          Case: 18-12946   Date Filed: 04/08/2019   Page: 1 of 11


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12946
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 5:12-cr-00005-MW-CJK-11



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

TROY ANTHONY COLEMAN,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 8, 2019)




Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Troy Coleman appeals the district court’s order vacating his renewed

criminal judgment and re-imposing the same total 154-month sentence, as

previously modified pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the

Sentencing Guidelines, imposed after he pled guilty to drug and firearm offenses.

On appeal, Coleman argues that the district court plainly erred because it based his

original sentence and subsequent § 3582(c)(2) sentencing reduction on a

miscalculated guideline range. Coleman specifically asserts that the district court

relied on an incorrect criminal history score that assigned nine criminal history

points for his three prior Florida youthful-offender convictions (“Drug

Convictions”) and three criminal history points for his prior witness-tampering

conviction (“Witness-Tampering Conviction”).

      We ordinarily review a district court’s interpretation of the sentencing

guidelines de novo and its factual determinations for clear error. See United States

v. Monzo, 852 F.3d 1343, 1348 (11th Cir. 2017). But we review sentencing cases

for harmless error when the sentence imposed would remain the same, regardless

of the alleged error. See Williams v. United States, 503 U.S. 193, 203 (1992)

(stating that harmless error is applied to sentencing cases and remand is

unnecessary “[i]f the party defending the sentence persuades the [reviewing court]


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that the district court would have imposed the same sentence absent the erroneous

factor”). “We review for abuse of discretion a district court’s decision not to

reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2)”. United States v. Jules, 595

F.3d 1239, 1241 (11th Cir. 2010). “The district court abuses its discretion if it fails

to apply the proper legal standard or to follow proper procedures in making its

determination.” Id. at 1242 (quotations omitted). We may affirm the district court

for any reason supported by the record, even if the district court did not consider or

rely on it. United States v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013).

      An argument raised for the first time on appeal is reviewed for plain error.

United States v. Clark, 274 F.3d 1325, 1326 (11th Cir. 2001). To correct an error

under plain-error review, there must be (1) an error, (2) that is plain, (3) that affects

substantial rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). If all

three conditions are met, we may correct the error only if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

McKinley, 732 F.3d 1291, 1296 (11th Cir. 2013). “[W]here the explicit language

of a statute or rule does not specifically resolve an issue, there can be no plain error

where there is no precedent from the Supreme Court or this Court directly

resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.

2003). In most cases, to affect substantial rights, an error must be prejudicial—that

is, it must have impacted the outcome of the district court proceedings. Olano, 507


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U.S. at 734. The Supreme Court has also said that, “in most cases . . . a defendant

sentenced under an incorrect Guidelines range should be able to rely on that fact to

show . . . an effect on [his] substantial rights.” Molina-Martinez v. United States,

136 S. Ct. 1338, 1349 (2016). Still, “[t]here may be instances when, despite

application of an erroneous Guidelines range, a reasonable probability of prejudice

does not exist.” Id. at 1346.

      In calculating a defendant’s criminal history category, the sentencing

guidelines provide, in relevant part, as follows:

      (a) Add 3 points for each prior sentence of imprisonment exceeding
          one year and one month.
      (b) Add 2 points for each prior sentence of imprisonment of at least
          sixty days not counted in (a).
      (c) Add 1 point for each prior sentence not counted in (a) or (b) . . . .

U.S.S.G. § 4A1.1(a)-(c). “The term ‘prior sentence’ means any sentence

previously imposed upon adjudication of guilt,” including by a plea of nolo

contendere. Id. § 4A1.2(a)(1). “The term ‘sentence of imprisonment’ means a

sentence of incarceration and refers to the maximum sentence imposed.” Id.

§ 4A1.2(b)(1) & comment. (n.2). A prior sentence of imprisonment exceeding 13

months imposed within 15 years of the offense of conviction, and any other prior

sentence of imprisonment imposed within 10 years of the offense of conviction, is

counted. See id. § 4A1.2(e)(1)-(2).




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      “Prior sentences are always counted separately if the sentences were

imposed for offenses that were separated by an intervening arrest (i.e., the

defendant is arrested for first offense prior to committing the second offense).” Id.

§ 4A1.2(a)(2). Where there is no intervening arrest, two prior sentences may be

counted as a single sentence if “the sentences resulted from offenses contained in

the same charging instrument” or “the sentences were imposed on the same day.”

