                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             May 6, 2009
                             No. 08-14958                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 93-00252-CR-UUB

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MIKE RILEY,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 6, 2009)


Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Mike Riley appeals the sentence imposed by the district court following the

grant of his pro se motion for a reduced sentence, pursuant to 18 U.S.C.

§ 3582(c)(2). Riley’s § 3582(c)(2) motion was based on Amendment 706 to the

Guidelines, which reduced base offense levels applicable to crack cocaine. Riley’s

original total offense level was 40, with a criminal history category of I, resulting

in a Guidelines range of 292 to 365 months’ imprisonment. Riley was originally

sentenced to 292 months’ imprisonment. Riley’s amended total offense level was

38, resulting in an amended Guidelines range of 238 to 293 months’ imprisonment.

The district court resentenced Riley to 238 months’ imprisonment.

      Riley asserts the district court erred in its application of § 3582(c)(2) when it

refused to sentence him below the minimum of the amended Guidelines range.

Riley 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, 125 S. Ct. 738

(2005).

      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, 556 F.3d 1190, 1190 (11th Cir. 2009),



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petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664). 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, Riley’s argument the district court should

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

applicable policy statement, 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 Riley’s sentence.

      AFFIRMED.




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