                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                              AUGUST 6, 2009
                                  No. 08-14332               THOMAS K. KAHN
                              Non-Argument Calendar              CLERK
                            ________________________

                        D. C. Docket No. 95-00159-CR-CB

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

JOE LOUIS HARRELL,
a.k.a. Joe Lewis Harrell,
a.k.a. Motorcycle Joe,
a.k.a. Little Joe,

                                                            Defendant-Appellant.


                            ________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                         _________________________
                                (August 6, 2009)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Joe Louis Harrell, pro se, appeals the sentence imposed by the district court

following the grant of his motion for a reduced sentence, pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 706 to the Sentencing Guidelines. Harrell argues

that the district court erred in failing to grant him a downward variance in light of

Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007),

and in failing to address his assertions of error in his trial and original sentencing

hearing. He also argues that the district court erred in failing to hold a hearing to

address his arguments relating to these issues.

      “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). 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 rage that has subsequently 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. The applicable policy statements provide that a § 3582(c)(2)

proceeding is not “a full resentencing of the defendant.” U.S.S.G. § 1B1.10(a)(3).

“[A]ll original sentencing determinations [must] remain unchanged with the sole

exception of the guideline range that has been amended since the original



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sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000).

Furthermore, Kimbrough is not applicable to § 3582(c)(2) proceedings. United

States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009), cert. denied, (U.S. May

18, 2009) (No. 08-8664). A defendant is not entitled to a hearing on a § 3582(c)(2)

motion. See Fed.R.Crim.P. 43(b)(4) (stating that the defendant's presence is not

required at a § 3582(c)(2) proceeding).

      Harrell’s argument for a downward variance is foreclosed by precedent. See

Melvin, 556 F.3d at 1192-93. Harrell’s remaining assertions of error were outside

the scope of the proceeding, see Bravo, 203 F.3d at 781, and he was not entitled to

a hearing on his motion, see Fed.R.Crim.P. 43(b)(4).

      For the foregoing reasons, we affirm.

      AFFIRMED.




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