             Case: 12-15003    Date Filed: 07/24/2014   Page: 1 of 4


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-15003
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:08-cr-00053-MEF-SRW-2



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

LAMARIO HARRIS,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        ________________________

                                 (July 24, 2014)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Lamario Harris appeals the denial of his second motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the
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Sentencing Guidelines. Harris contends both he and the district court

miscalculated his amended guideline range in his first § 3582(c)(2) motion, and

that, because his correct amended guideline range was lower than the court

calculated, the court had the authority in response to his second § 3582(c)(2)

motion to reduce his sentence even further.

      The district court did not abuse its discretion by denying Harris’s second

§ 3582(c)(2) motion because, even if the district court incorrectly calculated his

amended guideline range in its order granting his initial § 3582(c)(2) motion,

Harris failed to appeal that decision. See United States v. Escobar-Urrego, 110

F.3d 1556, 1560-61 (11th Cir. 1997) (stating a defendant is barred from

challenging a district court’s decision in a later stage of litigation if the party failed

to challenge it on appeal when it had the opportunity to do so). Instead, Harris

chose to file a second § 3582(c)(2) motion to request a further reduction in his

sentence, but, in failing to appeal his first § 3582(c)(2) order, Harris waived any

right to challenge any of the conclusions in that order under the law-of-the-case

doctrine. See id.

      Further, none of the exceptions to the law-of-the-case doctrine apply because

(1) there was no later evidence that was substantially different, (2) there has been

no subsequent controlling authority that requires a different opinion now, and

(3) the decision was not clearly erroneous and would not work a manifest injustice.


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See id. at 1561. The only potentially relevant exception in this case is if the

decision was clearly erroneous and would work a manifest injustice.

       Even if the district court’s calculation of Harris’s guideline range was clearly

erroneous, the decision did not work a manifest injustice, given that (1) the court

was not required to reduce Harris’s sentence under § 3582(c)(2) at all, see United

States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (explaining once the district

court determines the amended guideline range, the court has the discretion to

determine if it will impose a new sentence under the amended guidelines or if it

will retain the original sentence); (2) the district court was not required to re-

impose the 2-level substantial-assistance departure, as the Guidelines only indicate

the court was permitted to do so, see U.S.S.G. § 1B1.10(b)(2)(B); and (3) nothing

in the text of § 3582(c)(2) or §1B1.10(b) indicates the district court was required to

sentence below the high end of his guideline range, only that the court could not go

below the low end except in cases involving substantial assistance. As a result, the

district court could have sentenced Harris to the 78-month sentence, even if it had

calculated his guideline range properly. 1 See 18 U.S.C. § 3582(c)(2); U.S.S.G.

§ 1B1.10. Because there is no manifest injustice and none of the other exceptions

apply, any challenge to the district court’s calculation of Harris’s amended

       1
          With a total offense level of 23 and a criminal history category of IV, the district court
calculated Harris’s amended guideline range at 70 to 87 months’ imprisonment in the original
§ 3582(c)(2). It appears the total offense level should have actually been 21, yielding a guideline
range of 57 to 71 months’ imprisonment.
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guidelines range is precluded under the law-of-the-case doctrine. See Escobar-

Urrego, 110 F.3d at 1561.

      Because Harris cannot directly challenge the district court’s decision on his

first § 3582(c)(2) motion due to his untimely notice of appeal, and because he

cannot challenge the conclusions that the court made in that decision under the

law-of-the-case doctrine, he cannot show that the district court’s refusal to further

reduce his sentence in response to his second § 3582(c)(2) motion was an abuse of

discretion. See United States v. Douglas, 576 F.3d 1216, 1218 n.1 (11th Cir. 2009)

(reviewing the district court’s decision to grant or deny a § 3582(c)(2) motion for

an abuse of discretion). Specifically, without reaching the calculations in the first

order, Harris cannot show the district court applied an incorrect legal standard or

made findings of fact that were clearly erroneous in its second order. See United

States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009) (explaining an abuse of

discretion occurs where the district court applies an incorrect legal standard or

makes findings of facts that are clearly erroneous). Accordingly, we affirm.

      AFFIRMED.




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