                   Case: 11-14780          Date Filed: 07/27/2012   Page: 1 of 15

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-14780
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:93-cr-00252-UU-3



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff-Appellee,

                                                 versus

KEVIN DENARD ROZIER,
a.k.a. Bo,
a.k.a. Cowboy,
a.k.a. Slick,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                     ________________________

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

                                             (July 27, 2012)
              Case: 11-14780     Date Filed: 07/27/2012    Page: 2 of 15

Before DUBINA, Chief Judge, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Appellant Kevin Denard Rozier appeals his total sentence of 50 years’

imprisonment, imposed by the district court following his successful 28 U.S.C. §

2241 petition, for two counts of knowingly and intentionally distributing cocaine,

in violation of 21 U.S.C. § 841(a)(1) (“Counts 5 and 6”), and one count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(“Count 20”). Prior to his resentencing, Rozier was sentenced to 20 years’

imprisonment on Counts 5 and 6, set to run concurrently, and to life imprisonment

on Count 20, also set to run concurrently. Following Rozier’s successful § 2241

petition challenging only his sentence on Count 20, the district court vacated the

original judgment and resentenced him to 20 years’ imprisonment on Counts 5 and

6, set to run consecutively, and to a consecutive 10 year sentence of imprisonment

on Count 20, which was the statutory maximum.

      Rozier presents three arguments on appeal. First, he asserts that once the

Sentencing Guidelines became advisory after the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),

our opinion in United States v. Rosen, 764 F.2d 763, 766 (11th Cir. 1985), should

be read to dictate that the district court does not have jurisdiction to resentence a

                                           2
              Case: 11-14780    Date Filed: 07/27/2012    Page: 3 of 15

defendant on counts of conviction that he does not challenge in a § 2241 petition.

Second, he argues that the district court violated his due process and double

jeopardy rights by resentencing him on the unchallenged counts of conviction.

Third, he argues that the district court violated the Double Jeopardy Clause by

resentencing him to a consecutive 10-year term of imprisonment on Count 20,

because his new sentence stripped him of time he had already served in

completing his sentence on Count 20.

      For the reasons that follow, we affirm.

                                          I.

      We review questions concerning the jurisdiction of the district court de

novo. United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010). Under

the law-of-the-case doctrine, the parties may not relitigate, and we may not

reconsider, issues that were decided in an earlier appeal of the same case. See

United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005). Thus, “[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). The

law-of-the-case doctrine may be overcome, however, when substantially different

evidence is produced, controlling authority has changed, or the prior decision was

                                          3
              Case: 11-14780     Date Filed: 07/27/2012   Page: 4 of 15

clearly erroneous and application of it would result in manifest injustice. Id.

      In Rosen, a pre-Sentencing Guidelines case, we held that multiple-count

convictions presented the trial judge with the need for a sentencing scheme that

took into consideration “the total offense characteristics of a defendant’s

behavior.” Rosen, 764 F.2d at 767. When that scheme was disrupted because it

incorporated an illegal sentence, it was appropriate for the entire case to be

remanded for resentencing. Id. We limited our holding, however, to situations

where a defendant challenged all of his convictions on direct appeal. Id. We held

that there was a difference between a collateral attack on a particular sentence

under Fed.R.Crim.P. 35 or 28 U.S.C. § 2255, and a direct appeal from multiple

count convictions. Id. at 766–67. With a collateral attack, we held that, because

only a specific sentence on a specific count was before the district court, the court

had power only over the specific count. Id. at 766.

      Subsequently, after the Sentencing Guidelines went into effect, we decided

United States v. Mixon, 115 F.3d 900 (11th Cir. 1997), which addressed successful

collateral challenges to 18 U.S.C. § 924(c) convictions under Bailey v. United

States, 516 U.S. 137, 142-43, 116 S. Ct. 501, 505, 133 L. Ed. 2d 472 (1995), and

decided that the district court may resentence defendants on related but

unchallenged drug count convictions. Mixon, 115 F.3d at 902. We noted that, at

                                          4
             Case: 11-14780     Date Filed: 07/27/2012   Page: 5 of 15

the time of sentencing, the district court could not impose the mandatory sentence

for the § 924(c) violation and apply a two-level enhancement under U.S.S.G. §

2D1.1(b)(1) for possession of firearms during the offense. Id. Thus, the

relationship between § 924(c) and § 2D1.1(b)(1) was an “either/or relationship” at

sentencing. Id. We concluded that the Guidelines contemplated the

interdependence of a § 924(c) conviction and underlying drug offenses and held

that, based on the interdependence of the multiple counts for sentencing purposes,

the district court could properly adjust the defendants’ sentences on the

unchallenged counts. Id. at 903.

