                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-10835                ELEVENTH CIRCUIT
                                                              JULY 22, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                 CLERK

                  D. C. Docket No. 03-00377-CR-T-27-EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

KENDRICK T. MORGAN,
a.k.a. Scoop,

                                                          Defendant-Appellant.


                        ________________________

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

                               (July 22, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
      Kendrick T. Morgan, a federal prisoner convicted of a crack cocaine offense,

appeals through counsel the sentence the district court imposed after granting his

pro se motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 706, which lowered the base offense levels applicable to offenses

involving crack cocaine. The district court found that Amendment 706 reduced

Morgan’s guideline sentencing range from 168 to 210 months to 135 to 168

months, and imposed a sentence of 135 months’ imprisonment. On appeal,

Morgan argues that district court erred by failing to consider United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and the 18 U.S.C.

§ 3553(a) factors to determine whether a further reduction was appropriate. For

the reasons set forth below, we affirm.

                                          I.

      “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). We review for an abuse of discretion a district

court’s decision whether to reduce a sentence pursuant to § 3582(c)(2). Id.

      A district court may modify a term of imprisonment in the case of a

defendant who was sentenced to a term of imprisonment based on a sentencing



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range that has subsequently been lowered by the Sentencing Commission. 18

U.S.C. § 3582(c)(2). When considering a § 3582(c)(2) motion, a district court

must engage in a two-part analysis. “Initially, the court must recalculate the

sentence under the amended guidelines, first determining a new base level by

substituting the amended guideline range for the originally applied guideline range,

and then using that new base level to determine what ultimate sentence it would

have imposed.” United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Next,

the court must decide, in light of the § 3553(a) factors and in its discretion, whether

it will impose the newly calculated sentence or retain the original sentence. Id. at

781.

                                          II.

       Morgan’s Booker argument is without merit, because Booker does not apply

to § 3582(c)(2) proceedings and the district court was, therefore, not authorized to

reduce Morgan’s sentence below the low end of the amended guideline range. See

United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir.) (holding that Booker

does 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”), cert. denied, 129 S.Ct. 2382 (2009); see also, U.S.S.G.

§ 1B1.10(b)(2)(A) (prohibiting a court from reducing a defendant’s sentence below



                                           3
the amended guideline range in a § 3582(c)(2) proceeding).

      The record demonstrates that the district court calculated Morgan’s amended

Guideline range and, after applying the U.S.S.G. § 4A1.3 departure Morgan

received at his initial sentencing, sentenced Morgan at the low end of the guideline

range. Bravo, 203 F.3d at 780; see also, U.S.S.G. § 1B1.10(b)(2)(B) (allowing

comparable reduction for departures imposed at initial sentencing). While the

district court did not state that it had considered the § 3553(a) factors in

determining the extent of the reduction, and specifically stated that it would not

consider these factors in determining whether a further reduction was warranted,

the court was not authorized to further reduce Morgan’s sentence. See U.S.S.G.

§ 1B1.10(b)(2)(A) (prohibiting reduction to a “term that is less than the minimum

of the amended guideline range”). Thus, even if the court erred by not considering

the § 3553(a) factors in determining the extent of the reduction, such error is

harmless, because Morgan would not have received a lower sentence even if the

court had considered the § 3553(a) factors. See United States v. Arevalo-Juarez,

464 F.3d 1246, 1252 (11th Cir. 2006) (holding that we will “affirm for harmless

error in the sentencing context if . . . the sentencing court would have likely

sentenced the defendant in the same way absent the error”); U.S.S.G.

§ 1B1.10(b)(2)(A). Accordingly, we affirm Morgan’s sentence.



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AFFIRMED.




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