[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-12321 ELEVENTH CIRCUIT FEBRUARY 9, 2009 _____________________ THOMAS K. KAHN CLERK D.C. Docket No. 92-04013-CR-4-WS-WCS

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

MARLIN DAVIS, a.k.a. Marlin Oliver, a.k.a. Boliver D. Oliver, a.k.a. Marlin Dalton, a.k.a. Dalton Oliver, a.k.a. Darryl Dalton,

Defendant–Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida _________________________

(February 9, 2009) Before BARKETT, PRYOR and FARRIS,* Circuit Judges.

PER CURIAM:

Marlin Davis appeals from the order reducing his sentence pursuant to 18

U.S.C. §3582(c)(2) and Amendment 706 to the United States Sentencing

Guidelines.1 In filing his §3582(c)(2) motion, Davis argued that under Blakely v.

Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220

(2005), the district court could consider evidence to depart below the amended

Guideline range in resentencing, as this range was only advisory. The district court

disagreed, granting only the two-level reduction in accordance with Amendment

706, and resentencing Davis to the minimum term permitted by the amended

Guideline range.

We affirm based on United States v. Melvin, No. 08-13497, 2009 WL 236053 (11th Cir. Feb. 3, 2009).

AFFIRMED.

* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation. 1 Amendment 706, which became retroactive as of March 3, 2008, U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008), reduced by two the base offense levels in crack cocaine sentences calculated pursuant to U.S.S.G. § 2D1.1(c).

2