[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10775 ELEVENTH CIRCUIT
JULY 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00065-CR-ORL-19-GJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR LEE AVERY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 22, 2009)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Arthur Lee Avery 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) and Amendment 706 of the Guidelines, which reduced base offense
levels applicable to crack cocaine. As acknowledged by Avery, his argument is
foreclosed by precedent. We recently held that neither United States v. Booker,
543 U.S. 220 (2005), nor Kimbrough v. United States,128 S.Ct. 558 (2007), apply
to § 3582(c)(2) proceedings. Melvin, 556 F.3d at 1192 (holding that “Booker and
Kimbrough do 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”). Therefore, the district court is bound by the limitations
imposed by § 1B1.10 and lacks the authority to sentence a defendant below the
amended guideline range. Accordingly, while Avery has preserved his Melvin
challenge, we must affirm his sentence.
AFFIRMED.
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