                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 4, 2009
                             No. 08-15741                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

               D. C. Docket No. 03-00024-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JOSEPH JAMES STRATTON,

                                                         Defendant-Appellant.


                       ________________________

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

                           (September 4, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Joseph Stratton appeals his 100-month imprisonment sentence imposed upon

resentencing for conspiracy to possess with intent to distribute 500 grams or more

of cocaine and 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846

and 841(b)(1)(B). After review, we affirm.

                                I. BACKGROUND

      This is Stratton’s third appeal of his sentence. Stratton originally was

sentenced to 292 months’ imprisonment, at the low end of the then-mandatory

guidelines range of 292 to 365 months’ imprisonment. In Stratton’s first appeal,

this Court affirmed Stratton’s conviction, but vacated his sentence and remanded in

light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). United

States v. Thompson, 422 F.3d 1285, 1301-02 (11th Cir. 2005).

      On remand, the district court reaffirmed Stratton’s 292 to 365 months’

imprisonment guidelines range, which was now advisory. However, the district

court granted Stratton safety-valve relief under U.S.S.G. § 5C1.2 and reduced

Stratton’s base offense level to 38, resulting in a new advisory guidelines range of

235 to 293 months’ imprisonment. In mitigation, Stratton argued, inter alia, that

his sentence should be lower because of the sentencing disparity between crack

cocaine and powder cocaine offenses. The district court concluded that the

crack/powder cocaine sentencing disparity was not a proper basis for a downward



                                          2
variance. After considering the 18 U.S.C. § 3553(a) factors, the district court

imposed a 235-month imprisonment sentence.

      In Stratton’s second appeal, Stratton argued that: (1) Booker was

unconstitutional; (2) 21 U.S.C. § 846 was unconstitutional, in light of Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); (3) the district court violated

Booker in “enhancing his sentence based on extra-verdict facts”; (4) Booker’s

remedial holding implicated ex post facto and due process concerns; (5) the district

court’s adherence to the 100:1 crack-to-powder-cocaine ratio in the Sentencing

Guidelines resulted in an unreasonable sentence; and (6) the district court judge’s

failure to sua sponte recuse himself on remand was plain error. See United States

v. Stratton, 205 F. App’x 791, 793-94 & n.1 (11th Cir. 2006) (unpublished). In an

unpublished decision, this Court rejected Stratton’s arguments and affirmed his

sentence. Id.

      The Supreme Court, however, granted Stratton’s petition for a writ of

certiorari and remanded to this Court for reconsideration in light of its intervening

decision in Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007).

Stratton v. United States,   U.S.    ,   , 128 S. Ct. 859, 859 (2008). In

Kimbrough, the Supreme Court concluded that the Sentencing Guidelines’ 100:1

crack-to-powder-cocaine ratio was advisory and that district courts had the



                                           3
discretion to consider that sentencing disparity in determining a sentence.

Kimbrough, 552 U.S. at ___, 128 S. Ct. at 574-75. In turn, this Court issued an

opinion affirming and reinstating in part its previous opinion in Stratton’s second

appeal, but vacating and remanding for the limited purpose of resentencing

Stratton in light of Kimbrough. United States v. Stratton, 519 F.3d 1305, 1306-07

(11th Cir. 2008). Specifically, this Court instructed that, because remand was

limited to reconsideration of the § 3553(a) factors under Kimbrough,

      Stratton may not re-argue other issues already decided or necessarily
      decided during his two prior sentencings that either were affirmed on
      direct appeal or could have been, but were not, raised by him during
      his direct appeals. However, the district court may, if it wishes to do
      so, combine this resentencing proceeding on remand with any
      additional proceeding the district court may determine is appropriate
      in light of the retroactive application of Amendment 706 to the
      crack-cocaine guidelines effective March 3, 2008.

Id. at 1307 (citation omitted).

      Before resentencing, Stratton filed an 18 U.S.C. § 3582(c)(2) motion for a

sentence reduction. Stratton based his § 3582(c)(2) motion on Amendment 706,

which had the effect of reducing his base offense level by two levels to 36. The

district court granted the § 3582(c)(2) motion and recalculated Stratton’s advisory

guidelines range (with the amended base offense level of 36) as 188 to 235

months’ imprisonment. However, the district court withheld entry of judgment to

determine at the resentencing hearing whether any further reduction was warranted

                                          4
based on Kimbrough.

