[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16834 ELEVENTH CIRCUIT
JUNE 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 90-08065-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY HATTEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2009)
Before CARNES, BARKETT and WILSON , Circuit Judges.
PER CURIAM:
Timothy Hatten appeals the sentence imposed by the district court following
the grant of his motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2).
Hatten’s § 3582(c)(2) motion was based on Amendments 505, 706, 711, and 715 to
the U.S. Sentencing Guidelines, which collectively reduced the base offense levels
applicable to crack cocaine offenses. On appeal, Hatten argues that the district
court erred in its application of § 3582(c)(2) when it refused to sentence him below
the minimum of the amended guideline range. Hatten asserts that, despite the
language of U.S.S.G. § 1B1.10, which constrains the court’s authority to go below
the amended range, that section, like all of the Guidelines, is merely advisory under
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
“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). 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 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 U.S.S.G. § 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
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guideline range.” U.S.S.G. § 1B1.10(b)(2)(A).
Hatten’s argument that he was entitled to a reduction below his amended
guideline range is foreclosed by precedent. We 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 reduce a
defendant’s sentence below the amended guideline range. See United States v.
Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009) (holding that Booker does 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.”),
petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664).
AFFIRMED
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