Id. We have held that, in determining whether prior sentences are counted

separately, “the first question is always whether the underlying offenses are

separated by an intervening arrest. This inquiry is preliminary to any consideration

of consolidated sentencing . . . .” United States v. Hunter, 323 F.3d 1314, 1322-23

(11th Cir. 2003).

      Twelve criminal history points results in a criminal history category of V.

U.S.S.G. Ch.5, Pt.A (sentencing table). A total offense level of 29 and a criminal

history category of V results in a guideline range of 140 to 175 months’

imprisonment. Id. Nevertheless, the Guidelines provide that, “[w]here a

statutorily required minimum sentence is greater than the maximum of the

applicable guideline range, the statutorily required minimum sentence shall be the

guideline sentence.” U.S.S.G. §§ 5G1.1(b), 5G1.2, comment. (n.3(B)). In United

States v. Rice, we declined to address whether the district court erred in including a

drug-quantity enhancement, as the defendant’s sentencing range was based on the


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statutorily required mandatory minimum sentence and, therefore, was unaffected

by the alleged error. 43 F.3d 601, 608 n.12 (11th Cir. 1995).

      Under Florida law, defendants sentenced as youthful offenders participate in

a basic training program or “boot camp” lasting at least 120 days, not counting time

served prior to the program. Fla. Stat. § 958.045(1), (5)(c). “If the youthful

offender’s performance is satisfactory, the court shall issue an order modifying the

sentence imposed and place the offender on probation subject to the offender

successfully completing the remainder of the basic training program.”            Id.

§ 958.045(5)(c).

      We have not addressed in a binding decision how a Florida

youthful-offender sentence modified to probation upon successful completion of

boot camp affects a defendant’s criminal history score. We have held, however,

that youthful-offender convictions may count toward a defendant’s criminal history

score and sentencing enhancements. See United States v. Pinion, 4 F.3d 941, 945

(11th Cir. 1993). In United States v. Wilks, without addressing a modified sentence

of probation, we concluded that a defendant’s Florida youthful-offender

convictions qualified as predicate offenses warranting sentencing enhancements

under the guidelines. 464 F.3d 1240, 1242-43 (11th Cir. 2006). We noted that,

although Wilks’s treatment as a youthful offender had limited his maximum term

of imprisonment and the kind of facility in which he was incarcerated, he was


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nevertheless “treated as an adult criminal, and . . . sentenced to a term of

imprisonment exceeding one year and one month.” Id. at 1243.

      Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the

term of imprisonment of an already incarcerated defendant where the defendant

was sentenced “based on a sentencing range that has subsequently been lowered by

the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 782 provided

for a two-level reduction in the base offense levels for most drug quantities listed

in the Drug Quantity Table in U.S.S.G. § 2D1.1(c). U.S.S.G. App. C., Amend.

782 (2014). In relevant part, Amendment 782 lowered the sentencing guideline

range for drug offenses involving 5 to 15 kilograms of cocaine to a base level of

30, rather than 32. Id. Notwithstanding that, a court may not reduce a defendant’s

sentence if the retroactive amendment would not actually lower his guideline

range. See U.S.S.G. § 1B1.10, comment. (n.1(A)). The Guidelines specifically

state that a defendant is not eligible for a reduction if “the amendment does not

have the effect of lowering the defendant’s applicable guideline range because of

the operation of another guideline or statutory provision (e.g., a statutory

mandatory minimum term of imprisonment).” Id.

      The U.S. Supreme Court recently concluded that defendants whose

sentences were based on their mandatory minimums and their substantial

assistance -- not on the guideline range that was subsequently lowered -- are not


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eligible for a sentence reduction under § 3582(c)(2). United States v. Koons, 138

S. Ct. 1783, 1787-89 (2018).

       Under the law-of-the-case doctrine, district and appellate courts are

generally bound to follow a prior appellate decision in the same case. Thomas v.

United States, 572 F.3d 1300, 1303 (11th Cir. 2009); Westbrook v. Zant, 743 F.2d

764, 768 (11th Cir. 1984). In general, the law-of-the-case doctrine “operates to

preclude a reexamination of issues decided upon appeal, either by the district court

on remand or by the appellate court itself upon a subsequent appeal.” Westbrook,

743 F.2d at 768. We have recognized three exceptions to the law-of-the-case

doctrine: in cases where “(1) the evidence on a subsequent trial was substantially

different, (2) controlling authority has since made a contrary decision of the law

applicable to the issue, or (3) the previous decision was clearly erroneous and

would work a manifest injustice.” Id. at 768-69.

