                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT          FILED
                           ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                  No. 05-13529                   February 3, 2006
                                                                THOMAS K. KAHN
                              Non-Argument Calendar
                                                                    CLERK
                            ________________________

                        D. C. Docket No. 03-20411-CR-JEM

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

HIRARD ESPERANCE,

                                                                Defendant-Appellant.


                            ________________________

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

                                 (February 3, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Hirard Esperance appeals his 151-month sentence for conspiracy to possess

with intent to distribute crack cocaine, in violation of 21 U.S.C. §§
841(b)(1)(A)(iii) and 846, and distribution of crack cocaine, in violation of 21

U.S.C. § 841(a)(1). After review, we affirm Esperance’s 151-month sentence.

                                     I. BACKGROUND

       Before discussing Esperance’s current 151-month sentence, we outline what

happened in Esperance’s prior appeal in which we affirmed his convictions but not

his 188-month sentence.

A.     First Appeal

       Esperance was tried and convicted of both (1) a drug conspiracy that

involved three drug transactions, totaling 225.9 grams of cocaine base, with

undercover police officers in April and May 2003, and (2) a drug distribution count

that involved one of those transactions, specifically a purchase of 131.7 grams of

cocaine base on April 24, 2003.1

       At Esperance’s original sentencing, the presentence investigation report

(“PSI”) attributed 225.9 grams of cocaine base to Esperance to assign him a base

offense level of 34 pursuant to U.S.S.G. § 2D1.1(c)(3). The PSI recommended a

two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1) because a firearm



       1
         The third drug transaction was arranged by an undercover officer, but was not
consummated because instead law enforcement executed a search warrant on the residences
where the previous two transactions had occurred and where the drugs for the third transaction
were being prepared. However, for ease of reference, we will refer to all three incidents as drug
transactions.

                                                2
was found during a search of the residence where the cocaine base had been

cooked. The PSI concluded that Esperance was not entitled to a role reduction.

With an adjusted offense level of 36 and a criminal history category of I, the PSI

recommended a guidelines imprisonment range of 188 to 235 months.

      Esperance did not object to the drug quantity attributed to him for purposes

of determining his base offense level of 34. He also did not seek safety-valve

relief. However, Esperance objected to the two-level firearm enhancement and

also to the denial of a minor role reduction. The district court overruled

Esperance’s objections and sentenced Esperance based on the calculations in the

PSI to 188 months’ imprisonment.

      In his first appeal, Esperance raised several issues relating to the conduct of

his trial and also challenged his original 188-month sentence. As to his sentence,

Esperance challenged only the district court’s imposition of two-level firearm

enhancement. In his first appeal, Esperance did not challenge the district court’s

drug quantity finding that Esperance’s conspiracy offense involved 225.9 grams of

cocaine base. Nor did he argue that he was entitled to safety-valve relief. We

affirmed Esperance’s convictions, but vacated Esperance’s sentence and expressly

remanded “for resentencing without the firearm enhancment.” Therefore, we

remanded with a limited mandate to remove the firearm enhancement and



                                          3
resentence.

B.     Post-remand Resentencing

       On remand, Esperance renewed his objections raised at the original

sentencing. He also raised the following three new objections: (1) that he should

be held accountable only for the April 24, 2003, transaction involving 131.7 grams

of cocaine base, which would result in a base offense level of 32, rather than 34

and a guidelines imprisonment range of 121 to 151 months;2 (2) that a sentence

based on a 100:1 ratio for crack cocaine and cocaine powder was unreasonable

under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and that

Esperance should be sentenced under a 20:1 ratio; (3) that Esperance qualified for

safety-valve relief under 18 U.S.C. § 3553(f).

       At the resentencing hearing, Esperance argued that only the April 24, 2003,

transaction involving 131.7 grams of cocaine base should be attributable to him for

purposes of calculating his base offense level. The government responded that

Esperance could still be held accountable for the amount of drugs involved in all

three transactions comprising the conspiracy in which Esperance was involved and



       2
         In his post-remand written objection filed with the district court, Esperance claims that
he is renewing his objection to the calculation of the drug quantity in the PSI, namely paragraphs
22 and 32. However, Esperance did not object to these two paragraphs in his first written
objection and did not raise this objection verbally at the sentencing hearing. Therefore, at
resentencing, Esperance’s objection to drug quantity was a new, not a renewed, objection.

                                                4
for which he was convicted. The district court agreed and found that Esperance

was accountable for the full 225.9 grams of cocaine base.

       Esperance then renewed his request for a minor role reduction, arguing that

he was present at only one of the three transactions and that he had an innocent

explanation for his presence. The government responded that objections raised at

the first sentencing and overruled were not within the scope of the remand, as

follows:

       Your Honor, first of all, this was considered by the Court initially.
       You ruled against them. We are here for re-sentencing on the one
       enhancement issue. So, first of all, I’m not sure that the Court even
       can consider all these other issues that were previously raised and
       denied.

The government alternatively argued that Esperance was not entitled to a minor

role reduction because some of his co-conspirators had testified at trial that he was

a supplier of some of the cocaine powder that was converted to crack cocaine. The

district court stated that it would “renew my rulings [and] again deny [the] minor

role at this particular time.”

