                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                FEB 11, 2009
                                No. 08-14378                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                       D. C. Docket No. 97-00251-CR-CB

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

BARRY LEON ARDLEY,

                                                            Defendant-Appellant.

                          ________________________

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

                              (February 11, 2009)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Barry Leon Ardley, a federal prisoner convicted of crack cocaine offenses,

appeals the district court’s reduction of his sentences under Amendment 706
and 18 U.S.C. § 3582(c)(2). Ardley contends that the district court erroneously

failed to apply United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), at his

resentencing.

      We review de novo a district court’s conclusions about the scope of its

authority to reduce a sentence under 18 U.S.C. § 3582(c)(2). United States v.

Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).

      In this case, Ardley’s original offense level was 38 and his criminal history

category was I, giving him a guidelines range of 235 to 293 months. He was

sentenced to 293 months. After Amendment 706 became retroactive, Ardley’s

offense level dropped to 36 and his guidelines range became 188 to 235 months.

In resentencing Ardley under § 3582(c)(2), the district court noted that “[i]mposing

a similar high-end sentence under the revised guidelines would result in a sentence

of 235 months.” Without elaboration the district court then stated its intention to

resentence Ardley to 235 months. Ardley objected because he wanted a sentence

below the amended guidelines range, and he argued that under Booker the court

had the authority to give him such a sentence. Ardley asked the district court to

apply Booker, or at least to clarify whether it believed that Booker applied and if

not, to state why not. The district court did not respond to that request, but instead

entered its order sentencing Ardley to 235 months. Therefore, it is not entirely



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clear whether the district court believed that it could use Booker to deviate below

the amended guidelines range and simply declined to, or whether the district court

believed that Booker was entirely inapplicable to resentencings under § 3582(c)(2).

Ardley asks us to presume that the district court believed that Booker was

inapplicable.

      Ardley argues only that the district court erred in failing to apply Booker at

his § 3582(c) resentencing. Recently this circuit joined the Eighth, Fourth, and

Tenth Circuits in holding that Booker does not apply at resentencing proceedings

under § 3582(c)(2). United States v. Melvin, __ F.3d __, No. 08-13497 (Feb. 3,

2009); see also United States v. Starks, __ F.3d __, No. 08-2590, 2009 WL 66115

(8th Cir. Jan. 13, 2009); United States v. Dunphy, __ F.3d __, No. 08-6919, 2009

WL 19139 (4th Cir. Jan. 5, 2009); United States v. Rhodes, 549 F.3d 833 (10th

Cir. 2008). There was no error at the resentencing.

      AFFIRMED.




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