                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-15345                ELEVENTH CIRCUIT
                                                             JUNE 4, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                    D. C. Docket No. 98-00110-CR-2-N

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CHARLES PAYNE,

                                                         Defendant-Appellant.


                       ________________________

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

                              (June 4, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
      Charles Payne is a federal prisoner who was convicted of crack cocaine

offenses. In this pro se appeal, he challenges the district court’s reduction of his

sentence pursuant to 18 U.S.C. § 3582(c)(2). The § 3582(c)(2) reduction was

based on Amendment 706, which reduced Payne’s base offense level from 32 to

30. With his category V criminal history, Payne’s reduced sentence was 151

months’ imprisonment, the minimum of the amended Sentencing Guidelines range.

      On appeal, Payne asserts that the district court should have applied United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and Kimbrough v. United

States, 128 S. Ct. 558 (2007), at resentencing. Specifically, he argues that his

reduced sentence was unreasonable because the district court did not explicitly

acknowledge that the Guidelines or the 18 U.S.C. § 3553(a) factors were advisory.

He also argues that he should have had the opportunity to challenge the legality of

considering unindicted drug quantities in his offense conduct. He further argues

that his sentence should have conformed to the statutory terms of 21 U.S.C.

§ 841(b)(1)(C) because the indictment did not specify any drug quantity, and

attributing any drug quantity not found by the jury would be unconstitutional.

      “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) (per curiam). A district court may modify a term of



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imprisonment “in the case of a defendant who has been 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, should be “consistent with applicable policy statements issued by the

Sentencing Commission.” Id. § 3582(c)(2). The applicable policy statement

indicates 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 ENTENCING G UIDELINES

M ANUAL § 1B1.10(b)(2)(A) (2008).

      Payne’s arguments are foreclosed by our precedent. We have concluded that

“Booker and Kimbrough do not apply to § 3582(c)(2) proceedings.” United States

v Melvin, 556 F.3d 1190, 1190 (11th Cir. 2009) (per curiam), petition for cert.

filed, (U.S. Feb. 10, 2009) (No. 08-8664). We have further held that “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. In light of our

holding in Melvin, Payne’s challenges based on Booker and Kimbrough to his

reduced sentence are meritless. Under the Guidelines, Payne’s sentence cannot be

reduced below the level to which the district court has already reduced it.

      AFFIRMED.



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