                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 08-12733                    MAY 4, 2009
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                  D. C. Docket No. 02-00448-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

DARRELL T MIDDLEBROOKS,
a.k.a. D-Lo,

                                                            Defendant-Appellant.


                         ________________________

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

                                 (May 4, 2009)

Before BIRCH, BARKETT and FAY, Circuit Judges.

PER CURIAM:

     Darrell T. Middlebrooks, a federal prisoner convicted of conspiracy to
possess with intent to distribute 5 kilograms or more of a substance containing a

detectable amount of cocaine and 50 grams or more of a substance containing a

detectable amount of cocaine base (“crack cocaine”), in violation of 21 U.S.C.

§§ 846 and 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(iii), proceeding pro se, appeals

the district court’s sua sponte reduction of his sentence, pursuant to 18 U.S.C.

§ 3582(c)(2). The district court reduced Middlebrooks’s sentence to the low end of

his amended guideline range based on Amendment 706 to the Sentencing

Guidelines, which reduced the offense levels associated with certain crack cocaine

offenses.

       On appeal, Middlebrooks generally argues that the district court erred by not

reducing his sentence below the low end of his amended guideline range based on

the advisory nature of the guidelines. Middlebrooks also argues that the

government’s attempt to limit a reduction to only two levels contravenes

§ 3582(c)(2)’s mandate that a court consider the 18 U.S.C. § 3553(a) factors in a

resentencing proceeding.1


       1
          Middlebrooks moved for appointment of counsel when he filed his brief, arguing that
the case was too complex for him to address without assistance of counsel. Middlebrooks’ brief,
however, adequately addressed his arguments. His motion for appointment of counsel is
DENIED.

         In response to Middlebrooks’s appeal, the government moved for summary affirmance
or, if the motion was denied, for its motion be treated as its brief. Although we may summarily
affirm in some circumstances, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969), we do not do so in this case. The government’s motion for summary affirmance is

                                               2
       “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). However, in the § 3582(c)(2) context, we review “de novo the

district court’s determination of the scope of its authority to reduce a sentence

under 18 U.S. C. § 3582.” United States v. Melvin, 556 F.3d 1190, 1191 (11 th Cir.)

(per curiam), petition for cert. filed (U.S. Feb. 10, 2009) (No. 08-8664).

       In Melvin, we addressed a § 3582(c)(2) motion based on Amendment 706

and held that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) and

Kimbrough v. United States, 552 U.S.           , 128 S. Ct. 558 (2007) “do not apply to

§ 3582(c)(2) proceedings” and that “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.” 556 F.3d at 1190. Specifically, we held that the district

court was bound by U.S.S.G. § 1B1.10(b)(2)(A)’s limitation on the court’s

discretion to impose a sentence below the low end of the defendant’s amended

guideline range. Id. at 1192-94.2

           Because the district court did not have the authority to sentence

DENIED and its motion for its motion to be treated as its brief is GRANTED.
       2
          This limitation on the imposition of a sentence below the low end of the defendant’s
amended guideline range also moots Middlebrooks’ argument concerning the government’s
attempts to limit the reduction in his sentence to only two levels.

                                                3
Middlebrooks below the low end of his amended guideline range, the court

committed no error in resentencing him. Accordingly, we discern no reversible

error.

         AFFIRMED.




                                        4
