                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              MAR 16, 2009
                               No. 08-14948                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 05-00461-CR-T-23-EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOE NATHAN GRAHAM,

                                                           Defendant-Appellant.


                         ________________________

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

                              (March 16, 2009)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Joe Nathan Graham is serving a federal prison sentence of 108 months for a
crack cocaine offense. (The Guidelines sentence range prescribed a sentence of

108 to 135 months’ imprisonment.) The district court, acting sua sponte, reduced

his sentence to 87 months pursuant to 18 U.S.C. § 3582(c)(2), based on

Amendment 706 of the Sentencing Guidelines. The court found that, under

Amendment 706, Graham was entitled to a two-level reduction of his offense level.

That reduction, coupled with his category II criminal history, yielded a sentence

range of 87 to 108 months’ imprisonment.

      Graham now appeals his reduced sentence on the ground that the district

court should have exercised its discretion under United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and reduced his sentence to a term of

60 months under Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558, 169

L.Ed.2d 481 (2007), and Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 169

L.Ed.2d 445 (2007), because a sentence of 60 months would be “sufficient to

fulfill the purposes of sentencing under 18 U.S.C. § 3553(a).”

      In his brief to us, Graham argues that the district court misconstrued United

States v. Moreno, 421 F.3d 1217 (11th Cir. 2005), in finding that Booker is

inapplicable to § 3582 proceedings. He asserts that, under Booker, the Sentencing

Guidelines and policy statements are advisory in § 3582 proceedings. Thus, the

district court had authority to sentence him below the sentence range.



                                          2
      This court’s recent decision in United States v. Melvin, ___ F.3d ____, 2009

WL 236053 (C.A. 11 (Fla.)), forecloses Graham’s argument. The district court’s

decision is, accordingly,

      AFFIRMED.




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