                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 08-13481                   JUNE 2, 2009
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                    D. C. Docket No. 03-00074-CR-T-27TBM

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

GERMAINE B. MCAFFEE,
a.k.a. Man-man,

                                                            Defendant-Appellant.

                          ________________________

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

                                  (June 2, 2009)

Before DUBINA, Chief Judge, TJOFLAT and MARCUS, Circuit Judges.

PER CURIAM:

      Germaine McAffee appeals from the district court’s refusal to consider his

request pursuant to 18 U.S.C. § 3582(c)(2) for a further reduction to his sentence
below the amended guideline range. On appeal, McAffee argues that the district

court’s refusal to sentence him below the amended guideline range was error in

light of United States v. Booker, 543 U.S. 220 (2005). After careful review, we

affirm.

      We review for abuse of discretion a district court’s denial of a defendant’s

request for a sentence reduction under 18 U.S.C. § 3582(c)(2). United States v.

Vautier, 144 F.3d 756, 759 n.3 (11th Cir. 1998). 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. Moore, 541 F.3d

1323, 1326 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct.

965 (2009), and cert. denied, 129 S. Ct. 1601 (2009). We also review de novo

questions of statutory interpretation. Id.

      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). Any reduction, however, must be “consistent with applicable

policy statements issued by the Sentencing Commission.”       Id.   The applicable

policy statement provides that “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



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is less than the minimum of the amended guideline range.”                 U.S.S.G.

§ 1B1.10(b)(2)(A). The policy statement does allow for one exception, see id., but

that exception is not relevant here.

      On this record, it is unclear whether the district court declined to sentence

McAffee below the amended guideline range for discretionary reasons, or because

it concluded that it lacked the authority to do so. We need not resolve that issue,

however, because either way, McAffee’s argument is foreclosed by recent

precedent. In United States v. Melvin, 556 F.3d 1190, 1192-94 (11th Cir. 2009),

we held that Booker does not apply to § 3582(c)(2) proceedings, and thus, the

district court is bound by the limitations imposed by § 1B1.10 and does not have

the authority to sentence below the amended guideline range. See id. (holding that

Booker does 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”), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-

8664). Accordingly, we affirm.

      AFFIRMED.




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