       First, Coleman cannot establish that the district court plainly erred in

assigning nine total criminal history points to his Drug Convictions.* Although

they do not speak directly to this issue, both the guidelines and our Court’s


       *
           Coleman attached to his initial brief a copy of the U.S. Probation Office’s letter that
assessed his eligibility for a sentence reduction, as it was omitted from the district court’s record.
As the parties and the district court relied on the letter, we supplement the record pursuant to Fed.
R. App. P. 10(e)(2)(C) with this document. See Fed. R. App. P. 10(e)(2)(C) (allowing appellate
courts to certify and forward a supplemental record if “anything material to either party is omitted
from . . . the record by error or accident”); see also Ross v. Kemp, 785 F.2d 1467, 1471-72 (11th
Cir. 1986) (supplementing the record under Rule 10(e) where the parties relied on deposition
testimony in their pleadings even though deposition was not filed with district court).
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precedent indicate that Coleman’s original five-year sentences for the 2007 Drug

Convictions were the operative sentences of imprisonment for guidelines-

calculation purposes. Because Coleman’s 5-year sentences on his Drug

Convictions were in excess of 13 months and imposed in 2007—within 15 years of

the underlying 2012 offense of conviction—each conviction resulted in 3 criminal

history points under the Guidelines. See U.S.S.G. §§ 4A1.1(a), 4A1.2(e)(1). As

no binding precedent holds that a Florida youthful-offender sentence does not

count toward a defendant’s criminal history score when the sentence is modified to

probation, the district court did not plainly err in assigning Coleman’s Drug

Convictions nine points.

          The district court plainly erred in assigning three criminal history points to

Coleman’s Witness-Tampering Conviction. As the state court imposed the

sentences for the Witness-Tampering Conviction and the Drug Convictions on the

same day, the district court should have treated these two prior sentences as a

single sentence. See U.S.S.G. § 4A1.2(a)(2). Therefore, the district court should

not have assigned points to Coleman’s Witness-Tampering Conviction: which

would have reduced his criminal history score from 15 points to 12 points,

resulting in a criminal history category of V. See U.S.S.G. Ch.5, Pt.A (sentencing

table).




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      Still, any error in the district court’s criminal history or guideline

calculations was harmless, as Coleman’s sentencing range was based on the

statutorily required mandatory minimum sentences. See Williams, 503 U.S. at 203;

Rice, 43 F.3d at 608 n.12. Although the district court referenced Coleman’s

criminal history category and total offense level, the sentencer stated explicitly that

it based Coleman’s advisory guideline range on the statutorily required mandatory

minimum terms of imprisonment.

      Second, although not raised by either party, the law-of-the-case doctrine

precludes us from considering Coleman’s argument that the district court

continued to rely on improper criminal history and guideline-range calculations

when it subsequently reduced his sentence pursuant to § 3582(c)(2) and

Amendment 782. As we previously ruled on Coleman’s argument that he should

have received a greater sentence reduction under § 3582(c)(2) because of his

incorrect criminal history score, it has become law of the case. See United States

v. Coleman, 679 F. App’x 969, 971 (11th Cir. 2017); Thomas, 572 F.3d at 1303.

Thus, to the extent that Coleman seeks to re-appeal the extent of his § 3582(c)(2)

sentence reduction, his appeal on this issue is foreclosed. See Coleman, 679

F. App’x at 971; Westbrook, 743 F.2d at 768.

      To the extent that Coleman argues that the district court’s reliance on an

incorrect criminal history score was not harmless because, if we correct the district


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court’s error and reduce his criminal history category from VI to V, the district

court would have further reduced his sentence under § 3582(c)(2), his argument

still fails: as Coleman cannot establish that the district court’s error affected his

substantial rights. See Molina-Martinez, 136 S. Ct. at 1346. Even if the district

court were to reconsider the extent of his sentence reduction, pursuant to the

Supreme Court’s decision in Koons, Coleman would be ineligible for a reduction

under § 3582(c)(2) because the district court based his total sentence on the

statutorily required mandatory minimums and his substantial assistance to the

government and did not consider the guideline range subsequently lowered by

Amendment 782. See Koons, 138 S. Ct. at 1787-89. Accordingly, we affirm

Coleman’s re-imposed total 154-month sentence.

      AFFIRMED.




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