                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-11221         ELEVENTH CIRCUIT
                                   Non-Argument Calendar      OCTOBER 5, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 8:03-cr-00485-EAK-MAP-1

UNITED STATES OF AMERICA,

lllllllllllllllllll                                                ll Plaintiff-Appellee,


                                            versus


JOHN GERONE THOMAS,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                      (October 5, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         John Gerone Thomas appeals his 120-month sentence, which the district
court imposed after granting his 18 U.S.C. § 3582(c)(2) motion for a sentence

reduction. Thomas argues that the district court erred by (1) failing to reduce his

sentence below the applicable statutory minimum penalty, (2) failing to reduce his

sentence below the amended guideline range, and (3) failing to consider the 18

U.S.C. § 3553(a) sentencing factors when calculating a reasonable sentence. For

the reasons set forth below, we affirm.

                                          I.

      In 2004, Thomas pled guilty to possession with intent to distribute 50 grams

or more of crack cocaine. The presentence investigation report set Thomas’s base

offense level at 38, under U.S.S.G. § 2D1.1(c)(1), because Thomas’s offense

involved 4 kilograms of crack cocaine. Thomas was subject to a total offense

level of 37, a criminal history category of III, and a guideline imprisonment range

of 262 to 327 months. Pursuant to 21 U.S.C. § 841(b)(1)(A), Thomas was subject

to a mandatory minimum of 10 years’ imprisonment.

      Prior to sentencing, the government filed a U.S.S.G. § 5K1.1 motion for a

two-level reduction in Thomas’s base offense level, based on Thomas’s substantial

assistance. At Thomas’s sentencing hearing, the government orally amended its

§ 5K1.1 motion to recommend a four-level, rather than a two-level, departure.

The court granted the government’s § 5K1.1 motion for a 4-level departure and

                                          2
also departed an additional 2 levels, reducing Thomas’s offense level to 31 and his

guideline imprisonment range to 135 to 168 months. The court sentenced Thomas

to 135 months’ imprisonment, to be followed by 5 years’ supervised release.

      In January 2009, the district court, sua sponte, ordered the probation office

to complete a supplemental report addressing whether Thomas was eligible for a

sentence reduction under § 3582(c)(2) and Amendment 706 to the Sentencing

Guidelines.

      The government acknowledged that Thomas was eligible for a § 3582(c)(2)

reduction, because Amendment 706 reduced his original offense level of 37 to 35,

and his original guideline imprisonment range of 262 to 327 months to 210 to 262

months. It asserted that the court should recalculate Thomas’s total offense level,

then apply a departure comparable to the departure Thomas originally received as

a result of the § 5K1.1 motion. The government noted that, although such a

departure would result in an amended guideline range of 108 to 135 months,

Thomas was subject to a statutory mandatory minimum of 10 years’ (120 months)

imprisonment.

      Thomas responded that, under Booker1 and Kimbrough,2 the district court


      1
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
      2
          United States v. Kimbrough, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

                                                3
had discretion to impose a sentence below the low end of the amended guideline

range.

         The district court reduced Thomas’s sentence to 100 months’ imprisonment.

It noted that Thomas was subject to an amended total offense level of 35 and an

amended guideline imprisonment range of 210-262 months. The court explained

that Thomas’s original sentence resulted from a downward departure, and that the

100-month sentence resulted from a comparable departure from the amended

guideline range.

         The government appealed Thomas’s 100-month sentence, arguing that the

district court lacked discretion to depart below the 10-year mandatory minimum

sentence required by 21 U.S.C. § 841(b)(1)(A)(iii). We vacated Thomas’s

100-month sentence and remanded for resentencing, holding that, pursuant to

United States v. Williams, 549 F.3d 1337, 1338-39 (11th Cir. 2008), “the district

court was not authorized to reduce Thomas’s sentence below the applicable

[120-month] statutory minimum, even though the government filed a § 5K1.1

motion at the original sentencing proceeding.” See United States v. Thomas, 360

Fed.Appx. 4, 7 (11th Cir. 2010). Following the remand, the district court

sentenced Thomas to 120 months’ imprisonment.




                                          4
                                         II.

      A.     Failure to Impose Sentence Below Mandatory Minimum Term of
             Imprisonment

      “We review de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). Under the law of the case doctrine, we are bound by

findings of fact and conclusions of law made on a prior appeal of the same case

unless (1) a subsequent trial produces substantially different evidence, (2)

controlling authority has since made contrary decisions of law applicable to an

issue, or (3) the prior decision was clearly erroneous and could work manifest

injustice. United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).

      Thomas has failed to show that the law of the case doctrine does not apply,

because he has not established that one of the three exceptions set forth in Stinson

applies. First, no trial was held after we issued our first Thomas decision. Second,

Thomas has failed to cite subsequent controlling authority that contradicts

Thomas. Instead, he simply argues that Williams, a case decided before Thomas,

does not apply to his case. Finally, as explained below, Thomas has failed to show

that our decision in Thomas was clearly erroneous.



                                          5
      In Thomas, we relied on Williams and held that “the district court was not

authorized to reduce Thomas’s sentence below the applicable [120-month]

statutory minimum, even though the government filed a § 5K1.1 motion at the

original sentencing proceeding.” See Thomas, 360 Fed.Appx. at 7. In Williams,

we held, in the context of a § 3582(c)(2) proceeding, that “a downward departure

from [a] mandatory minimum does not constitute a waiver or dispensing” of the

mandatory minimum. See Williams, 549 F.3d at 1341. Although the defendant in

Williams was ineligible for a § 3582(c)(2) reduction because, unlike Thomas, he

was originally sentenced below the applicable statutory minimum, Williams’s

holding that a district court is bound by a statutory minimum penalty, even if a

downward departure was originally granted, applies with equal force to Thomas’s

case. See Williams, 549 F.3d at 1340-41. Thus, our holding in Thomas is not

clearly erroneous in light of Williams, and the law of the case doctrine applies.

See Stinson, 97 F.3d at 469. Accordingly, Thomas is bound by our prior

determination that the district court lacked authority to sentence him below the

120-month statutory minimum term of imprisonment.

      B.     Failure to Impose Sentence Below Amended Guideline Range

      Our precedent, as well as recent Supreme Court precedent, forecloses

Thomas’s argument that Booker and Kimbrough apply to § 3582(c)(2) proceedings

                                          6
and permit courts to sentence a defendant below the amended guideline range. See

United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.), cert. denied, 129

S.Ct. 2382 (2009) (holding that Booker and Kimbrough apply to original

sentencing proceedings and do “not address motions to reduce a sentence under

§ 3582(c)(2)); Dillon v. United States, 560 U.S. __, 130 S.Ct. 2683, 2692, __

L.Ed.2d __ (2010) (holding that Booker does not apply to § 3582(c)(2)

proceedings, because such proceedings “do not implicate the interests identified in

Booker”). Moreover, as noted above, the district court lacked discretion to

sentence Thomas below the 120-month statutory minimum. Accordingly, the

district court did not err by failing to sentence Thomas below the amended

guideline range.

      C.     Failure to Consider 18 U.S.C. § 3553(a) Sentencing Factors

      Any error in failing to consider the § 3553(a) sentencing factors is harmless

because, as noted above, Thomas received the lowest sentence the district court

could impose. See United States v. Arevalo-Juarez, 464 F.3d 1246, 1252 (11th

Cir. 2006) (holding that we will “affirm for harmless error in the sentencing

context if . . . the sentencing court would have likely sentenced the defendant in

the same way absent the error”). Accordingly, we affirm Thomas’s 120-month

sentence.

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AFFIRMED.




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