FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 31, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15487

Non-Argument Calendar

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D. C. Docket No. 96-00042-CR-3-RV

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE ALLEN BIGGINS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(March 31, 2010)

Before DUBINA, Chief Judge, BARKETT and FAY, Circuit Judges.

PER CURIAM:
Appellant Wayne Allen Biggins appeals pro se 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), based on Amendment 706 to the sentencing guidelines,

which reduced the base offense levels applicable to certain crack cocaine offenses.

Biggins argues that the district court erred (1) in calculating the cocaine base

quantity at his original sentencing hearing, (2) by failing to further reduce his

sentence under Booker and Kimbrough, and (3) by failing to provide him with a

revised Pre-sentence Investigation Report (“PSI”). Having found no error, we

affirm.

On appeal, Biggins first argues that the sentencing court erred in its initial

finding that he possessed more than 1.5 kilograms of cocaine base, and, therefore,

his sentence is unconstitutional under the Eighth Amendment, Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and United States

v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Because

Biggins did not raise the issue to the district court, we review only for plain error.

United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). To prove plain

error, a defendant must show: (1) error, (2) that is plain, and (3) that affects

substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007).

A proceeding under § 3582(c)(2) “does not constitute a de novo

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resentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2001).

Indeed, we have held that all original sentencing determinations remain unchanged

with the sole exception of the guideline range that has been amended since the

original sentencing.” Id. (emphasis in original). Therefore, we conclude that the

district court did not plainly err when it declined to reconsider findings made at the

original sentencing hearing.

Next, Biggins argues the district court erred in its application of § 3582(c)(2)

because it applied the amended guideline range in a mandatory fashion in violation

of Booker and Kimbrough. Biggins also argues that the court erred by not

shortening his sentence beyond the two-level reduction in offense level.

The policy statement generally applicable to § 3582(c)(2) proceedings

instructs the district court not to reduce a sentence below the newly calculated

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. Sentencing Guidelines Manual § 1B1.10(b)(2)(A) (2008). In United States v.

Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009), cert. denied, 129 S. Ct. 2382

(2009), we upheld the sentencing guideline’s restriction and concluded that neither

Booker nor Kimbrough “prohibit the limitations on a judge’s discretion in reducing

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a sentence imposed by § 3582(c)(2) and the applicable policy statement by the

Sentencing Commission.” Therefore, we conclude that the district court did not

err by sentencing Biggins to a sentence at the top of the newly calculated guideline

range.

Finally, Biggins argues that the district court erred when it failed to provide

him with a revised PSI. He contends that he was prejudiced by his inability to

object to the revised PSI prior to resentencing, and he challenges the district

court’s procedure in adjudicating his motion. Because there is no evidence that the

probation office provided the district court with a new or revised PSI, Biggins’s

claim is without merit.

AFFIRMED.

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