                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-12360                ELEVENTH CIRCUIT
                                                              MARCH 12, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                 D. C. Docket No. 95-00091-CR-ORL-19DAB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ELIJAH WILLIAMS,

                                                           Defendant-Appellant.


                         ________________________

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

                              (March 12, 2009)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     On March 1, 1996, appellant pled guilty to an information charging him
under 21 U.S.C. § 846 with conspiracy to possess with intent to distribute and

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). At sentencing on May 21,

1996, the district court made the following Guidelines calculations. The court

fixed appellant’s offense level at 40 and his criminal history category at IV; that

yielded a sentence range calling for imprisonment for term between 360 months

and life. The court sentenced appellant to prison term of 360 months. He appealed

his sentence, and we affirmed. United States v. Williams, 117 F.3d 1431 (11 th Cir.

1997)(Table).

      On December 12, 2007, appellant moved the district court pursuant to 18

U.S.C. § 3582(c)(2) based on Amendment 706 to the Guidelines, which amended

the base offense levels in U.S.S.G. § 2D1.1(c) applicable to cocaine base (the drug

for which appellant was held accountable at sentencing), see U.S.S.G. App. C,

amends. 706, 711, 713 (Supp. May 1, 2008). Amendment 706 prescribed a two-

level reduction of appellant’s offense level (from 40 to 38). Appellant urged the

court to treat the resulting sentence range as advisory and reduce his sentence to a

term below the sentence range because of his post-sentencing rehabilitation. The

court granted the prescribed two-level reduction, which, combined with a criminal

history category of IV, resulted in a sentence range of 324 to 405 months’

imprisonment. The court then reduced appellant’s prison term to 324 months.



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Appellant now appeals. He argues that, although U.S.S.G. § 1B1.10(b)(1) limited

the offense level reduction under Amendment 706 to two levels, a further reduction

was permissible because the Guidelines, including § 1B1.10(b)(1), are advisory in

all contexts. To this end, he submits that, pursuant to the Supreme Court’s

decisions in Booker1 and Kimbrough2 , every provision of the Guidelines is

advisory in every case, irrespective of the context. He adds that, while United

States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005), holds that Booker does

not apply in § 3582 proceedings, the holding in Moreno was only that neither

§ 3582 nor Booker provides a jurisdictional basis to reduce a sentence for post-

sentencing rehabilitative conduct. Finally, he contends that his sentence of 324

months is unreasonable because it is greater than necessary to fulfill the purposes

of sentencing set out in 18 U.S.C. § 3553(a), especially in light of his post sentence

rehabilitation.

       We held this appeal in abeyance pending this court’s decision in United

States v. Melvin, No. 08-13497. Melvin has been decided, ___ F.3d ____ 2009

WL 236053 (11th Cir. 2009), and it controls our decision here.

Booker and Kimbrough are inapposite; their holdings do not apply in § 3582(c)(2)



       1
           United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
      2
           Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

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proceedings. Amendment 706 only authorized the district court to do what it did,

which was to lower appellant’s offense level. It did not authorize the court to

resentence appellant anew.

      AFFIRMED.




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