                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-16834                ELEVENTH CIRCUIT
                                                               JUNE 8, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                      D. C. Docket No. 90-08065-CR-JIC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

TIMOTHY HATTEN,

                                                           Defendant-Appellant.


                         ________________________

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

                                 (June 8, 2009)

Before CARNES, BARKETT and WILSON , Circuit Judges.

PER CURIAM:

     Timothy Hatten appeals the sentence imposed by the district court following
the grant of his motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2).

Hatten’s § 3582(c)(2) motion was based on Amendments 505, 706, 711, and 715 to

the U.S. Sentencing Guidelines, which collectively reduced the base offense levels

applicable to crack cocaine offenses. On appeal, Hatten argues that the district

court erred in its application of § 3582(c)(2) when it refused to sentence him below

the minimum of the amended guideline range. Hatten asserts that, despite the

language of U.S.S.G. § 1B1.10, which constrains the court’s authority to go below

the amended range, that section, like all of the Guidelines, is merely advisory under

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

      “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 based on a sentencing

range that subsequently has 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. The

applicable policy statements, found in U.S.S.G. § 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



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guideline range.” U.S.S.G. § 1B1.10(b)(2)(A).

      Hatten’s argument that he was entitled to a reduction below his amended

guideline range is foreclosed by precedent. We recently held that Booker does not

apply to § 3582(c)(2) proceedings, and thus, the district court is bound by the

limitations imposed by § 1B1.10 and does not have the authority to reduce a

defendant’s sentence below the amended guideline range. See United States v.

Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009) (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.”),

petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664).

      AFFIRMED




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