                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               June 5, 2007
                             No. 06-13051                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 03-14033-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

KYLE EBRITE WILLIAMS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 5, 2007)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:
      Kyle Ebrite Williams (“Williams”) appeals his 92-month sentence for

conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846.

Because the district court did not commit constitutional error by engaging in fact-

finding at sentencing, and Williams’s sentence is neither greater than necessary

under 18 U.S.C. § 3553(a) nor unreasonable, it is due to be affirmed. However, the

judgment contains a clerical error and to that extent it is VACATED and the case

is REMANDED with instructions that the district court correct the error.

                                I. BACKGROUND

      In a second superseding indictment in 2003, Williams was charged with:

(1) conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §

841(a)(1), pursuant to 21 U.S.C. § 846; and (2) being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1). After Williams pleaded not guilty, a jury

convicted him on the conspiracy count but hung on the firearm count.

      Before sentencing, a probation officer prepared a presentence investigation

report (“PSI”) setting Williams’s base offense level at 26, pursuant to U.S.S.G.

§ 2D1.1(a)(3) (2003), because his offense involved at least 5 grams of

methamphetamine. A two level increase was applied because a dangerous weapon

was possessed, under § 2D1.1(b)(1). Williams had eight criminal history points

based on several drug offenses, one petit theft offense, and one offense involving



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burglary and grand theft. He also had an array of unscored criminal conduct, and

had once been acquitted on the charge of possession of a firearm by a convicted

felon. With an adjusted offense level of 28, and a criminal history category of IV,

Williams’s resulting guidelines range was 110 to 137 months’ imprisonment. The

statutory maximum was 20 years’ imprisonment.

      The PSI also summarized the facts of the case. A search warrant obtained

based on information that Williams was selling firearms and methamphetamine

from a home led to the discovery of drug paraphernalia; a non-operational

methamphetamine production laboratory; five boxes of pseudo-ephederine

containing six empty blister packs, each of which contained twenty-four 60 mg

tablets (8.6 grams of pseudo-ephedrine); a pill bottle containing methamphetamine;

stains on the carpet, wall, and towels containing methamphetamine residue; a five

shot .38 Special Rossi revolver with five live rounds; and twelve rounds of

ammunition. After those present (Williams, Sharon Higgins, Beaudarick Cochise,

and Steven Schock) were arrested, Cochise was identified as the primary cook, and

Williams admitted that he owned the gun and had helped Cochise recover an “eight

ball” of methamphetamine after a drug spill. Higgins stated that Williams used and

sold methamphetamine and wanted to learn how to make methamphetamine and,

therefore, had helped Cochise bring the laboratory equipment to the house.



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Cochise stated that he had learned to make methamphetamine on his own and

either personally used what he made or gave samples to friends.

      According to the PSI, DEA chemist Eric Jordan testified at trial that, based

on the 8.6 grams of pseudo-ephedrine, a yield of 4.7 to 5.5 grams of

methamphetamine was to be expected. Cochise, who had entered a plea

agreement with the government and been sentenced to 37 months’ imprisonment,

stated that he could produce 6.5 to 7 grams of methamphetamine based on 8.6

grams of pseudo-ephedrine.

      With respect to Williams’s health, the PSI noted that he denied having a

substance abuse problem or needing counseling, although he admitted seeing a

psychologist and doctor for anxiety attacks and major recurrent depression and

being diagnosed with Trans Mandibular Joint Disorder. Although Williams lacked

a permanent residence before his arrest and was living with different friends, his

father indicated that he could live with him temporarily post-release, if he changed

his behavior.

      Williams raised two objections to the PSI. First, he objected to being held

accountable for 6.5 grams of methamphetamine based on Cochise’s assertions.

Second, he objected to the two-level enhancement for possession of a firearm

because the jury was unable to reach a verdict on the issue.



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      At the sentencing hearing held in early 2004, Williams reiterated his

objections to the PSI. The district court found by a preponderance of the evidence

that at least 4.7 grams were involved and reduced the base offense level from 26 to

24, but overruled Williams’s objection to the firearm enhancement. No new

objections were raised, and the district court adopted the PSI and found the

guideline range to be 92-115 months’ imprisonment. After noting that Williams’s

criminal history greatly enhanced the guideline range, the district court sentenced

him under a mandatory guidelines scheme to 92 months’ imprisonment.

      We originally affirmed Williams’s conviction and sentence in late 2004.

United States v. Williams, 125 F. App’x 981(11th Cir. 2004). However, the

Supreme Court granted certiorari, vacated our judgment, and remanded the case

pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). We, in

turn, affirmed Williams’s conviction again, but vacated and remanded Williams’s

sentence because of constitutional and statutory Booker error. Williams, 159 F.