      In United States v. Oliver, 148 F.3d 1274 (11th Cir. 1998), the appellants

argued that their § 924(c) convictions were invalid in light of Bailey, and we held

that their arguments were foreclosed by Mixon. Oliver, 148 F.3d at 1275. We

further noted that our decision in Rosen was not in opposition to our holding in

Mixon, because Rosen was a pre-Guidelines case, and the language cited by the

defendants was dicta. Id. We reasoned that because Rosen was a pre-Guidelines

case, it could not have considered the unique relationship between 18 U.S.C. §

924(c) and U.S.S.G. § 2D1.1(b)(1). Id.

      Similarly, in United States v. Watkins, 147 F.3d 1294 (11th Cir. 1998), we

faced the same question as in Mixon and Oliver, but with a twist. See Watkins,

                                         5
              Case: 11-14780     Date Filed: 07/27/2012   Page: 6 of 15

147 F.3d at 1296. The defendant in Watkins was an armed career criminal, which

meant that U.S.S.G. § 2D1.1(b)(1) could not apply to enhance his offense level.

Id. Accordingly, we had to decide whether the availability of the § 2D1.1(b)(1)

enhancement was an integral component of the district court’s jurisdiction to

resentence on unchallenged counts following a § 2255 proceeding that vacated a

§ 924(c) conviction. Id. at 1296-97. The defendant relied on Rosen and argued

that the district court did not have jurisdiction to resentence him on Counts I and

II, because only Count III was the subject of his habeas petition. We noted that

Rosen was decided before the Guidelines went info effect and did not contemplate

the interdependence of a § 924(c) conviction and the underlying offense.

Accordingly, Rosen was distinguishable. See id. We further noted that the district

court viewed the defendant’s sentence as a “package,” and we held that the

“interdependence of the drug and firearms offenses and the sentencing package

doctrine provided the district court with the jurisdiction to resentence [the

defendant] following his successful collateral attack on the § 924(c) offense.” Id.

at 1297. Thus, the availability of the U.S.S.G. § 2D1.1(b)(1) enhancement was not

necessary to the court’s jurisdiction to resentence on unchallenged counts. Id.

      Post-Booker, we have repeatedly held that district courts are still required to

correctly calculate the advisory guideline range before imposing a sentence. See,

                                          6
              Case: 11-14780    Date Filed: 07/27/2012   Page: 7 of 15

e.g., United States v. Livesay, 525 F.3d 1081, 1089 (11th Cir. 2008). Moreover,

we have adopted a “holistic approach” to resentencing, “treating a criminal

sentence as a package of sanctions that may be fully revisited upon resentencing.”

United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010) (internal

quotation marks omitted).

      The Supreme Court has held that appellate courts may continue to use the

“sentencing package” approach. See Greenlaw v. United States, 554 U.S. 237,

253, 128 S. Ct. 2559, 2569, 171 L. Ed. 2d 399 (2008). It noted that such

“sentencing package cases” typically involve multi-count indictments and “a

successful attack by a defendant on some but not all of the counts of conviction.”

Id. The appeals court, in such instances, “may vacate the entire sentence on all

counts so that, on remand, the trial court can reconfigure the sentencing plan to

assure that it remains adequate to satisfy the sentencing factors in 18 U.S.C. §

3553(a).” Id. The Supreme Court further recognized the possibility that, upon

remand, trial courts may impose sentences on the remaining counts that were

longer than the sentences originally imposed on those counts, but yielding an

aggregate sentence that was no longer than the original aggregate sentence. Id. at

253, 128 S. Ct. 2569-70. Thus, although the defendant ultimately may gain

nothing from his limited success on appeal, he also loses nothing. Id. at 254, 128

                                          7
              Case: 11-14780    Date Filed: 07/27/2012    Page: 8 of 15

S. Ct. at 2570.

      Mixon, Oliver, and Watkins are all good law, because although the

Sentencing Guidelines are now advisory under Booker, district courts must still

consider the Guidelines and correctly calculate the advisory guideline range before

imposing a sentence. Livesay, 525 F.3d at 1089. Therefore, when imposing

sentences for multi-count convictions, district courts must necessarily consider the

interdependence of various crimes under the Guidelines. As such, the advisory

nature of the Guidelines does not change our holding that a district court has

jurisdiction to resentence a defendant on unchallenged counts of conviction,

following a successful collateral attack, when the unchallenged and challenged

counts are “interdependent” for sentencing purposes under the Guidelines. See,

e.g., Mixon, 115 F.3d at 903. The Supreme Court’s approval of sentencing

packages further supports our position. See Greenlaw, 554 U.S. at 253, 128 S. Ct.

at 2569.

