[DO NOT PUBLISH]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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