App’x 880, *2-4 (11th Cir. 2005). We instructed the district court to resentence

Williams under advisory guidelines, but held that the 92-115 month guideline

range was correctly calculated, the firearm enhancement was properly applied, and

the district court did not commit plain error in using the theoretical yield of

methamphetamine to determine the drug amount at sentencing. Id. at *5-6.



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      Before resentencing, Williams objected again to the 4.7 gram amount

because it was based on a theoretical yield. He also argued that the two-level

enhancement for possession of a dangerous weapon was inappropriate because the

evidence was insufficient to prove that he possessed the firearm and the district

court made the relevant factual findings. At the resentencing on 12 May 2006,

Williams’s counsel acknowledged that our remand was technically limited to

issues arising under Booker, but he still objected to the district court’s fact-finding

regarding the drug amount and possession of a firearm. All objections were

overruled.

      Williams sought a sentence of 60 months’ imprisonment, arguing, inter alia,

that Cochise – who was the “cooker” – received 37 months’ imprisonment;

multiple individuals had access to the firearm; he had been a drug addict since age

16 and suffered from depression and anxiety; and his family was willing to help

him. Williams stated that he had participated in a 40-hour drug treatment program,

but was ineligible for a 500-hour program because he had more than 36 months left

on his sentence. The government responded that a 92-month sentence was

reasonable because Williams had entered a conspiracy to cook methamphetamine

and had an extensive criminal history.




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      After noting Williams’s significant criminal history, his propensity to be

around firearms, his failure to accept responsibility, and the requirement that it

consider all of the factors in 18 U.S.C. § 3553, the district court sentenced

Williams again to 92 months’ imprisonment and a three-year term of supervised

release. The district court also recommended that Williams be placed in a 500-

hour drug treatment program, but it did not address Williams’s medical problems.

Before adjourning, the court asked whether Williams objected to its findings of

fact or the manner in which sentence was pronounced; Williams renewed the

objections made at the beginning of the hearing.

      Judgment was entered on 23 May 2006, and Williams timely appealed.

                                   II. DISCUSSION

A.    Whether the district court unconstitutionally made findings at
      sentencing by a preponderance of the evidence

      Williams, acknowledging that current precedent holds otherwise, argues that

his offense level should not have reflected unindicted conduct that was not found

by a jury, namely the quantity of drugs and possession of a firearm. Williams

contends that, as a result, his constitutional rights to indictment, trial by jury, due

process and presumption of innocence were violated. The government responds

that the law of the case doctrine and the mandate rule bar Williams from

challenging the drug amount and enhancement for a firearm. Williams replies that

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he is raising a constitutional challenge for the purpose of further review or if our

pertinent caselaw changes.

      We review de novo whether the law of the case doctrine applies.

Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331

(11th Cir. 2005) (citation omitted). “This court reviews the district court's findings

of fact for clear error and its application of the sentencing guidelines to those facts

de novo.” United States v. Humber, 255 F.3d 1308, 1311 (11th Cir. 2001) (citation

omitted).

      “The law of the case doctrine, self-imposed by the courts, operates to create

efficiency, finality and obedience within the judicial system.” United States v.

Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (citation and quotation omitted).

“Under the law of the case doctrine, both the district court and the appellate court

are generally bound by a prior appellate decision of the same case.” Oladeinde v.

City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000) (citation and quotation

omitted). “While the law of the case does not bar litigation of issues ‘which might

have been decided but were not,’ . . . it does require a court to follow what has

been decided explicitly, as well as by necessary implication, in an earlier

proceeding.” In re Justice Oaks II, Ltd., 898 F.2d 1544, 1550 n.3 (11th Cir. 1990)

(internal citation and emphasis omitted). However, we may “reconsider an issue if



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the prior decision was clearly erroneous and would result in a manifest injustice.”

Oladeinde, 230 F.3d at 1288. “The mandate rule is simply an application of the

law of the case doctrine to a specific set of facts.” Litman v. Mass. Mut. Life Ins.

Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc). “If the appeals court issues a

specific mandate, the district court must obey: the mandate is not subject to

interpretation.” United States v. Mesa, 247 F.3d 1165, 1170 (11th Cir. 2001).

      Under an advisory guidelines scheme, the use of extra-verdict enhancements

is not unconstitutional. United States v. Rodriguez, 398 F.3d 1291, 1301-02 (11th

Cir. 2005). A district court may make factual findings at sentencing by a

preponderance of the evidence even if these facts were not charged in the

indictment, admitted by the defendant, or found by a jury. See United States v.

Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005) (per curiam).

