                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                           FEBRUARY 18, 2010
                              No. 09-11735
                          Non-Argument Calendar                JOHN LEY
                                                                CLERK
                        ________________________

                 D. C. Docket No. 99-00012-CR-OC-10-GRJ

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

JERRY PARKER,
a.k.a. Monkey Nut,

                                                          Defendant-Appellant.

                        ________________________

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

                             (February 18, 2010)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
         Jerry Parker appeals the sentence imposed by the district court following its

grant of Parker’s motion for a reduced sentence, pursuant to 18 U.S.C. §

3582(c)(2) and Amendment 706 to the Sentencing Guidelines. Parker argues that:

(1) the district court abused its discretion when it resentenced him to 236 months’

imprisonment, despite the parties’ Joint Stipulation agreeing to a sentence of 210

months; (2) a sentence of 236 months is not a reasonable sentence; and (3) the

district court had the discretion to sentence Parker below the amended guideline

range.



                            I. Effect of the Joint Stipulation

         Parker first argues that the district court abused its discretion by amending

Parker’s sentence to 236 months instead of 210 months, given that, in the Joint

Stipulation filed by the parties, the Government did not object to Parker’s request

that his sentenced be reduced to 210 months. We find that the district court did not

abuse its discretion in reducing Parker’s sentence to 236 months instead of 210

months as requested by Parker in the Joint Stipulation.

         The district court, in its order directing a response concerning retroactive

application of the crack cocaine amendment as to Jerry Parker, encouraged the




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parties to confer regarding Parker’s eligibility for a sentence reduction. The court,

however, did not direct the parties to stipulate to a specific reduced sentence, and

in fact the Government did not stipulate that Parker’s sentence should be reduced

to the low end of the sentencing range. The Government merely did not oppose

Parker’s request for a low-end sentence. Nothing in the statute or caselaw

suggests that a post-sentencing stipulation of this nature could limit a district

court’s exercise of its discretion under § 3582(c)(2). See United States v. Vautier,

144 F.3d 756, 760 (11th Cir. 1998) (“Both the language of § 3582(c)(2) and this

circuit's precedent indicate that the sentencing court's power to reduce a sentence

is discretionary.”). Therefore, the court did not abuse its discretion in failing to

reduce Parker’s sentence to 210 months, as requested by Parker in the Joint

Stipulation.



                    II. Reasonableness of the Reduced Sentence

      Parker next argues that his reduced sentence of 236 months is not a

reasonable sentence. We review the reasonableness of a sentence imposed for

abuse of discretion. Gall v. United States, 552 U.S. 38, __, 125 S. Ct. 586, 597,

169 L.Ed.2d 445 (2007). The district court did not abuse its discretion by

reducing Parker’s sentence to the mid-point of the new, amended guidelines range.

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       “Under § 3582(c)(2), a district court has discretion to reduce a term of

imprisonment of an already incarcerated defendant if that defendant has been

sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” United States v.

Douglas, 576 F.3d 1216, 1218 (11th Cir. 2009) (quotation omitted). In

considering a § 3582(c)(2) motion, the district court must (1) “recalculate the

sentence under the amended guidelines,” and (2) “decide, in light of the § 3553(a)

factors and in its discretion, whether it will impose a new sentence within the

amended guidelines range or retain the original sentence.” Id. The court is not

required to articulate the applicability of each § 3553(a) factor as long as the

record demonstrates that the court took the factors into account. Id. at 1219.1

       Parker was originally sentenced to 294 months, a mid-range sentence under

the Sentencing Guidelines based on his offense level and criminal history.

Pursuant to Amendment 706, Parker was entitled to a reduction of his offense




       1
               “The factors to be considered under section 3553(a) include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed; (3) the kinds of sentences available; (4) the applicable sentencing range
under the guidelines; (5) any pertinent Sentencing Commission policy statement; (6) the need to
avoid unwarranted sentence disparities among defendants; and (7) the need to provide restitution
to victims.” United States v. Brown, 104 F.3d 1254, 1255 (11th Cir.1997).


                                                 4
level from 37 to 35. Given Parker’s criminal history, the appropriate sentence

range for his new offense level is 210 to 262 months. The district court once again

imposed a sentence in the middle of the relevant range, i.e. 236 months. Thus, in

setting Parker’s reduced sentence at the middle of the new sentencing range, the

district court took into account the mid-range determination made at the original

sentencing hearing. See Vautier, 144 F.3d at 760 (explaining that the district court

must determine the sentence it would have imposed, given the defendant's

amended guidelines range and holding all other guidelines findings made at the

original sentencing hearing constant).

      The record also demonstrates that, in reducing Parker’s sentence, the district

court took into account the Sentencing Guidelines and 18 U.S.C. § 3553. Parker

has not shown that the district court overlooked any material facts concerning his

individual suitability for a lower sentence. Therefore, the district court’s reduction

of Parker’s sentence to the middle, rather than the low end, of the new range was

not an abuse of discretion.



         III. Discretion to Sentence Below the Amended Guideline Range

      Finally, Parker argues that, under United States v. Booker, 543 U.S. 220

(2005) and Kimbrough v. United States, 552 U.S. 85 (2007), the district court had

                                          5
discretion to amend Parker’s sentence to below the amended guideline range. We

reject this argument based upon the Sentencing Guidelines and our prior decisions.

      Any reduction in a defendant’s sentence pursuant to § 3582(c)(2) must be

“consistent with applicable policy statements issues by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy statements, found in

§ 1B1.10, state that the court shall “ not reduce the defendant’s term of

imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term

that is less than the minimum of the amended guideline range.” U.S.S.G. §

1B1.10(b)(2)(A). Moreover, we have expressly held that, (1) “if the defendant’s

original sentence was within the then-applicable guidelines range, at resentencing,

the district court has no discretion to impose a sentence below the amended

guidelines ranges” and (2) Booker and Kimbrough “do not apply in § 3582(c)(2)

proceedings.” Douglas, 576 F.3d at 1219 (citing United States v. Melvin, 556

F.3d 1190, 1191-92 (11th Cir. 2009), cert. denied, 129 S. Ct. 2382 (2009).

      In the instant case, there is no doubt that Parker’s original sentence was

within the then-applicable guidelines range. Therefore, the district court had no

discretion to impose a sentence below the amended guideline range.

      AFFIRMED.2


      2
             Appellant’s request for oral argument is denied.

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