Opinion
No. 09-10775 Non-Argument Calendar.
July 22, 2009.
Roberta Josephina Bodnar, U.S. Attorney's Office, Orlando, FL, for Plaintiff-Appellee.
Tracy N. Dacruz, Orlando, FL, for Defendants-Appellant.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 03-00065-CR-ORL-19-GJK.
Before BARRETT, MARCUS and ANDERSON, Circuit Judges.
Arthur Lee Avery appeals the sentence imposed by the district court following the 260 329 FEDERAL APPENDIX grant of his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 of the Guidelines, which reduced base offense levels applicable to crack cocaine. As acknowledged by Avery, his argument is foreclosed by precedent. We recently held that neither United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), nor Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), apply to § 3582(c)(2) proceedings. U.S. v. Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009) (holding that "Booker and Kimbrough do 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"). Therefore, the district court is bound by the limitations imposed by § 1B1.10 and lacks the authority to sentence a defendant below the amended guideline range. Accordingly, while Avery has preserved his Melvin challenge, we must affirm his sentence.