[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12321 ELEVENTH CIRCUIT
FEBRUARY 9, 2009
_____________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 92-04013-CR-4-WS-WCS
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
MARLIN DAVIS,
a.k.a. Marlin Oliver,
a.k.a. Boliver D. Oliver,
a.k.a. Marlin Dalton,
a.k.a. Dalton Oliver,
a.k.a. Darryl Dalton,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 9, 2009)
Before BARKETT, PRYOR and FARRIS,* Circuit Judges.
PER CURIAM:
Marlin Davis appeals from the order reducing his sentence pursuant to 18
U.S.C. §3582(c)(2) and Amendment 706 to the United States Sentencing
Guidelines.1 In filing his §3582(c)(2) motion, Davis argued that under Blakely v.
Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220
(2005), the district court could consider evidence to depart below the amended
Guideline range in resentencing, as this range was only advisory. The district court
disagreed, granting only the two-level reduction in accordance with Amendment
706, and resentencing Davis to the minimum term permitted by the amended
Guideline range.
We affirm based on United States v. Melvin, No. 08-13497, 2009 WL
236053 (11th Cir. Feb. 3, 2009).
AFFIRMED.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
1
Amendment 706, which became retroactive as of March 3, 2008, U.S.S.G. App. C,
Amend. 713 (Supp. May 1, 2008), reduced by two the base offense levels in crack cocaine
sentences calculated pursuant to U.S.S.G. § 2D1.1(c).
2