       Finally, Esperance contended that he qualified for safety-valve relief.

Defense counsel stated that Esperance maintained his innocence and had provided

all the information he knew. The government responded that Esperance’s

continued claim of innocence was inconsistent with his convictions generally and,



                                           5
in particular, with comments Esperance made to undercover police officers

showing that he was involved in the April 24, 2003, drug transaction. The district

court denied safety-valve relief, noting that the jury had found Esperance guilty of

the drug conspiracy and Esperance had not met the requirements for obtaining

safety-valve relief.

      The district court then found that Esperance’s total offense level was 34 and

his criminal history category was I, resulting in an advisory guidelines

imprisonment range of 151 to 188 months. The district court then stated its belief

that “it is adequate to put him at the bottom end of that guideline,” and that “the

facts of this case mandate a sentence within the advisory guideline range albeit at

the lower end . . . .” After permitting Esperance to allocute, the district court stated

that it had considered the parties’ statements, the PSI, the advisory guidelines range

and the factors in 18 U.S.C. § 3553. The district court then sentenced Esperance,

“[b]ased on the severity and significance of the offense,” to 151 months’

imprisonment, at the low end of the guidelines range. This appeal followed.

                                  II. DISCUSSION

A.    Drug Quantity

      In this second appeal, Esperance contends that, for purposes of calculating

his base offense level under the guidelines, the district court should have held him



                                           6
accountable for a lower drug quantity. We do not address this argument because

this issue is foreclosed by the law-of-the-case doctrine.

       Under one arm of the law-of-the-case doctrine, 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, 1560 (11 th Cir. 1997)

(holding that failure to challenge on first appeal district court’s decision regarding

the amount of “usable” cocaine for purposes of calculating guidelines sentence

precluded defendant from raising issue on second appeal); United States v. Fiallo-

Jacome, 874 F.2d 1479, 1481-83 (11 th Cir. 1989) (holding that criminal defendant

waives his right to raise in second appeal issues not raised in first appeal). There

are three exceptions to the law-of-the-case doctrine. A court is not bound by a

prior ruling if (1) new evidence is presented, (2) there is a 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.

       None of the exceptions to the law-of-the-case doctrine apply to the district

court’s drug quantity finding. Therefore, that drug quantity finding became the

law of the case, and Esperance is precluded from relitigating drug quantity in his

second appeal.3


       3
       When an appellate court vacates a sentence in its entirety and remands with a general
mandate, the law-of-the-case doctrine does not apply, and the district court is free to conduct a

                                                 7
       Alternatively, even if this Court’s original remand were construed to be a

general remand, thereby permitting the district court and the defendant to revisit

the drug quantity issue, the district court did not clearly err in its fact finding as to

drug quantity. In our prior opinion in the first appeal, the Court affirmed

Esperance’s convictions and outlined in detail the evidence connecting Esperance

to the drug conspiracy, and we need not repeat it here. In addition, the drug

quantity of 225.9 grams of cocaine base was all attributed to Esperance as a

member of this drug conspiracy and consisted of: (1) 71.3 grams purchased from

his co-conspirators Frank and Cineas during the April 18, 2003 transaction at the

6040 NW First Avenue residence; (2) the 131.7 grams purchased from Frank and

Cineas with Esperance’s assistance at the 6063 NW First Avenue residence on

April 24, 2003; and (3) the additional 22.9 grams seized from the 6063 NW First

Avenue residence on May 13, 2003. Furthermore, at trial, Cineas testified that

Esperance was involved in the drug deals, was present when she “cooked” the

cocaine powder into cocaine base for the April 24 transaction, and that Esperance

helped Frank count the money during that transaction. Joseph, another co-

conspirator, testified that Esperance provided “half keys” and “keys” of cocaine


de novo resentencing. See, e.g., United States v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003).
“If the appellate court issues a limited mandate, however, the trial court is restricted in the range
of issues it may consider on remand.” Id. (citing United States v. Tamayo, 80 F.3d 1514, 1520
(11th Cir. 1996)).

                                                  8
powder to Frank, which Frank then cooked into crack. The undercover officer

testified, after hearing an audiotape, that Esperance approached his car during the

second purchase of 5 “cookies” of cocaine base and said, “We have four. We are

making five. Just wait.” After review, we conclude that there was ample evidence

to support the district court’s drug quantity finding as to Esperance. See U.S.S.G.

§ 1B1.3(a) (stating that a defendant’s base offense level is based on reasonably

foreseeable actions of others taken in furtherance of the jointly undertaken criminal

activity); United States v. Maxwell, 34 F.3d 1006, 1012 (11 th Cir. 1994)

(explaining that, under the Sentencing Guidelines, a member of a drug conspiracy

is accountable for the reasonably foreseeable conduct of others in furtherance of

the drug conspiracy).

