                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-10775                ELEVENTH CIRCUIT
                                                               JULY 22, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                 D. C. Docket No. 03-00065-CR-ORL-19-GJK

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ARTHUR LEE AVERY,

                                                           Defendant-Appellant.


                         ________________________

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

                                (July 22, 2009)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Arthur Lee Avery appeals the sentence imposed by the district court
following the grant of his motion for a reduced sentence pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 706 of the Guidelines, which reduced base offense

levels applicable to crack cocaine. As acknowledged by Avery, his argument is

foreclosed by precedent. We recently held that neither United States v. Booker,

543 U.S. 220 (2005), nor Kimbrough v. United States,128 S.Ct. 558 (2007), apply

to § 3582(c)(2) proceedings. Melvin, 556 F.3d at 1192 (holding that “Booker and

Kimbrough do not prohibit the limitations on a judge’s discretion in reducing a

sentence imposed by § 3582(c)(2) and the applicable policy statement by the

Sentencing Commission”). Therefore, the district court is bound by the limitations

imposed by § 1B1.10 and lacks the authority to sentence a defendant below the

amended guideline range. Accordingly, while Avery has preserved his Melvin

challenge, we must affirm his sentence.

      AFFIRMED.




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