[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15204 ELEVENTH CIRCUIT
MAY 6, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00065-CR-ORL-19JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY LAVEL THOMAS,
a.k.a. Sticks,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 6, 2009)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Gary Lavel Thomas appeals the sentence imposed by the district court
following the grant of his pro se motion for a reduced sentence, 18 U.S.C.
§ 3582(c)(2). After a thorough review of the record, we affirm.
Thomas pleaded guilty to conspiracy to possess with intent to distribute
crack cocaine and was sentenced to 262 months’ imprisonment. He subsequently
filed a motion for a reduction in sentence, § 3582(c), based on Amendment 706 to
the U.S. Sentencing Guidelines, which reduced the base offense levels applicable
to crack cocaine offenses. The district court granted the motion, reduced the
offense level by 2 and determined the new guidelines range to be 210 to 262
months’ imprisonment. The court sentenced Thomas to 210 months’
imprisonment.
“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).
Thomas argues that the district court erred in its application of § 3582(c)(2)
when it resentenced him without consideration of United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and refused to sentence him
below the minimum of the amended guideline range.
A district court may modify a term of imprisonment in the case of a
defendant who was sentenced based on a sentencing range that subsequently has
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been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any
reduction, however, must be “consistent with applicable policy statements issued
by the Sentencing Commission.” Id. The applicable policy statements, found in
§ 1B1.10, state 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.G.
§ 1B1.10(b)(2)(A).
Thomas’s arguments are foreclosed by precedent. This court recently held
that Booker does not apply to § 3582(c)(2) proceedings, and thus, the district court
is bound by the limitations imposed by § 1B1.10 and does not have the authority to
sentence below the amended guideline range. United States v. Melvin, 556 F.3d
1190, 1192-93 (11th Cir. 2009), petition for cert. filed, (U.S. Feb. 10, 2009) (No.
08-8664); see also United States v. Webb, manuscript op. at 6-7 (No. 08-13405)
(11th Cir. Apr. 13, 2009). Accordingly, we affirm.
AFFIRMED
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