                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              April 13, 2009
                               No. 08-15889                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 94-05018-CR-5-LAC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

TONY KIMBRO,

                                                          Defendant-Appellant.


                         ________________________

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

                               (April 13, 2009)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Tony Kimbro appeals the denial of his motion to reduce his sentence. 18
U.S.C. § 3582(c)(2). Kimbro moved to reduce his sentence based on Amendment

706 to the Sentencing Guidelines. We affirm.

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

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). 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 range that has subsequently been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be

“consistent with applicable policy statements issued by the Sentencing

Commission.” Id. We have held that, “[w]here a retroactively applicable guideline

amendment reduces a defendant’s base offense level, but does not alter the

sentencing range upon which his or her sentence was based, § 3582(c)(2) does not

authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330

(11th Cir. 2008).

      Kimbro argues that, under United States v. Booker, 543 U.S. 220, 125 S. Ct.

738 (2005), the district court should have treated the Guidelines as advisory and

considered whether he was entitled to a reduced sentence in the light of the

statutory factors for sentencing, 18 U.S.C. § 3553(a), but that argument is

foreclosed by precedent. United States v. Melvin, 556 F.3d 1190, 1191–93 (11th



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Cir. 2009); United States v. Moreno, 421 F.3d 1217, 1220–21 (11th Cir. 2005).

Because Amendment 706 did not have the effect of lowering Kimbro’s guideline

range, he was ineligible for a sentence reduction. Moore, 541 F.3d at 1330. The

district court did not err in denying Kimbro’s motion.

      AFFIRMED.




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