U.S. Court of Appeals for the Eleventh Circuit, 2009

United States v. Arthur Lee Avery

United States v. Arthur Lee Avery
U.S. Court of Appeals for the Eleventh Circuit · Decided July 22, 2009 · Barkett, Marcus, Anderson
329 F. App'x 259

United States v. Arthur Lee Avery

Opinion

PER CURIAM:

Arthur Lee Avery appeals the sentence imposed by the district court following the *260 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), nor Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), apply to § 3582(c)(2) proceedings. U.S. v. Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009) (holding that “Booker and Kim-brough 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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