                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-13352                  MARCH 9, 2009
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                  D. C. Docket No. 05-80077-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

FREDERICK DEAN,

                                                         Defendant-Appellant.


                       ________________________

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

                              (March 9, 2009)


Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Frederick Dean appeals the district court’s order granting his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 706 to the

Sentencing Guidelines but implicitly denying his request for a downward variance.

On appeal, Dean argues the district court abused its discretion in denying his

request for a downward variance. Specifically, Dean notes the Supreme Court has

held courts can take the disparity in sentences between crack cocaine and powder

cocaine offenses into consideration when determining a defendant’s sentence. See

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

not take that factor into consideration, Dean asks this Court to instruct the district

court to hold an evidentiary hearing on whether he is entitled to a downward

variance.

      We review a district court’s decision to deny a motion for a reduction in

sentence under 18 U.S.C. § 3582(c)(2), in whole or in part, for abuse of discretion.

United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). This Court

reviews de novo the district court’s conclusions about the scope of its legal

authority. United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).

      Section 3582(c)(2) of Title 18 gives federal courts the authority to consider

reducing the sentence “of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by



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the Sentencing Commission.” Any such reduction, however, must be consistent

with the applicable Guidelines’ policy statements. See 18 U.S.C. § 3582(c)(2).

The applicable policy statement here is U.S.S.G. § 1B1.10, which pertains to

Guidelines amendments that may be applied retroactively, including Amendment

706. Section 1B1.10 provides, in cases in which the defendant received a

within-Guidelines sentence at his original sentencing, a reduction pursuant to §

3582(c)(2) shall not be less than the minimum of the amended Guidelines range. §

1B1.10(b)(2)(A)-(B) & cmt. n.3.

      We recently addressed whether United States v. Booker, 125 S. Ct. 738

(2005), and Kimbrough prohibit Congress or the Sentencing Commission from

limiting the discretion of a district court in reducing a sentence under 18 U.S.C.

§ 3582(c)(2). See United States v. Melvin, ___ F.3d ___, No. 08-13497, 2009 WL

236053, at *1 (11th Cir. Feb. 3, 2009). Concluding Booker and Kimbrough do not

apply to § 3582(c)(2) proceedings, we held a district court is bound by the

limitations on its discretion imposed by § 3582(c)(2) and the applicable policy

statements by the Sentencing Commission. Id.

      The applicable policy statement here, § 1B1.10, and its commentary

preclude a district court from reducing a defendant’s sentence below the amended

Guidelines range if the defendant’s original sentence fell within the then-applicable



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Guidelines range. Dean’s original sentence was within the Guidelines range.

Accordingly, the district court was not permitted under § 1B1.10 to sentence Dean

to a term below the amended Guidelines range. Based upon our holding in Melvin,

Dean’s argument that the district court should have sentenced him below the

amended Guidelines range is without merit.

      AFFIRMED.




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