                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-14171                  MARCH 25, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                 D. C. Docket No. 04-00249-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RYAN D. MOORE,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 25, 2009)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Ryan Moore appeals his sentence of imprisonment for 135 months imposed
after the district court reduced Moore’s original sentence of imprisonment of 180

months for his drug crimes. 18 U.S.C. § 3582(c)(2). Moore argues that his

sentence is unreasonable. We affirm.

                                  I. BACKGROUND

       Moore pleaded guilty in 2004 to conspiracy to possess and possession with

intent to distribute 50 grams or more of cocaine base, 18 U.S.C. § 2; 21 U.S.C. §§

841(a), (b)(1)(A)(i) & (iii), 846, and possession with intent to distribute a quantity

of cocaine, 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(C). The presentence

investigation report provided a base offense level of 36, United States Sentencing

Guidelines § 2D1.1(c)(2) (Nov. 2004), increased it by two levels for possession of

a firearm, id. § 2D1.1(b)(1), and reduced it by three levels for Moore’s acceptance

of responsibility, id. § 3E1.1. With a total offense level of 35 and a criminal

history of V, the report listed a guideline range between 262 and 327 months of

imprisonment. Moore’s cocaine base offenses required a minimum sentence of ten

years of imprisonment, while his cocaine offense had a statutory maximum

sentence of twenty years of imprisonment.

       At the sentencing hearing, the district court stated that Moore “fac[ed]

almost the next 20 years of [his] young life in a Federal penitentiary[,] . . . [b]ut . . .

[was] also required to nevertheless take into account the factors in Title 18 of the



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United States Code, section 3553(a).” The court considered evidence that Moore’s

mother was addicted to crack cocaine when Moore was born, granted Moore a

downward variance, and sentenced him below the guidelines to three concurrent

terms of 180 months of imprisonment.

      In 2008, Moore moved to reduce his sentence. 18 U.S.C. § 3582(c)(2).

Moore argued that he was entitled to a two level reduction of his base offense

level, which provided a guideline range between 188 and 235 months of

imprisonment. See U.S.S.G. App. C, Amend. 706 (Supp. Nov. 1, 2007). Moore

requested that the district court sentence him to 122 months of imprisonment.

      The district court appointed a public defender to represent Moore, instructed

the United States Probation Office to provide a supplemental presentence

investigation report, and ordered the parties to respond to the supplemental report.

The government responded that Amendment 706 applied to Moore and stated that

the district court could vary downward from the amended guideline range, but

argued that Moore should receive at least a sentence of 142 months of

imprisonment. Moore argued for a maximum sentence of 135 months of

imprisonment, based on his background and his conduct while in prison, and the

disparity between sentencing ranges for crack and powder cocaine discussed in

Kimbrough v. United States, 128 S. Ct. 558 (2007).



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      The district court granted Moore’s motion and reduced his sentence to 135

months of imprisonment. The court determined that Moore was “eligible . . . for a

reduction in his base offense level pursuant to Amendments 706 and 711 of the

United States Sentencing Guidelines.”

                          II. STANDARDS OF REVIEW

      “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) (citing United States v. Pelaez, 196 F.3d 1203, 1205

(11th Cir. 1999)). We review the reasonableness of a sentence for an abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007).

                                 III. DISCUSSION

      Moore challenges his reduced sentence on two grounds. First, Moore argues

that the district court failed to consider the decision of the Supreme Court in

Kimbrough v. United States, 128 S. Ct. 558 (2007), when the district court

recalculated his sentence. Second, Moore argues that the district court failed to

consider his post-sentencing conduct. These arguments fail.

      Moore’s argument about the effect of Kimbrough is foreclosed by our

decision in United States v. Melvin, No. 08-13497 (11th Cir. Feb. 3, 2009). We



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explained that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),

excised only those provisions applicable to an original sentencing hearing and did

not address the separate provision that allows a district court to reduce a sentence

based on retroactive amendments of the Guidelines, 18 U.S.C. § 3582(c). Melvin,

No. 08-13497, slip op. at 7–8. Kimbrough, which applied Booker, likewise did not

affect requests to modify a sentence. Melvin, slip op. at 9. The district court could

not rely on Kimbrough to reduce Moore’s sentence.

      The district court was not required to grant Moore a greater reduction of

sentence. A district court may reduce a term of imprisonment when the guideline

range is lowered by the Sentencing Commission. 18 U.S.C. § 3582(c). After the

district court recalculates the sentence under the amended guidelines, it must

decide, in the light of the statutory sentencing factors, 18 U.S.C. § 3553(a),

“whether, in its discretion, it will elect to impose the newly calculated sentence

under the amended guidelines or retain the original sentence.” United States v.

Bravo, 203 F.3d 778, 780–81 (11th Cir. 2000); see also U.S.S.G. § 1B1.10 cmt.

n.1(B). Any reduction must be “consistent with applicable policy statements

issued by the Sentencing Commission,” 18 U.S.C. § 3582(c)(2), which preclude a

“full resentencing of the defendant.” U.S.S.G. § 1B1.10(a)(3); see Bravo, 203

F.3d at 781. Section 1B1.10 counsels against, but does not prohibit, the reduction



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of a non-guideline sentence: “if the original term of imprisonment constituted a

non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United

States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be

appropriate.”

      Moore’s sentence is reasonable. The district court reviewed the

supplemental presentence investigation report and Moore’s response to the report,

which detailed his post-sentencing conduct. After due consideration of those

arguments, the district court reduced Moore’s sentence to 135 months of

imprisonment. See 28 U.S.C. § 3553(a); Gall, 128 S. Ct. at 597.

                                IV. CONCLUSION

      Moore’s reduced sentence is AFFIRMED.




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