[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13481 JUNE 2, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00074-CR-T-27TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERMAINE B. MCAFFEE,
a.k.a. Man-man,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 2, 2009)
Before DUBINA, Chief Judge, TJOFLAT and MARCUS, Circuit Judges.
PER CURIAM:
Germaine McAffee appeals from the district court’s refusal to consider his
request pursuant to 18 U.S.C. § 3582(c)(2) for a further reduction to his sentence
below the amended guideline range. On appeal, McAffee argues that the district
court’s refusal to sentence him below the amended guideline range was error in
light of United States v. Booker, 543 U.S. 220 (2005). After careful review, we
affirm.
We review for abuse of discretion a district court’s denial of a defendant’s
request for a sentence reduction under 18 U.S.C. § 3582(c)(2). United States v.
Vautier, 144 F.3d 756, 759 n.3 (11th Cir. 1998). In the § 3582(c)(2) context, we
review de novo the district court’s legal conclusions regarding the scope of its
authority under the Sentencing Guidelines. United States v. Moore, 541 F.3d
1323, 1326 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct.
965 (2009), and cert. denied, 129 S. Ct. 1601 (2009). We also review de novo
questions of statutory interpretation. Id.
A district court may modify a term of imprisonment in the case of a
defendant who was 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, must be “consistent with applicable
policy statements issued by the Sentencing Commission.” Id. The applicable
policy statement provides 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
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is less than the minimum of the amended guideline range.” U.S.S.G.
§ 1B1.10(b)(2)(A). The policy statement does allow for one exception, see id., but
that exception is not relevant here.
On this record, it is unclear whether the district court declined to sentence
McAffee below the amended guideline range for discretionary reasons, or because
it concluded that it lacked the authority to do so. We need not resolve that issue,
however, because either way, McAffee’s argument is foreclosed by recent
precedent. In United States v. Melvin, 556 F.3d 1190, 1192-94 (11th Cir. 2009),
we 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. See id. (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). Accordingly, we affirm.
AFFIRMED.
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