                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-13864                ELEVENTH CIRCUIT
                                                                APRIL 15, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                    D. C. Docket No. 97-00367-CR-T-24TBM

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

JAY EL WILBURN,
a.k.a. Jayel Wilburn,

                                                            Defendant-Appellant.


                          ________________________

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

                                 (April 15, 2009)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
       Jay El Wilburn, a federal prisoner convicted of two counts of carjacking, in

violation of 18 U.S.C. § 2119 (Counts 1 and 3), and one count of use of a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 4), appeals

the district court’s denial of his 18 U.S.C. § 3582 motion for reduction of sentence.

After review, we affirm.1

       A district court may modify a term of imprisonment if the defendant was

sentenced 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.

           Wilburn’s § 3582(c)(2) motion is based on Amendment 599, which “was

promulgated in order to prevent ‘double counting’ for firearms use in any one

criminal event.” United States v. Pringle, 350 F.3d 1172, 1180 (11th Cir. 2003).

Pursuant to Amendment 599, a defendant who was convicted of a § 924(c) firearm

offense and an underlying offense, such as carjacking, shall not receive a

guidelines enhancement for discharge of the firearm when determining the

sentence for the underlying offense. U.S.S.G. app. C, amend. 599 (2003) (codified

as amended at U.S.S.G. § 2K2.4 cmt. n.4); see also Pringle, 350 F.3d at 1179.


       1
        “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).

                                                2
Amendment 599 may be applied retroactively upon a § 3582(c)(2) motion.

U.S.S.G. § 1B1.10(c).

      Here, the district court did not err in denying Wilburn’s § 3582(c)(2) motion

because Amendment 599 had no effect on Wilburn’s sentencing range. At

sentencing, Wilburn received a seven-level enhancement, pursuant to U.S.S.G. §

2B3.1(b)(2)(A), for discharging a firearm during his Count 1 carjacking offense.

He did not receive a similar enhancement for his Count 3 carjacking offense, which

was the underlying offense for his Count 4 § 924(c) firearm offense. Thus, there

was no “double-counting” prohibited by Amendment 599, and Wilburn’s

sentencing range remains unchanged. See Pringle, 350 F.3d at 1180 (“Amendment

599 allows for weapons enhancements for all robberies except for the one robbery

that served as the basis for Pringle’s § 924(c) conviction.”). Because Wilburn was

not eligible for a § 3582(c)(2) sentence reduction, the district court had no need to

consider the 18 U.S.C. § 3553(a) factors or the policy statements in the Sentencing

Guidelines. See United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998)

(explaining that the district court considers the § 3553(a) factors only after the

district court has determined that the defendant is eligible for a reduction because

an amendment has lowered the guidelines range).




                                           3
         Finally, Wilburn’s argument regarding the applicability of United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), is foreclosed by our precedent. See

United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009) (concluding that

Booker does 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”), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-

8664).

         AFFIRMED.




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