            Case: 14-12893     Date Filed: 01/08/2015   Page: 1 of 8


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 14-12893
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 2:97-cr-00026-DHB-JEG-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                       versus

BILLY GUYTON, SR.,

                                                            Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                       ________________________

                               (January 8, 2014)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Billy Guyton, Sr. appeals the district court’s denial of his motion to reduce

his total 384-month sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on

Guidelines Amendment 750. We had previously remanded to the district court
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after concluding that its finding at Guyton’s original sentencing hearing that he

was responsible for “in excess of 1.5 kilograms” of cocaine base was not specific

enough to determine whether a sentence reduction under § 3582(c)(2) was

warranted. See United States v. Guyton, 550 F. App’x 796, 799-800 (11th Cir.

2013). On remand, the district court reviewed the trial testimony and determined

that Guyton was responsible for 6.0376 kilograms of cocaine base. On appeal,

Guyton argues that the district court erred in denying his § 3582(c)(2) motion

because: (1) its drug quantity finding relied on disputed facts from the presentence

investigation report (“PSI”); (2) the law-of-the-case doctrine bound the district

court to its findings during his § 3582(c)(2) proceedings in 2008 based on

Amendment 706; and (3) the district court violated his due process rights by

relying on trial testimony not included in the PSI. After careful review, we affirm.

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

authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th

Cir. 2008).   Section 3582(c)(2) provides that a district court may reduce a

defendant’s sentence where the defendant is sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered by the Sentencing

Commission.     18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1).         A sentence

reduction is only permitted if it is based on an amendment to the Sentencing




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Guidelines that has been made retroactively applicable by the Sentencing

Commission. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2014).

      To determine a defendant’s amended guideline range, the district court may

not reconsider other guidelines applications and must “leave all of its previous

factual decisions intact.” Id. (quotations and alteration omitted). Further, it cannot

reduce a sentence if the retroactive amendment does not lower the defendant’s

guideline range. Id. In a § 3582(c)(2) proceeding, the burden is on the defendant

to show that the retroactive amendment actually lowers his guidelines range. Id.

      When Guyton was originally sentenced, 1.5 kilograms or more of cocaine

base resulted in a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (1997). In

2008, § 2D1.1(c) assigned a base offense level of 36 in cases involving at least 1.5

kilograms but less than 4.5 kilograms of cocaine base, and an offense level of 38 in

cases involving more than 4.5 kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(1),

(2) (2008). Amendment 750 retroactively lowered the sentencing range applicable

to crack cocaine offenses by revising the crack cocaine quantity tables listed in §

2D1.1(c). U.S.S.G. App. C, amend. 750 (2011). At the time of the remand, §

2D1.1(c) assigned a base offense level of 36 in cases involving at least 2.8

kilograms but less than 8.4 kilograms of cocaine base. See U.S.S.G. § 2D1.1(c)(2).

The maximum base offense level under § 2D1.1 was 38, which applies in cases

involving more than 8.4 kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(1).


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      We’ve held that a district court conducting a § 3582(c)(2) proceeding does

not make an “impermissible new finding of fact” simply by holding a defendant

responsible for a crack cocaine amount that was (1) set forth in the original PSI, (2)

not objected to by the defendant or government, and (3) adopted by the original

sentencing court. See United States v. Davis, 587 F.3d 1300, 1303-04 (11th Cir.

2009). However, in Hamilton, we vacated the denial of a defendant’s § 3582(c)(2)

motion based on Amendment 750, and remanded to the district court for an

accurate determination of the defendant’s original drug quantity. 715 F.3d at 339-

41. We held that a district court’s finding that the defendant was responsible for

“at least 1.5 kilograms” at the sentencing hearing was not specific enough to

support any conclusion about whether the defendant was entitled to a reduction

under Amendment 750.        Id. at 340.    We remanded for the district court to

determine “what drug quantity findings it made, either explicitly or implicitly, at

[the defendant’s] original sentencing hearing.” Id. Next, if the district court’s

original finding was limited to “at least 1.5 kilograms,” we instructed that the

district court should examine the entire record available at sentencing to see if it

could make any further findings consistent with its previous findings. Id.