      Accordingly, here, the district court had jurisdiction to resentence Rozier on

Counts 5 and 6 as long as they were interdependent with Count 20. We previously

held, in a 2002 decision affirming Rozier’s prior total sentence, that the drug and

firearms offenses in his case were interdependent, because Count 20 involved

conduct that was treated as a specific offense characteristic in the guidelines

                                          8
               Case: 11-14780    Date Filed: 07/27/2012   Page: 9 of 15

applicable to Counts 5 and 6, and because the three counts were grouped together.

Because we already decided the interdependence question in an earlier appeal, we

may not reconsider it, pursuant to the law-of-the-case doctrine, and Rozier has not

identified any reasons why the doctrine should be overcome. Jordan, 429 F.3d at

1035.

        Thus, because Counts 5, 6, and 20 were interdependent for sentencing

purposes under the Guidelines, we conclude that the district court had jurisdiction

to resentence Rozier on Counts 5 and 6, even though he did not challenge those

counts in his § 2241 petition.

                                          II.

        Whether a district court’s resentencing violated a defendant’s due process

and double jeopardy rights involve questions of law that we review de novo.

Watkins, 147 F.3d at 1296.

        “A defendant’s due process rights may be violated when a sentence is

enhanced after the defendant has served so much of his sentence that his

expectations as to finality have crystallized and it would be fundamentally unfair

to defeat them.” United States v. Davis, 329 F.3d 1250, 1255 (11th Cir. 2003)

(internal quotation marks omitted). In addition, due process is implicated if, “after

the vacatur of a defendant’s sentences, the district court imposes a harsher

                                          9
             Case: 11-14780     Date Filed: 07/27/2012    Page: 10 of 15

punishment.” United States v. Stinson, 97 F.3d 466, 470 (11th Cir. 1996) (internal

quotation marks omitted).

      As for the Double Jeopardy Clause, it protects against, inter alia, multiple

punishments for the same offense. United States v. Cochran, 883 F.2d 1012, 1016

(11th Cir. 1989), superseded by rule on other grounds as stated in United States v.

Diaz-Clark, 292 F.3d 1310, 1318 (11th Cir. 2002). Thus, the clause may be

violated when a defendant’s original sentence is increased in a second proceeding.

Id. In such a circumstance, “the double jeopardy inquiry turns on the extent and

legitimacy of a defendant’s expectation of finality in the original sentence.” Id.

(quoting United States v. DiFrancesco, 449 U.S. 117, 139, 101 S. Ct. 426, 438, 66

L. Ed. 2d 328 (1980)).

      In Mixon, we noted that, while it was clear that the “Due Process Clause

would be implicated if the district court had imposed harsher sentences, that [was]

not the case . . . where the district court substantially reduced” the defendant’s

total sentence. Mixon, 115 F.3d at 904. We also held that resentencing the

defendant on unchallenged counts did not violate the Double Jeopardy Clause,

because the defendant did not have an expectation of finality with regard to his

sentence when his overall sentence was reduced. Id. at 903-04.

      Likewise, in Watkins, we held that the district court did not violate the

                                          10
             Case: 11-14780    Date Filed: 07/27/2012    Page: 11 of 15

defendant’s due process rights when it increased his sentences on unchallenged

counts. Watkins, 147 F.3d at 1298. Because the defendant’s aggregate sentence

was not increased, the defendant was put in the same position as if the vacated

count was never included in the indictment. The defendant also had no

expectation of finality in his sentence because he challenged a conviction that was

closely linked with his unchallenged drug offenses, and because he had not

completed his term of imprisonment. Id. Moreover, we held that the defendant’s

resentencing did not violate the Double Jeopardy Clause, because the defendant

had no expectation of finality in his original sentence on his unchallenged count,

when that sentence was interdependent on the challenged sentence. Id.

at 1297-98. When “a prisoner collaterally attacks a portion of a judgment, he is

reopening the entire judgment and cannot selectively craft the entire manner in

which the court corrects that judgment.” Id. at 1298 (internal quotation marks

omitted).

