amendment 706, Davis’s offense level was reduced by two levels,

yielding a new guidelines range of 168 to 210 months’ imprisonment for the crack

cocaine offense. The district court granted Davis’s § 3582(c)(2) motion and

reduced Davis’s sentence for the crack offense to 168 months’ imprisonment, at

the low end of that new, amended guidelines range.2 The district court denied

Davis’s § 3582(c)(2) request to sentence him below the new, amended guidelines

range pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) and

Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558 (2007).

       On appeal, Davis argues that the district court erred when it failed to apply

Booker and instead treated U.S.S.G. § 1B1.10(b)(2) and the new, amended

guidelines range as mandatory rather than advisory.3 However, as explained

above, § 3582(c)(2) requires a sentence reduction to be consistent with the

Sentencing Guidelines’ policy statements and in turn § 1B1.10(b)(2) and its



       1
        The district court imposed a total 270-month sentence due to a 60-month consecutive
sentence for one of the firearms offenses.
       2
        Thus, with the 60-month consecutive sentence for the firearms offense, Davis’s new total
sentence was 228 months’ imprisonment.
       3
        We review de novo the district court's legal conclusions regarding the scope of its authority
to reduce a sentence under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.
2008), cert. denied, 77 U.S.L.W. 3398 (U.S. Jan. 12, 2009) (No. 08-7610). We also review de novo
questions of statutory interpretation. Id.

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commentary preclude the reduction in Davis’s case. This Court recently held “that

Booker and Kimbrough do not apply to § 3582(c)(2) proceedings” and that

“Booker and Kimbrough do not prohibit the limitations on a judge’s discretion in

reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement

by the Sentencing Commission.” United States v. Melvin, No. 08-13497, ___ F.3d

___, 2009 WL 236053, at **1, 3 (11th Cir. Feb. 3, 2009). Because Davis’s

original sentence was within the then-applicable guidelines range, U.S.S.G. §

1B1.10(b)(2) and its commentary precluded the district court from reducing

Davis’s sentence below the new, amended guidelines range.

      AFFIRMED.




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