                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              MAY 29, 2009
                               No. 08-15381                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                 D.C. Docket No. 01-00027-CR-ORL-31DAB

UNITED STATES OF AMERICA,


                                                                Plaintiff–Appellee,

                                    versus

RANDALL L. ATWELL,

                                                          Defendant–Appellant.


                         ________________________

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

                                (May 29, 2009)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Randall L. Atwell, through counsel, appeals the sentence imposed by the
district court following the court’s sua sponte reduction of his sentence, pursuant to

18 U.S.C. § 3582(c)(2), and the denial of his post-order motion for reconsideration.

Atwell’s sentence reduction was based on Amendment 706 to the Guidelines,

which reduced base offense levels applicable to crack cocaine. On appeal, Atwell

argues that the district court erred in its application of § 3582(c)(2) when it refused

to sentence him below the minimum of the amended guideline range. Atwell

asserts that, despite the language of U.S.S.G. § 1B1.10, which constrains the

court’s authority to vary from the amended range, that section, like all of the

Guidelines, is merely advisory under United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005). Atwell also argues that the court imposed an

unreasonable sentence by applying the guidelines as mandatory and failing to

specifically discuss the applicability of the 18 U.S.C. § 3553(a) factors.

      “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 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



                                           2
Commission.” Id. The applicable policy statements, found in § 1B1.10, state 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.” U.S.S.G. § 1B1.10(b)(2)(A).

      If the defendant is eligible for a sentence reduction, the district court must

consider the § 3553(a) factors in deciding whether to grant the reduction and, if so,

the extent of it. United States v. Williams, No. 08-11361, manuscript op. at 6-7

(11th Cir. Feb. 9, 2009). “The district court is not required to articulate specifically

the applicability, if any, of each factor, as long as the record as a whole

‘demonstrates that the pertinent factors were taken into account by the district

court.’” United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998) (quoting

United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997)).

      Upon review of the record and the parties’ briefs, we discern no reversible

error. Atwell’s argument that the court erred in refusing to sentence him below the

amended guideline range is foreclosed by precedent. We recently held that Booker

does not apply to § 3582(c)(2) proceedings and thus the court is bound by the

limitations imposed by § 1B1.10 and does have the authority to sentence below the

amended guideline range. See United States v. Melvin, No. 08-13497, manuscript

op. at 7 (11th Cir. Feb. 3, 2009) (holding that Booker does not “prohibit the



                                            3
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). Furthermore, the record

demonstrates that the district court adequately accounted for the § 3553(a) factors

in arriving at Atwell’s amended 168-month sentence. Accordingly, we affirm.

      AFFIRMED.




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