FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 8, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13480

Non-Argument Calendar

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D. C. Docket No. 03-00243-CR-T-23TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MONKILE M CLEMMONS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(April 8, 2009)

Before BIRCH, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Monkile M. Clemmons appeals the district court’s order granting his 18
U.S.C. § 3582 motion for a sentence reduction based on Amendment 706 to the

Sentencing Guidelines, but denying his request for a downward variance. On

appeal, Clemmons argues that the district court erred in finding that a 110-month

sentence, at the low end of the amended guideline range, was reasonable in his

case. He argues that he should have received a downward variance.

We review a district court’s decision whether to reduce a sentence under 18

U.S.C. § 3582(c)(2) for abuse of discretion. United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002). Section 3582(c)(2) gives federal courts the authority

to consider reducing the sentence “of a defendant who has been sentenced to a term

of imprisonment based on a sentencing range that has subsequently been lowered

by the Sentencing Commission.” We have held that a district court must follow a

two-step process in ruling on a § 3582(c)(2) motion. United States v. Bravo, 203

F.3d 778, 780 (11th Cir. 2000). First, the district court must recalculate the

defendant’s sentencing range based on the relevant amendment to the Sentencing

Guidelines. Id. None of the other guideline determinations made during the

original sentencing are changed. Id. Second, the court must decide whether to

retain the original sentence or to resentence the defendant based on the amended

guideline range. Id. at 781. In making this decision, the district court must

consider the 18 U.S.C. § 3553(a) factors. Id. These factors include, among other

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things: (1) the nature and circumstances of the offense, and the history and

characteristics of the defendant; (2) the need for deterrence; (3) the need to protect

the public from crimes committed by the defendant, and (4) the advisory guideline

range.

The Sentencing Guidelines contain a policy statement that instructs the

district court not to reduce a sentence below the new guideline range: “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 is less than the minimum of the amended

guidelines range determined under [§ 1B1.10(b)(1)].” U.S.S.G. § 1B1.10(b)(2)(A).

We have previously held that United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed. 2d 201 (2005), by itself, does not give a court the authority to

reduce a sentence under § 3582(c)(2). United States v. Moreno, 421 F.3d 1217,

1220-1221 (11th Cir. 2005). Similarly, we have held that Booker did not apply in

a case where Amendment 706 did not lower the defendant’s guideline range.

United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008). Finally, this court

has recently held that Booker and Kimbrough do not preclude Congress and the

Sentencing Commission from limiting a district court’s discretion in a § 3582

(c)(2) resentencing via § 1B1.10(b)(2)(A). United States v. Melvin, __ F.3d __ ,

2009 WL 236053 at *3 (11th Cir. Feb. 3, 2009). Therefore, the district court did

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not err when it refused to grant Clemmons’ request for a sentence lower than the

advisory guidelines range.

AFFIRMED.

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Clemmons’ request for oral argument is denied. 1

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