                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-10955                ELEVENTH CIRCUIT
                           Non-Argument Calendar               JULY 17, 2009
                         ________________________           THOMAS K. KAHN
                                                                 CLERK
                  D. C. Docket No. 97-00028-CR-OC-10-GRJ

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

KENNETH DION MCCHRISTON,

                                                            Defendant-Appellant.
                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________
                                (July 17, 2009)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Kenneth Dion McChriston appeals from the district court’s denial of his

motion for a reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 706 to the Sentencing Guidelines. McChriston argues that he was

eligible for a sentence reduction because his sentence was not based upon the
statutorily enhanced minimum sentence in 21 U.S.C. § 841(b)(1)(A)(iii), and that

the district court should have applied Apprendi v. New Jersey, 530 U.S. 466

(2000), in his § 3582(c)(2) proceeding to redetermine the amount of drugs for

which he was responsible. After thorough review, we affirm.

      “We review de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008).

      A district court may modify a term of imprisonment in the case of a

defendant who was sentenced to a term of imprisonment based on a sentencing

range that subsequently has been lowered by the Sentencing Commission.          18

U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with applicable

policy statements issued by the Sentencing Commission.”       Id.   The applicable

policy statements, found in U.S.S.G. § 1B1.10, provide that a sentence reduction is

not authorized under § 3582(c)(2) if “[a]n amendment listed in subsection (c) does

not have the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B). Where the statutory minimum sentence exceeds the

top end of the applicable guideline range, the statutory minimum becomes the

guideline. U.S.S.G. § 5G1.1(b). The Sentencing Commission’s application notes

indicate that the operation of “a statutory mandatory minimum term of



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imprisonment” would prevent an amendment from “hav[ing] the effect of lowering

the defendant’s applicable guideline range.” See U.S.S.G. § 1B1.10 cmt. n.1(A).

       McChriston’s arguments are foreclosed by precedent and the record.

McChriston’s sentence was based upon an application of the statutory minimum

sentence in 21 U.S.C. § 841(b)(1)(A)(iii), and, thus, he was ineligible for a

sentence reduction because his applicable guideline range would not be reduced by

the application of Amendment 706. See United States v. Williams, 549 F.3d 1337,

1341-42 (11th Cir. 2008) (holding that a defendant sentenced to statutory

minimum was not eligible for a sentence reduction, even where the court at the

original sentencing had granted the government’s motion under U.S.S.G. § 5K1.1

to sentence below the mandatory minimum). In addition, the district court did not

have authority to apply Apprendi to redetermine the drug amount because a

§ 3582(c)(2) proceeding is not a full resentencing. See United States v. Moreno,

421 F.3d 1217, 1220 (11th Cir. 2005); U.S.S.G. § 1B1.10(a)(3) (noting that

proceedings “do not constitute a full resentencing of the defendant”).1

       AFFIRMED.



       1
         Moreover, to the extent McChriston suggests otherwise, we have held that neither
United States v. Booker, 543 U.S. 220 (2005), nor Kimbrough v. United States, 128 S. Ct. 558
(2007), “prohibit[s] 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, 556 F.3d 1190, 1192 (11th Cir.), cert. denied, (U.S. May 18, 2009) (No. 08-8664).

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