B.    Safety Valve

      Esperance also argues that the district court clearly erred in denying him

“safety-valve” relief. For the reasons already discussed with regard to Esperance’s

challenge to the drug quantity, the law-of-the-case doctrine precludes further

consideration of this issue. Esperance did not seek safety-valve relief at his

original sentencing and raise that issue in his first appeal. Therefore, under the

law-of-the-case doctrine, Esperance waived his right to raise the safety-valve issue

in a second appeal. See United States v. Fiallo-Jacome, 874 F.2d at 1481-83.



                                           9
Additionally, the safety-valve issue did not fall within the scope of this Court’s

limited mandate on remand to sentence Esperance without the firearm

enhancement and did not fall within one of the exceptions to the law-of-the-case

doctrine. See Tamayo, 80 F.3d at 1521 (holding that issues outside the scope of

the limited mandate were precluded by law-of-the-case doctrine).

      Alternatively, even if this Court’s remand were construed to be a general

remand, Esperance’s safety-valve argument still fails. Under the safety-valve

provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, a sentencing court may

depart downward from the statutory minimum sentence if the defendant, among

other things, gives the government prior to the sentencing hearing truthful and

complete information concerning his involvement in the offense. United States v.

Simpson, 228 F.3d 1294, 1304-05 (11 th Cir. 2000); 18 U.S.C. § 3553(f)(5);

U.S.S.G. § 5C1.2(a)(5). “The question of whether the information [that the

defendant] supplied to the government . . . was truthful and complete . . . is a

factual finding for the district court.” United States v. Brownlee, 204 F.3d 1302,

1305 (11th Cir. 2000). “The burden of proof on the truthfulness issue lies, of

course, with the defendant.” United States v. Espinosa, 172 F.3d 795, 797 (11th

Cir. 1999). We review a district court’s factual determinations in deciding whether

to grant safety-valve relief for clear error. United States v. Cruz, 106 F.3d 1553,



                                          10
1556-57 (11th Cir. 1997).

       The district court did not clearly err in concluding that Esperance did not

meet his burden to provide a complete and truthful statement of his involvement in

the drug conspiracy. At resentencing, Esperance maintained that he was innocent.

However, Esperance was tape-recorded speaking to undercover agents in a way

that demonstrated that he was involved in and aware of the drug sale.4 Esperance

offered no information to account for his statements to undercover agents. Under

these facts, the district court did not clearly err in denying safety-valve relief.

C.     Reasonableness of Esperance’s Sentence

       Esperance next argues that his sentence is unreasonable under United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Among other things, Esperance

argues that the 100:1 penalty ratio for offenses involving cocaine base compared to

offenses involving cocaine powder renders his sentence unreasonable. Esperance’s

reasonableness challenge is not foreclosed by the law-of-the-case doctrine because

it falls within one of the doctrine’s exceptions. Booker was decided after we

remanded Esperance’s case for resentencing, and Booker’s remedial holding that a

sentence must be reasonable constituted an intervening change in the law.



       4
        Specifically, Esperance stated to an undercover officer and a confidential informant who
were waiting in a car for the cocaine to finish “cooking,” “We have four. We are making five.
Just wait,” and “Be cool, we make it right for you.”

                                               11
       After Booker, a district court, in determining a reasonable sentence, must

consider the correctly calculated sentencing range under the Sentencing Guidelines

and the factors set forth in 18 U.S.C. § 3553(a). See Booker, 543 U.S. at ___, 125

S. Ct. at 764-66; United States v. Talley, 431 F.3d 784, 786 (11 th Cir. 2005).5 We

review a defendant’s ultimate sentence, in its entirety, for unreasonableness in light

of the factors in § 3553(a). See United States v. Winigear, 422 F.3d 1241, 1245

(11 th Cir. 2005).

       After review, we cannot say that Esperance’s 151-month sentence was

unreasonable. The district court imposed a sentence at the bottom of the guidelines

range of 151 to 188 months and well below the statutory maximum sentence of life

imprisonment. See Talley, 431 F.3d at 788 (explaining that, although we have

declined to hold that a sentence within the guidelines range is per se reasonable,

ordinarily we expect such a sentence to be reasonable); Winigear, 422 F.3d at 1246

(comparing, as one indication of reasonableness, the actual prison term imposed to

the statutory maximum). The district court stated that it had considered the parties’


       5
         The factors in § 3553(a) include: “(1) the nature and circumstances of the offense; (2)
the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law, and to provide just punishment; (4)
the need to protect the public; and (5) the Guidelines range.” United States v. Scott, 426 F.3d
1324, 1328-29 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)). “[N]othing in Booker or elsewhere
requires the district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” Id. at 1329. Instead, indications in
the record that the district court considered facts and circumstances falling within § 3553(a)’s
factors will suffice. Talley, 431 F.3d at 876; Scott, 426 F.3d at 1329-30.

                                                12
statements, the advisory guidelines range and the factors in § 3553(a) and, based

on “the severity and the significance of the offense,” imposed a sentence at the low

end of the guidelines range. Given that the district court consulted the accurately

calculated guidelines range and considered the factors of § 3553(a), we cannot say

that Esperance’s sentence at the low end of the guidelines range is unreasonable.

      For all these reasons, we affirm Esperance’s 151-month sentence.

      AFFIRMED.




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