                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APRIL 20, 2009
                             No. 08-11539                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 01-00002-CR-HL-2

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

TROY YEARBY,
a.k.a. Tubbs,

                                                         Defendant-Appellant.


                       ________________________

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

                              (April 20, 2009)

Before BLACK, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Troy Yearby, a federal prisoner convicted of crack-cocaine offenses, as well

as a firearm offense, was granted 18 U.S.C. § 3582(c)(2) relief, reducing his

sentence pursuant to Sentencing Guidelines Amendment 706, which lowered the

base offense levels applicable to crack cocaine offenses. He appeals, nevertheless,

arguing his presence was required at a hearing, and Booker1 and Kimbrough 2 allow

a reduction beyond the two-level reduction he received. He further argues that, by

not ruling on his Fed. R. Civ. P. 60(b)(4) motion to reopen his criminal case, the

district court granted all claims contained in his motion, and that this Court may in

the first instance resolve issues regarding alleged jurisdictional defects in the

indictment. After review, we affirm Yearby’s sentence.

      Legal questions are reviewed de novo. United States v. Pringle, 350 F.3d

1172, 1178 n.8 (11th Cir. 2003).

                                                 I.

      On appeal, Yearby argues he had the right to be heard to present mitigating

arguments at his resentencing pursuant to 18 U.S.C. § 3582(c). The Federal Rules

of Criminal Procedure provide a defendant need not be present for a proceeding

“involv[ing] the correction or reduction of sentence under [] 18 U.S.C. § 3582(c).”


      1
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
      2
          Kimbrough v. United States, 552 U.S.        , 128 S. Ct. 558 (2007).


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Fed. R. Crim. P. 43(b)(4). Yearby’s argument he was entitled to an oral hearing to

present mitigating arguments prior to his § 3582(c) resentencing fails. See Fed. R.

Crim. P. 43(b)(4); see also United States v. Taylor, 11 F.3d 149, 152 (11th Cir.

1994) (“there is a distinction between modifications of sentences and proceedings

that impose a new sentence after vacation of the original sentence”; “[i]n the

former instance, the defendant’s presence is not required”); Anderson v. United

States, 241 F. App’x 625, 629 (11th Cir. 2007) (“Under Federal Rule of Criminal

Procedure 43(b)(4), a defendant’s presence at a § 3582(c) sentence correction

proceeding is not required.”) (emphasis in original).

                                           II.

         At his original sentencing, Yearby’s offense level was 42 and his Guidelines

range was 480 months’ imprisonment. The sentencing court imposed the

Guidelines 480-month sentence. After Amendment 706, Yearby’s offense level

was reduced by two levels, yielding a new Guidelines range of 360 to 480 months’

imprisonment. After granting Yearby’s § 3582(c) motion, the district court

imposed a 360-month sentence, at the low end of the new, amended Guidelines

range.

         Yearby argues, pursuant to the Ninth Circuit case of United States v. Hicks,

472 F.3d 1167 (9th Cir. 2007), the district court was authorized, under Booker and



                                            3
Kimbrough, to sentence him below the re-calculated Guidelines range. He further

argues that the district court sat as a sentencing court when it lowered his sentence

pursuant to § 3582(c), and as such it was permitted to consider a 20:1 crack to

powder cocaine ratio.

      A “district court must make two distinct determinations before deciding

whether to reduce a defendant’s sentence under § 3582(c)(2).” United States v.

Vautier, 144 F.3d 756, 760 (11th Cir. 1998). First, the court must determine the

sentence it would have imposed, given the defendant’s amended guideline range

and holding all other guideline findings made at the original sentencing hearing

constant. Id.; United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Second,

the court must consider the factors in § 3553(a) and then determine, in its

discretion, whether to reduce the defendant’s sentence. Vautier, 144 F.3d at 760;

Bravo, 203 F.3d at 781; U.S.S.G. § 1B1.10, cmt. (n.1(B)(i)).

      “[A] sentencing adjustment undertaken pursuant to Section 3582(c)(2) does

not constitute a de novo resentencing. All original sentencing determinations

remain unchanged with the sole exception of the guideline range that has been

amended since the original sentencing.” United States v. Moreno, 421 F.3d 1217,

1220 (11th Cir. 2005) (quotations, alteration, and citation omitted).

      The applicable policy statements, moreover, provide that, unless the



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defendant was originally sentenced to a term that was less than the applicable

Guidelines range at the time of sentencing, a reduction pursuant to § 3582(c)(2)

shall not be less than the minimum of the amended Guidelines range. U.S.S.G.

§ 1B1.10(b)(2)(A)-(B), and cmt. (n.3). Yearby’s original 480-month sentence was

within the then-applicable Guidelines range of 480-months. Accordingly, the

district court was not permitted under § 1B1.10 to sentence Yearby to a term below

the amended Guidelines range of 360 to 480 months. Id. Therefore, the district

court complied with the law when it resentenced Yearby to 292 months’

imprisonment, the low end of the amended Guidelines range. See United States v.

Melvin, ___ F.3d ___, No. 08-13497, 2009 WL 236053, at *1 (11th Cir. Feb. 3,

2009) (holding Booker and Kimbrough do not apply to § 3582(c)(2) proceedings).

Based upon our holding in Melvin, Yearby’s argument that the district court should

have sentenced him below the amended Guidelines range is without merit.

                                          III.

      Finally, Yearby argues that by not ruling on his Rule 60(b)(4) motion to

reopen his case, the district court granted all claims contained in his motion. He

also argues that this Court in the first instance may resolve issues about

jurisdictional defects in the indictment. This argument is without merit.

Additionally, Yearby may not circumvent the requirements of 28 U.S.C. § 2255, as



                                           5
well as the provisions of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), by attacking his conviction in an appeal from the grant of

§ 3582(c)(2) relief.

                                         IV.

      The district court did not err by resentencing Yearby pursuant to 18 U.S.C.

§ 3582(c)(2) without holding a hearing at which he could argue in mitigation. The

district court also did not err by resentencing Yearby within the amended

Guidelines range. The district court’s silence with respect to the arguments made

in Yearby’s Rule 60(b)(4) motion did not have the effect of granting the relief

sought therein. Accordingly, we affirm Yearby’s sentence.

      AFFIRMED.




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