                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 08-13272                    APRIL 9, 2009
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                    D. C. Docket No. 94-06003-CR-DTKH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ROBERT LEWIS SMITH,

                                                           Defendant-Appellant.


                         ________________________

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

                                (April 9, 2009)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Robert Lewis Smith, a federal prisoner convicted of a crack
cocaine offense, through counsel, appeals the district court’s grant of his pro se

motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2). Smith’s

motion was based on Amendment 706 to the Sentencing Guidelines, which

lowered the base offense levels associated with crack cocaine offenses, as well as

an argument that the district court could further reduce his sentence under United

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

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

(2007). The district court granted the motion in part, recalculated the guideline

range applying Amendment 706, and imposed a sentence at the corresponding

point near the middle of the amended guideline range.

      On appeal, Smith argues that Booker and Kimbrough apply to § 3582(c)(2)

proceedings, and that the district should further reduce his sentence after

considering his post-sentence rehabilitation and the continuing crack/powder

disparity. He argues that the district court should impose a sentence below the

amended guideline range, but that, based on the factors he presented, the district

court should at least reduce to the low end instead of the middle of the amended

guideline range. Smith also argues that he was denied assistance of counsel

because the district court ruled on his motion without allowing appointed counsel

to present arguments on his behalf.



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Discretion to impose a sentence within the amended guideline range

         “We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003). In addition, 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).

         The district court must engage in a two-part analysis when determining

whether to reduce a defendant’s sentence pursuant to an 18 U.S.C. § 3582(c)(2)

motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). The court

must: (1) recalculate the sentence under the amended Guidelines, and (2) decide, in

its discretion, whether it will choose to impose a new sentence or retain the original

sentence. Id. at 780-81. The second part of the analysis “should be made in light

of the factors listed in 18 U.S.C. § 3553(a).” Id. at 781. While a district court must

consider the § 3553(a) factors, it “commits no reversible error by failing to

articulate specifically the applicability–if any–of each of the section 3553(a)

factors, as long as the record demonstrates that the pertinent factors were taken into

account by the district court.” United States v. Eggersdorf, 126 F.3d 1318, 1322



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(11th Cir. 1997).

      Under 18 U.S.C. § 3582(c)(2), the court may not modify a term of
      imprisonment once it has been imposed except

      in 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) (emphasis added).

      The policy statement applicable to § 3582(c)(2) proceedings is U.S.S.G.

§ 1B1.10, which instructs courts how to determine the amended guideline range.

U.S.S.G. § 1B1.10(b)(1) (2008). The policy statement provides in relevant part

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 is less than the

minimum of the amended guideline range determined under [§ 1B1.10(b)(1)].”

U.S.S.G. § 1B1.10(b)(2)(A).

      In United States v. Melvin, ___ F.3d ___, ___ (11th Cir. February 3, 2009)

(No. 08-13497), we held that § 3582(c)(2) only allows a district court to reduce

sentences in a manner “consistent with the applicable policy statements of the

Sentencing Commission.” Id., at 9. We noted that the policy statement applicable



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to § 3582(c)(2) proceedings prohibited the district court from reducing a term of

imprisonment below the low end of the amended guideline range. Id. at 5, 9; see

U.S.S.G. § 1B1.10(b)(2)(A). We further held that Booker and Kimbrough do not

apply to § 3582(c)(2) proceedings, and that the district court could not rely on

Booker or Kimbrough to reduce the defendant’s sentence below the low end of the

amended guideline range. Melvin, ___ F.3d at ___.

      After reviewing the record, we conclude that the district court did not abuse

its discretion in imposing a reduced sentence within the amended guideline range.

Furthermore, the district court did not err in declining to reduce Smith’s sentence

further pursuant to Booker and Kimbrough because Booker and Kimrough do not

apply to § 3582(c)(2) proceedings. Accordingly, we affirm Smith’s sentence.

Assistance of Counsel

      Proceedings under § 3582(c)(2) “do not constitute a full resentencing of the

defendant,” U.S.S.G. § 1B1.10(a)(3), or a de novo resentencing,. United States v.

Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). Moreno, 421 F.3d at 1220. Citing

Fed.R.Crim.P. 43(a)(3) and (b)(4), we have held that, although the defendant must

be present at his initial sentencing, he “need not be present at proceedings

involving the correction or reduction of sentence under . . . 18 U.S.C. § 3582(c).”

United States v. Parrish, 427 F.3d 1345, 1347 (11th Cir. 2005) (quotation omitted).



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      Because Smith was not entitled to a hearing, and the district court granted

his motion for a reduced sentence, we conclude that Smith was not denied

assistance of counsel.

      AFFIRMED.




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