[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11875 ELEVENTH CIRCUIT
AUGUST 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 98-00049-CR03-RV-MD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNEST SOLOMON HICKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 10, 2009)
Before DUBINA, Chief Judge, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Ernest Solomon Hicks appeals the district court's denial of his
motion for a sentence reduction, filed pursuant to 18 U.S.C. § 3582(c)(2). Hicks's
§ 3582(c)(2) motion was based on Amendment 706 to the United States
Sentencing Guidelines, which reduced base offense levels applicable to crack
cocaine offenses. On appeal, Hicks argues that United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and Kimbrough v. United States,
552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007), authorize a district court, in
a § 3582(c)(2) proceeding, to (1) reduce the defendant’s offense level by more than
two levels, and (2) reduce the sentence of a career offender. He acknowledges that
his argument is foreclosed by precedent, including United States v. Moore, 541
F.3d 1323 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct.
965 (2009), and cert. denied, 129 S. Ct. 1601 (2009), and United States v. Melvin,
556 F.3d 1190 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009). However, he
contends that Moore and Melvin were wrongly decided and explains that he
brought this appeal to preserve his arguments for the future.
“In a § 3582(c)(2) proceeding, we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines”
as well as all “questions of statutory interpretation.” Moore, 541 F.3d at 1326
(quotation marks and citations omitted).
Under § 3582(c)(2), a district court may reduce the sentence of a defendant
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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).
In Moore, we held that, if the defendant was sentenced as a career offender
under U.S.S.G. § 4B1.1 and the range was not affected by U.S.S.G. § 2D1.1, then
his sentence is not “based on a sentencing range that has subsequently been
lowered.” 541 F.3d at 1327-28. In Melvin, we rejected the argument that Booker
and Kimbrough prohibit limitations on a judge’s discretion in a § 3582(c)(2)
proceeding. 556 F.3d at 1192. We have also held that a defendant is not entitled
to a § 3582(c)(2) reduction by virtue of the advisory nature of the guidelines.
United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008), cert denied, 129 S.
Ct. 1657 (2009).
As Hicks acknowledges, his arguments are foreclosed by binding precedent.
Accordingly, we affirm the district court’s order denying Hicks’s § 3582(c)(2)
motion.
AFFIRMED.
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