      At the third sentencing hearing, Stratton raised various Booker-related

arguments, including that: (1) any fact used to determine a sentence must satisfy

the requirements of the Fifth and Sixth Amendments; (2) Booker’s remedial

holding was unconstitutional; and (3) application of Booker’s remedial holding to

him violated the Ex Post Fact Clause and his due process rights. Stratton

conceded, however, that these objections exceeded the scope of this Court’s

limited remand.

      Stratton requested a sentence below the amended guidelines range, arguing

that the district court should apply a one-to-one ratio, as if there was no disparity

between crack and powder cocaine, for a sentencing range of 78 to 97 months.

The district court stated that, although it believed a sentence below the amended

guidelines range of 188 to 235 months’ imprisonment was appropriate, it was not

prepared to “do a straight one-to-one ratio.” The district court imposed a 100-

month imprisonment sentence. Stratton filed this appeal.

                                  II. DISCUSSION

      In this third appeal, Stratton does not challenge the reasonableness of his

third, 100-month imprisonment sentence or the extent of the district court’s




                                           5
downward variance pursuant to Kimbrough.1 Instead, Stratton raises the Booker-

type arguments asserted at the third sentencing hearing. Stratton admits that he

already raised these Booker-type arguments in his second appeal to this Court.

Thus, as the district court concluded, these issues are foreclosed by the law-of-the-

case doctrine.2

       Under the law-of-the-case doctrine, “[a]n appellate decision binds all

subsequent proceedings in the same case not only as to explicit rulings, but also as

to issues decided necessarily by implication on the prior appeal.” United States v.

Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). Thus, on remand the district court

may not consider matters outside the scope of a limited mandate. United States v.

Davis, 329 F.3d 1250, 1252 (11th Cir. 2003). Furthermore, lower court rulings

that have not been challenged on a first appeal will not be disturbed in a

subsequent appeal. See, e.g., United States v. Escobar-Urrego, 110 F.3d 1556,

       1
          In the summary of his argument, Stratton’s brief asserts that his sentence is unreasonable
because the district court applied the congressionally-mandated 100:1 crack-to-powder-cocaine
ratio in determining his sentence. However, his appeal brief does not elaborate on this issue in
its legal analysis. Further, this argument is obviously a reference to Stratton’s first resentencing,
which was vacated by the Supreme Court. Stratton’s current 100-month sentence is the result of
a substantial post-Kimbrough downward variance that was imposed only after the district court
granted Stratton’s § 3582(c)(2) motion and recalculated Stratton’s advisory guidelines range, as
modified by Amendment 706. Thus, Stratton’s appeal brief does not appear to challenge the
reasonableness of his current 100-month sentence. In any event, any argument that the district
court failed to consider the disparity between crack and powder cocaine in imposing the 100-
month sentence is without merit.
       2
        We review de novo whether the district court properly applied the law-of-the-case
doctrine. United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005).

                                                  6
1560 (11th Cir. 1997); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-83

(11th Cir. 1989). The law-of-the-case doctrine applies unless: (1) new evidence is

presented; (2) there is an intervening change in the controlling law; or (3) the prior

decision was clearly erroneous and will cause manifest injustice. Escobar-Urrego,

110 F.3d at 1561.

       As conceded by Stratton, his third appeal raises claims that were raised and

rejected in his second appeal. Specifically, this Court rejected Stratton’s

arguments that: (1) Booker is unconstitutional; (2) § 846 is unconstitutional in light

of Apprendi; (3) the district court violated Apprendi by enhancing his sentence

based on extra-verdict facts; (4) Booker’s remedial holding implicated ex post

facto and due process concerns; and (5) the district court judge’s failure to sua

sponte recuse himself was plain error. Thus, our rejection of these claims is the

law of the case, and Stratton has not shown that any exception to the law-of-the-

case doctrine applies.3

       In conclusion, we affirm Stratton’s sentence of 100 months’ imprisonment.

       AFFIRMED.

       3
         Additionally, Stratton’s claims in this third appeal are outside the scope of the limited
mandate issued in his second appeal. This Court’s prior panel opinion instructed the district
court to resentence Stratton in light of Kimbrough and gave the district court the discretion to
address Amendment 706’s changes to the crack cocaine base offense levels in the Sentencing
Guidelines. The district court complied with this Court’s mandate and properly refused to
reconsider Stratton’s Booker-related arguments. Stratton admits that his arguments are barred
and says that he is raising them only to preserve them for review to the Supreme Court.

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