           Case: 12-13520   Date Filed: 06/20/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13520
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:02-cr-00094-RV-MD-3



UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                 versus

LESLY ALEXIS,
a.k.a. "X",
a.k.a. X-Man,

                                                      Defendant-Appellant.
                       ________________________

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

                              (June 20, 2013)

Before CARNES, MARCUS, and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Lesly Alexis was convicted by a jury of conspiring to possess with intent to

distribute more than 5 kilograms of powder cocaine and more than 50 grams of

crack cocaine, in violation of 21 U.S.C. § 846. The presentence investigation

report concluded that Alexis was responsible for a total amount of 113.65

kilograms of crack cocaine, which made his base offense level 38. See United

States Sentencing Guidelines § 2D1.1(c)(1) (Nov. 2002). At his sentence hearing

in July 2003, Alexis challenged the drug quantity determination in the PSR,

arguing that it was not supported by the evidence. The district court overruled that

objection and incorporated the PSR’s drug quantity findings into Alexis’ sentence.

The court applied a 2-level role enhancement and a 2-level enhancement for

obstruction of justice, resulting in a total offense level of 42. Alexis’ criminal

history category was I, which resulted in a guidelines range of 360 months to life

imprisonment. The court sentenced Alexis to 384 months imprisonment.

       Alexis challenged the district court’s drug quantity determination on appeal

and we affirmed, holding that “the district court’s determination that Alexis was

responsible for in excess of 1.5 kilograms of cocaine base was not clearly

erroneous.” See United States v. Alexis, 125 F. App’x 980 (11th Cir. 2004)

(unpublished). 1


       1
         The United States Supreme Court granted certiorari and vacated and remanded for
further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
Alexis v. United States, 545 U.S. 1112, 125 S.Ct. 2927 (2005). On remand, we affirmed Alexis’
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       In 2011 Alexis, acting pro se, filed a motion to reduce his sentence under 18

U.S.C. § 3582(c)(2), contending that Amendment 750 to the sentencing guidelines

reduced his guidelines range. The district court denied that motion, concluding

that Alexis was not eligible for a sentence reduction under § 3582(c)(2) because

Amendment 750 did not lower his guidelines range. Alexis filed a motion for

reconsideration, again arguing that Amendment 750 reduced his guidelines range.

The district court denied that motion, noting that “[f]or purposes of Amendment

750, [the court] determine[s] that the actual quantity was more than 8.4 Kg, with

the base offense level remaining at Level 38 and a Total Offense Level of 42.”

Alexis now appeals the denial of his § 3582(c)(2) motion.

       Alexis contends that the district court impermissibly made new factual

findings during his § 3582(c)(2) proceeding when it determined that his guidelines

range was not actually lowered by Amendment 750 because he was held

responsible for more than 8.4 kilograms of crack. He asserts that at his sentence

hearing the district court found him responsible only for “1.5 kilograms or more.”

We disagree. At sentencing, the district court overruled Alexis’ objection to the

PSR’s conclusion that he was responsible for 113.65 kilograms of crack, noting

that “the quantities set out in the presentence investigation report are reasonable in

light of all the evidence, and [the court] find[s] that the evidence was consistent

conviction and sentence. United States v. Alexis, 146 F. App’x 469 (11th Cir. 2005)
(unpublished).
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and mutually corroborating, to the extent that sizable quantities certainly in excess

of one and a half kilograms or more of cocaine base required for guideline offense

level of 38 have been established . . . .” The court also expressly incorporated the

PSR, including its drug quantity findings, into Alexis’ sentence.

       In adopting the drug quantity determinations set out in the PSR, the district

court effectively found that Alexis was responsible for 113.65 kilograms of crack.

See United States v. Davis, 587 F.3d 1300, 1302 (11th Cir. 2009) (concluding that

“in adopting the facts in the PSI the sentencing court found Appellant was

responsible for more than 4.5 kilograms, even though the court did not expressly

specify the exact quantity in excess of 1.5 kilograms”). The court therefore did not

make an impermissible new finding of fact in Alexis’ § 3582(c)(2) proceeding

when it determined that he was responsible for more than 8.4 kilograms of crack.

See id. at 1303. 2

       AFFIRMED.


       2
         Alexis also contends that on direct appeal of his sentence, this Court “held” that he was
responsible for 1.5 kilograms of crack. That is incorrect. First, the opinion on which Alexis
relies was later vacated by the Supreme Court. Second, that decision held that “the district
court’s determination that Alexis was responsible for in excess of 1.5 kilograms of cocaine base
was not clearly erroneous.” See United States v. Alexis, 125 F. App’x 980 (11th Cir. 2004)
(unpublished) (emphasis added).
        Alexis further contends that on direct appeal, the government argued that he was
responsible for 1.5 kilograms of crack, and so the law of the case bars it from changing its
position now. That is also incorrect. On direct appeal, the government argued generally that
Alexis was responsible for over 1.5 kilograms of crack, which is not inconsistent with its later
position that he was responsible for 113.65 kilograms. Nor do government arguments alone
establish the law of the case.
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