                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             OCT 5, 2006
                              No. 05-15578                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 98-14003-CR-KLR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CHRISTOPHER R. BROWN,

                                                          Defendant-Appellant.


                        ________________________

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

                              (October 5, 2006)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Christopher R. Brown appeals his conviction and 110-month sentence for
possession with intent to distribute crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). On appeal, Brown argues that (1) the district court plainly erred when

it failed to consider the sentencing disparity resulting from the 100:1 crack-to-

cocaine ratio; (2) the district court erred by sentencing him based on a drug

quantity that was not alleged in the indictment or found by the jury; and (3) his

conviction should be vacated because it may have been based on a non-existent

crime, namely that he aided and abetted himself.

      After review, we conclude that none of Brown’s arguments has any merit.

First, Brown’s argument concerning the 100:1 crack-to-cocaine ratio already has

been rejected by this Court. In United States v. Williams, this Court held that the

district court could not permissibly depart from the correctly calculated Guidelines

range based on its disagreement with the relative sentencing disparities resulting

from the 100-to-1 ratio. 456 F.3d 1353, 1364-69 (11th Cir. 2006). Because the

sentencing disparity, by itself, is not a proper basis for such a departure, the district

court did not plainly err by failing to explicitly consider the disparity when

determining what sentence to impose.

      Second, so long as a district court applies the Guidelines as advisory, which

the district court did in this case, a district court is not precluded from making

additional factual findings, under a preponderance-of-the-evidence standard, that



                                            2
go beyond the facts found by the jury. See United States v. Chau, 426 F.3d 1318,

1323-24 (11th Cir. 2005). Brown concedes as much in his reply brief when he

notes that he is raising this issue in order to preserve it for possible future review.

       Finally, Brown’s challenge to his conviction is precluded by the law-of-the-

case doctrine. See Luckey v. Miller, 929 F.2d 618, 621 (11th Cir. 1991) (stating

that “findings of fact and conclusions of law by an appellate court are generally

binding in all subsequent proceedings in the same case in the trial court or on a

later appeal” (quotation marks omitted)). The instant appeal is Brown’s third

direct appeal in this case. In Brown’s second direct appeal before this Court,

Brown raised the same challenge to his conviction that he now makes, but we

concluded that Brown had waived the issue by not raising it in his first appeal. See

United States v. Brown, 134 Fed.Appx. 279, 283 n.4 (11th Cir. 2005).

Accordingly, we decline to address Brown’s challenge to his conviction in this

appeal.1

       Based on the foregoing, we affirm Brown’s conviction and sentence.

       AFFIRMED.


       1
         We also reject Brown’s unfounded attempt to avoid the law-of-the-case doctrine based
on the “actual innocence” exception from Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995),
which provides a possibility for review of procedurally defaulted claims in a habeas context.
Moreover, we conclude that none of the exceptions to the law-of-the-case doctrine is applicable
in this case. See United States v. Escobar-Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997)
(discussing exceptions to the law-of-the-case doctrine).

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