                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-14176                ELEVENTH CIRCUIT
                                                            MARCH 12, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                 D. C. Docket No. 98-00307-CR-T-26-TBM



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JEREMIAH HUDSON, JR.,
a.k.a. JJ,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 12, 2009)


Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Jeremiah Hudson, Jr., a federal prisoner convicted of crack cocaine offenses,

through counsel, appeals the district court’s grant of his motion for a reduced

sentence, pursuant to 18 U.S.C. § 3582(c)(2). Hudson’s motion was based on

Amendment 706 to the Sentencing Guidelines, which lowered the base offense

levels associated with crack-cocaine offenses. This appeal presents the following

factual situation: the district court granted Hudson’s § 3582(c)(2) motion, reduced

his offense level by two levels, and sentenced him at the lowest point in his

amended Guidelines range. In so doing, the court declined Hudson’s request to

impose a variance below the amended Guidelines range in the § 3582(c)(2)

proceeding, indicating that, even if it had the authority to impose a variance below

the amended Guidelines range under United States v. Booker, 125 S. Ct. 738

(2005), it would impose the same sentence. On appeal, Hudson generally argues

that the district court erred in denying his request to reduce his sentence below the

low-end of the amended Guidelines range, finding it lacked authority under Booker

to do so.

      We recently addressed whether Booker and Kimbrough v. United States, 128

S. Ct. 558 (2007), prohibit Congress or the Sentencing Commission from limiting

the discretion of a district court in reducing a sentence under 18 U.S.C.

§ 3582(c)(2). See United States v. Melvin, ___ F.3d ___, No. 08-13497, 2009 WL



                                           2
236053, at *1 (11th Cir. Feb. 3, 2009). Concluding Booker and Kimbrough do not

apply to § 3582(c)(2) proceedings, we held a district court is bound by the

limitations on its discretion imposed by § 3582(c)(2) and the applicable policy

statements by the Sentencing Commission. Id.

      Based upon our holding in Melvin, Hudson’s argument that the district court

should have sentenced him below the amended Guidelines range is without merit.

The applicable policy statement here, U.S.S.G. § 1B1.10(b)(2), and its commentary

preclude a district court from reducing a defendant’s sentence below the amended

Guidelines range if the defendant’s original sentence fell within the then-applicable

Guidelines range. Accordingly, we affirm Hudson’s sentence.

      AFFIRMED.




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