      “Under the law-of-the-case doctrine, an issue decided at one stage of a case

is binding at later stages of the same case.” United States v. Escobar-Urrego, 110

F.3d 1556, 1560 (11th Cir. 1997). The Due Process Clause requires a defendant to


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“be given adequate notice and an opportunity to contest the facts relied upon to

support his criminal penalty.” United States v. Jules, 595 F.3d 1239, 1243, 1245

(11th Cir. 2010) (quotation omitted) (noting that a § 3582(c)(2) proceeding is not a

de novo resentencing and a district court need not provide notice to the parties that

it intended to rely on information available at the original sentencing hearing).

      In this case, the district court did not err in denying Guyton’s § 3582(c)(2)

motion because Amendment 750 did not lower Guyton’s sentencing guideline

range. On remand, the district court applied our holding in Hamilton by first

determining that, at Guyton’s original sentencing, it found that Guyton distributed

“in excess of 1.5 kilograms” of cocaine base. Based on trial testimony, the district

court determined that Guyton was responsible for 6.0376 kilograms of cocaine

base, which corresponded to a base offense level of 36 because it was more than

2.8 kilograms but less than 8.4 kilograms of cocaine base. Applying the same total

5-level increase that Guyton received at his initial sentencing for obstruction of

justice and for being a manager of criminal activity involving 5 or more

participants, the district court properly determined that Guyton’s total offense level

of 41 and criminal history category of II resulted in a guideline range of 360

months to life imprisonment. Because the district court determined that Guyton’s

guideline range was 360 months to life imprisonment during Guyton’s §

3582(c)(2) proceedings in 2008, the district court did not err in concluding that


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Guyton was not eligible for a sentence reduction because Amendment 750 did not

lower his guidelines range. See Hamilton, 715 F.3d at 337.

      As for Guyton’s argument that the district court erred by relying on disputed,

un-adopted facts from the PSI, we are unpersuaded. When we remanded Guyton’s

case, we instructed the district court to ascertain more specific drug quantity

findings in accordance with our decision in Hamilton, which does not require the

district court to rely solely on the undisputed facts of the PSI. See Guyton, 550 F.

App’x at 799-800; see also Hamilton, 715 F.3d at 340. Once the district court

determined that its original findings went no further than “in excess of 1.5

kilograms” of cocaine base, the district court properly determined that it was

permitted to review all of the information before it at Guyton’s original sentencing

hearing -- including all trial testimony -- to conclude that Guyton was responsible

for 6.0376 kilograms of cocaine base. This finding was not inconsistent with the

district court’s original finding that Guyton’s offense conduct involved “in excess

of 1.5 kilograms of crack cocaine.” See Hamilton, 715 F.3d at 340.

      Guyton’s argument that the law-of-the-case doctrine applies to the district

court’s drug quantity findings during his first § 3582(c)(2) proceedings is also

unavailing. During those proceedings, the district court indicated that Guyton’s

total offense level was 41, which was the result of a base offense level of 36 given

the 5-level enhancement Guyton received at his original sentencing hearing for


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obstruction of justice and for being a manager of criminal activity. Although a

base offense level of 36 at that time corresponded to a drug quantity of more than

1.5 but less than 4.5 kilograms of cocaine base, the district court did not actually

make any specific drug quantity findings, and thus was not bound by the law-of-

the-case doctrine. See U.S.S.G. § 2D1.1(c)(2) (2008); Escobar-Urrego, 110 F.3d at

1560. In fact, we remanded to the district court after Guyton’s first § 3582(c)(2)

proceedings so that the district court could articulate more specific drug quantity

findings. See Guyton, 550 F. App’x at 799-800.

      Finally, we reject Guyton’s claim that his due process rights were violated

when the district court relied on the testimony of Charles Jackson, which Guyton

says was not included in the PSI or relied on at his original sentencing. According

to the PSI, Jackson testified at trial that he made three or four trips to Miami with

Guyton in which Guyton never purchased less than two kilograms of cocaine.

Moreover, when Guyton challenged Jackson’s testimony at the sentencing hearing,

the district court said it had the benefit of hearing all of the trial testimony and that

the jury’s guilty verdict showed it had apparently believed Jackson’s testimony.

Thus, the district court did not violate Guyton’s due process rights by relying on

information available at the sentencing hearing. See Jules, 595 F.3d at 1243, 1245.

In any event, the district court was not restricted to the information in the PSI in




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making the drug quantity findings, since it was permitted to consider the entire

record before it at sentencing. See Hamilton, 715 F.3d at 340.

      AFFIRMED.




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