                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           APR 2, 2009
                            No. 08-11847                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

              D. C. Docket No. 01-00086-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

WARRICK LASHAWN LEVY,
a.k.a. Walsy,

                                                        Defendant-Appellant.


                      ________________________

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

                             (April 2, 2009)

Before DUBINA, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Appellant Warrick Lashawn Levy, a federal prisoner proceeding pro se,

appeals the district court’s partial denial of his motion for a reduction of sentence,

pursuant to 18 U.S.C. § 3582(c)(2). Finding Levy eligible for relief under

Amendment 706 to the Sentencing Guidelines, the district court reduced his

sentence to the lowest amended guideline range, but denied his request to reduce

his sentence further under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,

160 L. Ed. 2d 621 (2005), finding that it lacked the authority to do so.

      Levy argues that the district court, after granting him the full two-level

reduction, should have varied below the guideline range because the guidelines are

advisory. He asserts that even after the reduction, there still exists a racial disparity

between crack and powder cocaine sentences, and he contends that the district

court should have taken that disparity into account when resentencing him. He

argues that Kimbrough v. United States, 522 U.S. ____, 128 S. Ct. 558, 169 L. Ed.

2d 481(2007), and Booker allow the district court to go below the guideline range

when resentencing because the guidelines and the Sentencing Commission’s policy

statements purporting to limit the amount of the Amendment 706 reduction are

advisory. Levy asserts that the district court must impose a sentence based upon its

evaluation of the 18 U.S.C. § 3553(a) factors, and the policy statements and

commentary in the guidelines do not restrict that requirement.



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      “In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we

review de novo the district court’s legal conclusions regarding the scope of its

authority under the Sentencing Guidelines.” United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002). Under § 3582, a district court may not modify a term

of imprisonment once it has been imposed except where expressly permitted. 18

U.S.C. § 3582(c)(1)(B). One statutory exception to this general rule includes relief

under § 3582(c)(2), which provides:

      [I]n the case of a defendant who has been sentenced to a term of
      imprisonment based on a sentencing range that has subsequently been
      lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
      upon motion of the defendant or the Director of the Bureau of Prisons,
      or on its own motion, the court may reduce the term of imprisonment,
      after considering the factors set forth in section 3553(a) to the extent
      that they are applicable, if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

      On November 1, 2007, the Sentencing Commission promulgated

Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).

U.S.S.G. App. C, Amend. 706. The effect of Amendment 706 is to provide a

two-level reduction in base offense levels for certain crack-cocaine offenses. See

id. The Commission made this amendment retroactively applicable, effective as of

March 3, 2008. See U.S.S.G., App. C, Amend. 713. Section 1B1.10 of the

Sentencing Guidelines generally prohibits a court from resentencing a defendant

                                          3
below the amended guideline range when reducing the sentence under

§ 3582(c)(2). U.S.S.G. § 1B1.10.(b)(2) (made effective on March 3, 2008, by

Amendment 712). In United States v. Melvin, we held that Booker and Kimbrough

do not apply to § 3582(c)(2) proceedings to allow a court to sentence below the

amended guideline range. ___ F.3d ___ , No. 08-13497 (11th Cir. Feb. 3, 2009).

      After reviewing the records and reading the parties’ briefs, we conclude that

the district court did not err in finding it lacked authority to sentence Levy below

the amended guideline range because neither Booker nor Kimbrough applied, and it

was otherwise bound by the restrictions imposed by the Sentencing Commission.

Accordingly, we affirm Levy’s sentence.

      AFFIRMED.




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