                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APRIL 20, 2009
                             No. 08-11537                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 01-00002-CR-CAR-1-HL

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RICK WILLINGHAM,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 20, 2009)

Before BLACK, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Rick Willingham, a federal prisoner convicted of crack-cocaine offenses, as

well as a firearm offense, was granted 18 U.S.C. § 3582(c)(2) relief, reducing his

sentence pursuant to Sentencing Guidelines Amendment 706, which lowered the

base offense levels applicable to crack cocaine offenses. He appeals, nevertheless,

arguing (1) his presence was required at a hearing and (2) Booker1 and Kimbrough 2

allow a reduction beyond the two-level reduction he received. After review, we

affirm Willingham’s sentence.

      Legal questions are reviewed de novo. United States v. Pringle, 350 F.3d

1172, 1178 n.8 (11th Cir. 2003).

                                                 I.

      On appeal, Willingham argues he had the right to be heard to present

mitigating arguments at his resentencing pursuant to 18 U.S.C. § 3582(c). The

Federal Rules of Criminal Procedure provide a defendant need not be present for a

proceeding “involv[ing] the correction or reduction of sentence under [] 18 U.S.C.

§ 3582(c).” Fed. R. Crim. P. 43(b)(4). Willingham’s argument that he was entitled

to an oral hearing to present mitigating arguments prior to his § 3582(c)

resentencing fails. See Fed. R. Crim. P. 43(b)(4); see also United States v. Taylor,


      1
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
      2
          Kimbrough v. United States, 552 U.S.        , 128 S. Ct. 558 (2007).


                                                 2
11 F.3d 149, 152 (11th Cir. 1994) (“there is a distinction between modifications of

sentences and proceedings that impose a new sentence after vacation of the original

sentence”; “[i]n the former instance, the defendant’s presence is not required”);

Anderson v. United States, 241 F. App’x 625, 629 (11th Cir. 2007) (“Under

Federal Rule of Criminal Procedure 43(b)(4), a defendant’s presence at a § 3582(c)

sentence correction proceeding is not required.”) (emphasis in original).

                                         II.

      At his original sentencing, Willingham’s offense level was 42, which

resulted in a Guidelines range of 360 months to life imprisonment. The sentencing

court imposed a 360-month sentence, at the low end of the range. After

Amendment 706, Willingham’s offense level was reduced by two levels, yielding a

new Guidelines range of 292 to 365 months’ imprisonment. Upon Willingham’s

§ 3582(c)(2) motion, the district court imposed a 292-month sentence, at the low

end of the new, amended Guidelines range.

      Willingham argues the district court should have sentenced him below the

amended Guidelines range. He argues the district court was permitted to apply the

factors set forth in 18 U.S.C. § 3553(a) to give him a downward variance from the

Guidelines range after the range had been lowered to account for the crack-cocaine

amendments. It is Willingham’s position that his Guidelines range should be



                                          3
recalculated using a 20:1 crack cocaine ratio.

      A “district court must make two distinct determinations before deciding

whether to reduce a defendant’s sentence under § 3582(c)(2).” United States v.

Vautier, 144 F.3d 756, 760 (11th Cir. 1998). First, the court must determine the

sentence it would have imposed, given the defendant’s amended guideline range

and holding all other guideline findings made at the original sentencing hearing

constant. Id.; United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Second,

the court must consider the factors in § 3553(a) and then determine, in its

discretion, whether to reduce the defendant’s sentence. Vautier, 144 F.3d at 760;

Bravo, 203 F.3d at 781; U.S.S.G. § 1B1.10, cmt. (n.1(B)(i)).

      “[A] sentencing adjustment undertaken pursuant to Section 3582(c)(2) does

not constitute a de novo resentencing. All original sentencing determinations

remain unchanged with the sole exception of the guideline range that has been

amended since the original sentencing.” United States v. Moreno, 421 F.3d 1217,

1220 (11th Cir. 2005) (quotations, alteration, and citation omitted).

      The applicable policy statements, moreover, provide that, unless the

defendant was originally sentenced to a term that was less than the applicable

Guidelines range at the time of sentencing, a reduction pursuant to § 3582(c)(2)

shall not be less than the minimum of the amended Guidelines range. U.S.S.G.



                                          4
§ 1B1.10(b)(2)(A)-(B), and cmt. (n.3). Willingham’s original 360-month sentence

was within the then-applicable Guidelines range of 360 months to life.

Accordingly, the district court was not permitted under § 1B1.10 to sentence

Willingham to a term below the amended Guidelines range of 292 to 265 months.

Id. Therefore, the district court complied with the law when it resentenced

Willingham to 292 months’ imprisonment, the low end of the amended Guidelines

range. See United States v. Melvin, ___ F.3d ___, No. 08-13497, 2009 WL

236053, at *1 (11th Cir. Feb. 3, 2009) (holding Booker and Kimbrough do not

apply to § 3582(c)(2) proceedings). Based upon our holding in Melvin,

Willingham’s argument that the district court should have sentenced him below the

amended Guidelines range is without merit.

      The district court did not err by resentencing Willingham pursuant to 18

U.S.C. § 3582(c)(2) without holding a hearing at which he could argue in

mitigation. The district court also did not err by resentencing Willingham within

the amended Guidelines range. Accordingly, we affirm.

      AFFIRMED.




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