                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              FEB 27, 2009
                               No. 08-14940                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 89-00029-CR-OC-10GRJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ROBERT HARRIS,

                                                          Defendant-Appellant.


                         ________________________

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

                             (February 27, 2009)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Robert Harris, through counsel, appeals the sentence imposed by
the district court following the grant of Harris’s pro se motion for a reduced

sentence, pursuant to 18 U.S.C. § 3582(c)(2). Harris’s § 3582(c)(2) motion was

based on Amendment 706 to the Guidelines, which reduces base offense levels

applicable to crack cocaine. On appeal, Harris argues that the district court erred in

its application of § 3582(c)(2) when it refused to sentence him below the minimum

of the amended guideline range. Harris asserts that, despite the language of

U.S.S.G. § 1B1.10, which purports to constrain the court’s authority to vary from

the amended range, that section, like all of the Guidelines, is merely advisory under

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

      In the § 3582(c)(2) context, we review “de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). We also review “de

novo questions of statutory interpretation.” United States v. Maupin, 520 F.3d

1304, 1306 (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 has subsequently been lowered by the Sentencing Commission. 18

U.S.C. § 3582(c)(2). This authority is limited to those Guideline amendments

listed in U.S.S.G. § 1B1.10(c) that “have the effect of lowering the defendant’s



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applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Amendment 706 is

listed in § 1B1.10(c). See U.S.S.G. App. C, amend. 713. Effective November 1,

2007, Amendment 706 adjusted downward by two levels the base offense level

assigned to each threshold quantity of crack cocaine listed in the Drug Quantity

Table in U.S.S.G. § 2D1.1. See U.S.S.G. App. C, amend. 706. Therefore, a

district court has discretion to reduce the sentence of a defendant whose sentencing

range has been lowered by Amendment 706. Any sentencing reduction, however,

must be “consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). The Commission’s policy statements

direct that a defendant is not entitled to a full resentencing during § 3582(c)(2)

proceedings. U.S.S.G. § 1B1.10(a)(3).

      Section 1B1.10(b)(2) also provides in relevant part:

      (2) Limitations and Prohibition on Extent of Reduction.–

      (A) In General.–Except as provided in subdivision (B), the court shall
      not reduce the defendant’s term of imprisonment under 18 U.S.C.
      3582(c)(2) and this policy statement to a term that is less than the
      minimum of the amended guideline range determined under
      subdivision (1) of this subsection.

      (B) Exception.–If the original term of imprisonment imposed was less
      than the term of imprisonment provided by the guideline range
      applicable to the defendant at the time of sentencing, a reduction
      comparably less than the amended guideline range determined under
      subdivision (1) of this subsection may be appropriate. However, if the
      original term of imprisonment constituted a non-guideline sentence

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      determined pursuant to 18 U.S.C. 3553(a) and United States v.
      Booker, 543 U.S. 220 (2005), a further reduction generally would not
      be appropriate.


U.S.S.G. § 1B1.10(b)(2) (made effective on March 3, 2008, by Amendment 712).

      We recently held, in United States v Melvin, ___ F.3d ___, No. 08-13497

(11th Cir. Feb. 3, 2009), that Booker does not apply to § 3582(c)(2) proceedings

and thus the court is bound by the limitations imposed by § 3582(c)(2) and does

not have the authority to sentence below the amended guideline range. Melvin,

manuscript op. at 2, 9. Because of our holding in Melvin, supra, Harris’s argument

that the district court should have sentenced him below the minimum guideline

range due to its application of § 3582(c)(2) is without merit. Accordingly, we

affirm Harris’s sentence.

      AFFIRMED.




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