      Because we have already held that the firearm enhancement was properly

applied and the district court did not commit plain error in using the theoretical

yield of methamphetamine to determine the drug amount at sentencing, and these

decisions were not clearly erroneous, the law of the case doctrine and the mandate

rule bar further consideration of these issues. Oladeinde, 230 F.3d at 1288;

Litman, 825 F.2d at 1511. Therefore, we reject Williams’s assertion that the

district court engaged in impermissible fact-finding.



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B.     Whether Williams’s 92-month sentence is greater than necessary under
       18 U.S.C. § 3553(a) or is otherwise unreasonable

       Williams argues on appeal that his sentence is unreasonable because it fails

to comply with the statutory requirement that a sentence be “sufficient, but not

greater than necessary.” Appellant’s Br. at 13-19. Additionally, Williams argues

that his role in the offense conduct consisted only of permitting another to make

methamphetamine in an apartment in which he was temporarily residing and

occasionally using the drugs. Finally, he contends that the court failed to consider

his history of depression and anxiety attacks or the family support available to him,

and overemphasized his criminal history and the presence of a firearm at the time

of his arrest.

       In his reply brief, Williams argues that whether his sentence is reasonable

should be based primarily on his role and culpability in the offense. He notes that

his involvement was less than Cochise’s, which he contends the government does

not dispute, yet Cochise received 37 months’ imprisonment and he received 92

months’ imprisonment. Williams also asserts that the sentence was unreasonable

in light of his limited role in the offense; the gun being present in a common area

available to others; a criminal history consisting of relatively low level offenses;

psychological problems; and a close nuclear family.




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      We review a sentence for reasonableness in light of the factors set forth in

18 U.S.C. § 3553(a). United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.

2005) (per curiam). We review only the final sentence for reasonableness, rather

than each individual decision made during the sentencing process. Id. at 1245.

Reasonableness review is “deferential” and “the party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in light of both

[the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005) (per curiam). Furthermore, although a sentence within

the guideline range is not per se reasonable, “when the district court imposes a

sentence within the advisory Guidelines range, we ordinarily will expect that

choice to be a reasonable one.” Id.

      A sentencing court is charged with imposing a sentence that is “sufficient,

but not greater than necessary” to reflect the seriousness of the offense, afford

deterrence, protect the public from further crimes of the defendant, and provide the

defendant with educational or vocational training, medical care or other treatment.

18 U.S.C. § 3553(a). Furthermore, under § 3553(a), a court shall consider, inter

alia, “ the nature and circumstances of the offense and the history and

characteristics of the defendant;” the types of sentences available; the sentencing

guidelines; and the need to avoid unwarranted sentence disparities among similar



                                          11
defendants. 18 U.S.C. § 3553(a). The district court need not recite a laundry list

of the § 3553(a) factors; some indication in the record that the court adequately and

properly considered the applicable advisory guidelines range and the § 3533(a)

sentencing factors is sufficient. United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005). Finally, “issues not raised by a defendant in his initial brief on appeal

are deemed waived.” United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir.

2004). Here, the statutory maximum was 20 years of imprisonment, and Williams

was sentenced at the lowest end of the applicable guideline range, which we have

already held was correctly calculated. See Williams, 159 F. App’x 880 at *5. The

sentence was also not greater than necessary to achieve the purposes of sentencing

or otherwise unreasonable in light of the § 3553(a) factors because the district

court noted Williams’s significant criminal history, propensity to be around

firearms, failure to accept responsibility, and the requirement that the § 3553(a)

factors be considered. Additionally, the district court recommended that he receive

drug treatment while incarcerated. Therefore, the record contains the requisite

indication that the court adequately and properly considered the applicable

advisory guidelines range and the § 3533(a) sentencing factors. See Scott, 426

F.3d at 1329. Accordingly, Williams has not met his burden of establishing that

his sentence was unreasonable. See Talley, 431 F.3d at 788.



                                          12
C.    Whether the judgment incorrectly identifies the statute of conviction

      The judgment and the second page of the PSI list the offense of conviction –

conspiracy to manufacture methamphetamine – as arising under 21 U.S.C. §

841(a)(1), which covers only the substantive offense of the manufacturing of

methamphetamine, but not conspiracy to manufacture methamphetamine, which is

prohibited by 21 U.S.C. § 846. Although not addressed by either party on appeal,

we “may sua sponte raise the issue of clerical errors in the judgment and remand

with instructions that the district court correct the errors.” United States v. Massey,

443 F.3d 814, 822 (11th Cir. 2006). We have remanded for correction of a clerical

error where the statute cited in the judgment and commitment order was incorrect.

United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (per curiam) and do

so here to correct the record.

                                 III. CONCLUSION

      Williams’ attack on his sentence must be rejected for the reasons set out

above. However, due to a clerical error, we VACATE and REMAND for

correction of same.

AFFIRMED IN PART; VACATED IN PART AND REMANDED WITH

INSTRUCTIONS.




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