                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                 FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-12734                ELEVENTH CIRCUIT
                                                            APRIL 20, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                D. C. Docket No. 98-00228-CR-T-17-MAP

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

JOHN WESLEY POWELL,
a.k.a. Al,
a.k.a. Mailman,

                                                        Defendant-Appellant.


                      ________________________

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

                             (April 20, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
       John Wesley Powell appeals the district court’s order reducing his sentence.

Pursuant to 18 U.S.C. § 3582(c)(2), the court reduced his sentence to the minimum

of his amended guidelines range but denied his request for a reduction below this

range. For the reasons that follow, we AFFIRM the district court’s order.

                                     I. BACKGROUND

       In 1999, Powell was convicted of conspiracy to distribute cocaine and

cocaine base and sentenced to 235 months of imprisonment by the United States

District Court for the Middle District of Florida. R1-1291 at 1. In February 2008,

the district court sua sponte determined that Amendment 706 to the United States

Sentencing Guidelines, which lowered the base offense level for a cocaine base

offense by two, might be applicable to Powell’s sentence.1 R1-1245 at 1. The

court subsequently determined that Amendments 706 and 711 reduced Powell’s

base offense level and thus reduced his sentence to 188 months, the minimum of

his amended guidelines range. R1-1291 at 4, R1-1301 at 1. However, the court

determined that it had no authority under United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005) to grant Powell’s request for a further reduction. R1-1303.

Powell appealed this order.


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          The court appointed a federal public defender to represent him in seeking a reduction of
his original sentence. Id. Around the same time, Powell filed a pro se motion to reduce his
sentence based on § 3582(c)(2) and Amendment 706, which the district court dismissed as moot.
R1-1267, 1269.

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                                  II. DISCUSSION

      On appeal, Powell argues that the district court erred in denying his motion

for a below-guidelines sentence reduction. He contends that Booker, along with

Kimbrough v. United States, 552 U.S.      , 128 S. Ct. 558 (2007), and Gall v.

United States, 552 U.S.    , 128 S. Ct. 586 (2007), establishes that the guidelines

are advisory in all contexts, including § 3582(c) proceedings, and that the district

court therefore had the discretion to sentence him below the amended guidelines

range. We review de novo a district court’s legal conclusions about the scope of its

authority to modify a sentence under § 3582(c). See United States v. White, 305

F.3d 1264, 1267 (11th Cir. 2002) (per curiam).

      Section 3582(c)(2) permits a district court to reduce a defendant’s sentence

if that defendant “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. § 944(o)” and such a reduction is consistent

with policy statements issued by the Sentencing Commission. 18 U.S.C.

§ 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May 1, 2008). The

Commission’s policy statements instruct a district court not to reduce a sentence

under § 3582(c)(2) “to a term that is less than the minimum of the amended

guideline range.” U.S.S.G. § 1B1.10(b)(2)(A). Section 3582(c)(2) would thus not



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permit the district court to reduce Powell’s sentence below his amended guidelines

range. Furthermore, we have rejected Powell’s argument that Booker et al. trump

these provisions and give a district court the authority to reduce a sentence below

the amended guidelines range. See United States v. Melvin, No. 08-13497,

F.3d    , 2009 WL 236053, at *1, 3 (11th Cir. Feb. 3, 2009) (per curiam) (holding

that Booker and Kimbrough “do not apply to § 3582(c)(2) proceedings” and “do

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”). The district court thus had no authority to reduce Powell’s

sentence below the amended guidelines range and therefore did not err in refusing

to grant such a reduction.

                                III. CONCLUSION

       Powell appeals the district court’s order reducing his sentence to the

minimum of his amended guidelines range but denying his request for a reduction

below this range. The district court had no authority under 18 U.S.C. § 3582(c)(2)

to grant such a further reduction, and Booker and its progeny did not give the court

such discretion. Accordingly, we AFFIRM the district court’s order.

       AFFIRMED.




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