                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAR 13, 2009
                             No. 08-13879                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 03-00056-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DEXTER LEON GRANT,
a.k.a. Leon,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 13, 2009)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Dexter Leon Grant, a federal prisoner convicted of a crack cocaine offense,

appeals the district court’s partial grant of his 18 U.S.C. § 3582(c)(2) motion for a

sentence reduction under Sentencing Guidelines Amendment 706, which lowered

the base offense levels applicable to crack cocaine offenses. Grant’s initial

sentencing range was 151 to 188 months’ imprisonment, based on a total offense

level of 34. The district court determined his amended range was 121 to 151

months’ imprisonment, based on an offense level of 32. The district court reduced

Grant’s sentence to 121 months’ imprisonment, but expressly refused to reduce his

sentence further pursuant to United States v. Booker, 125 S. Ct. 738 (2005), finding

Booker was inapplicable to § 3582(c)(2) proceedings.

      On appeal, Grant disputes the district court’s conclusion that U.S.S.G.

§ 1B1.10 restricted its authority to reduce his sentence pursuant to § 3582(c)(2).

He argues the district court erred by treating the Guidelines as mandatory when

ruling on his § 3582(c)(2) motion. He asserts, after the Booker decision, all of the

Guidelines, including § 1B1.10, are advisory, and the Sentencing Commission is

not permitted to authorize the retroactive application of a particular guideline,

allowing the district court to reimpose sentence, and then limit the district court’s

discretion in imposing the sentence.

       A district court may not modify a term of imprisonment once it has been



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imposed except where expressly permitted by statute or by Federal Rule of

Criminal Procedure 35. See 18 U.S.C. § 3582(c)(1)(B). These exceptions include

relief under § 3582(c)(2), which states:

      [I]n the case of a defendant who 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. 994(o),
      upon motion of the defendant or the Director of the Bureau of Prisons,
      or on its own motion, the court may reduce the term of imprisonment,
      after considering the factors set forth in section 3553(a) to the extent
      that they are applicable, if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

      The applicable policy statement in this case is U.S.S.G. § 1B1.10, which

pertains to Guidelines amendments that may be applied retroactively, including

Amendment 706. Section 1B1.10 provides, in cases in which the defendant

received a within-Guidelines sentence at his original sentencing, a reduction

pursuant to § 3582(c)(2) shall not be less than the minimum of the amended

Guidelines range. § 1B1.10(b)(2)(A)-(B) & cmt. n.3.

      This Court recently addressed whether Booker prohibits Congress or the

Sentencing Commission from limiting the discretion of a district court in reducing

a sentence under 18 U.S.C. § 3582(c)(2). See United States v. Melvin, ___ F.3d

___, No. 08-13497, 2009 WL 236053, at *1 (11th Cir. Feb. 3, 2009). Concluding

Booker does not apply to § 3582(c)(2) proceedings, we held a district court is

                                           3
bound by the limitations on its discretion imposed by § 3582(c)(2) and the

applicable policy statements by the Sentencing Commission. Id.

      The applicable policy statement here, § 1B1.10, and its commentary

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

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

Guidelines range. Grant’s original sentence was within the Guidelines range.

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

to a term below the amended Guidelines range. Based upon our holding in Melvin,

Grant’s argument that the district court erred by concluding it lacked authority to

reduce his sentence below the amended Guidelines range is without merit.

      AFFIRMED.




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