      We conclude from the record here that Rozier’s due process rights were not

violated because he did not have an expectation of finality as to his sentences,

such that the district court’s enhancement of his sentences was fundamentally

unfair. Davis, 329 F.3d at 1255. Moreover, the district court did not impose a

harsher sentence. Stinson, 97 F.3d at 470. Although the district court ordered his

                                         11
             Case: 11-14780      Date Filed: 07/27/2012    Page: 12 of 15

sentences on Counts 5 and 6 consecutive, it reduced his total sentence from life

imprisonment to 50 years’ imprisonment. See Watkins, 147 F.3d at 1298. In

addition, his unchallenged sentences were interdependent with his challenged

sentence, and because his original total sentence was life imprisonment, he could

not have had any expectations of finality when he had served about 20 years of

that total sentence. Id.

       For similar reasons, we conclude that Rozier’s double jeopardy rights were

not violated. Specifically, he had no expectations of finality in his original

sentences on Counts 5 and 6, when those sentences were interdependent on the

sentence for Count 20. Id. at 1297-98. In other words, he did not have any

expectations of finality regarding his individual sentences on each count of

conviction, when his sentences were originally created to form a sentencing

package of life imprisonment.

                                          III.

      We review arguments raised for the first time on appeal for plain error.

United States v. Belfast, 611 F.3d 783, 815 (11th Cir. 2010). To establish plain

error, the defendant must show that there was (1) error, (2) that was plain, and (3)

that affected his substantial rights. “[W]e may reverse only if the error also

seriously affected the fairness, integrity, or public reputation of judicial

                                           12
             Case: 11-14780     Date Filed: 07/27/2012   Page: 13 of 15

proceedings.” Id. (internal quotation marks omitted).

      As previously noted, the Double Jeopardy Clause may be violated when a

defendant’s original sentence is increased in a second proceeding. Cochran, 883

F.2d at 1016. In such a circumstance, the double jeopardy inquiry “turns on the

extent and legitimacy of a defendant’s expectation of finality in the original

sentence.” Id. (internal quotation marks omitted). Any expectation of finality in a

sentence, however, “is wholly absent where . . . the defendant requests that his

prior sentences be nullified.” Id. at 1017. “The defendant has, by his own hand,

defeated his expectation of finality, and the Double Jeopardy Clause, which guards

against Government oppression, does not relieve a defendant from the

consequences of his voluntary choice.” Id. (internal quotation marks omitted).

      For purposes of the Double Jeopardy Clause, resentencing does not create

multiple punishments for the same offense since the prior punishment is void,

provided that the defendant receives credit for time served. Id. When a conviction

is set aside, and a prisoner is subsequently retried and convicted of the same

offense, “it is well-established that under the Double Jeopardy Clause, the time

served under the invalid conviction must be credited toward the new sentence.”

Henley v. Johnson, 885 F.2d 790, 793 (11th Cir. 1989). The same applies when a

prisoner is resentenced following a successful post-conviction challenge to his

                                         13
             Case: 11-14780     Date Filed: 07/27/2012   Page: 14 of 15

original sentence. See Jones v. Thomas, 491 U.S. 376, 378, 382, 109 S. Ct. 2522,

2524, 2526, 105 L. Ed. 2d 322 (1989).

      As an initial matter, Rozier raises this argument for the first time on appeal,

and thus, we review for plain error only. Belfast, 611 F.3d at 815. Here, we

conclude from the record that the district court did not plainly err by resentencing

Rozier to a consecutive 10-year sentence on Count 20. When he appealed his

original sentence on Count 20, he voluntarily requested that the sentence be

nullified, thereby removing any expectation of finality in his sentence and

defeating any subsequent Double Jeopardy claim. Stinson, 97 F.3d at 469;

Cochran, 883 F.2d at 1017. Moreover, as discussed above, he did not have an

expectation of finality in his original sentence when his counts of conviction were

interdependent, and he had not completed his aggregate sentence. See Watkins,

147 F.3d at 1298. In addition, even though Rozier is correct in that time already

served under an old sentence must be credited against a new sentence, under a

“sentencing package” approach, any time served would be credited against the

new total sentence, not the individual sentences on each count of conviction.

Henley, 885 F.2d at 793. Therefore, because the district court imposed a

“sentencing package” in this case, any time Rozier already served would go

against his total sentence, not his individual sentence on Count 20. Thus, no

                                         14
            Case: 11-14780    Date Filed: 07/27/2012   Page: 15 of 15

double jeopardy violation has occurred, because he has not received multiple

punishments for the same offense.

      For the aforementioned reasons, we affirm Rozier’s total sentence.

      AFFIRMED.




                                       15
