           Case: 13-13615   Date Filed: 05/08/2014   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13615
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:98-cr-00091-RBD-GJK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

LEVONIA RIDLEY,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 8, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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       On September 30, 1998, Levonia Ridley, having been found guilty by a jury

of conspiracy to possess with intent to distribute crack cocaine, in violation of 21

U.S.C. § 846, was sentenced to 262-months imprisonment, at the low end of the

Guidelines range, but above the 240-months statutory mandatory minimum. 1

       Ridley subsequently moved the District Court for a sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706 to the Sentencing

Guidelines. In considering Ridley’s motion, the parties overlooked the 240-

months mandatory minimum and stipulated that Ridley was eligible to have his

sentence reduced to 210-months imprisonment. Pursuant to that stipulation, the

District Court reduced Ridley’s sentence to 210 months.

       Later, Ridley moved the District Court once again to reduce his sentence

pursuant to § 3582(c)(2) on the ground that he was entitled to a reduction based on

Amendment 750. The court denied his motion, and he brought this appeal.

       On appeal, Ridley argues that the District Court erred in denying his motion

because, in the § 3582(c)(2) proceeding based on Amendment 706, the

Government waived the application of the 240-months mandatory minimum; thus,


       1
         At sentencing, Ridley was held accountable for 94.2 grams of crack cocaine, the
equivalent of 1,888.53 kilograms of marijuana. The total offense level after enhancements was
36. This, coupled with a criminal history category of IV, yielded a Guidelines range of 262 to
327 months imprisonment. The statutory penalty for Ridley’s offense was enhanced pursuant to
21 U.S.C. § 851 to a mandatory minimum prison term of 240 months; the maximum was life
imprisonment.
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the waiver and the law of the case doctrine now preclude the Government from

asserting that the mandatory minimum bars a further reduction pursuant to

Amendment 750.

      “We review a district court’s decision whether to reduce a sentence pursuant

to § 3582(c)(2) for abuse of discretion.” United States v. White, 305 F.3d 1264,

1267 (11th Cir. 2002). “[W]e review de novo the district court’s legal conclusions

regarding the scope of its authority under [§ 3582(c)(2)].” Id. We are bound by

the decision of a prior panel unless the Supreme Court or this court sitting en banc

overrules that decision. United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir.),

cert. denied, 133 S. Ct. 568 (2012).

      A district court may modify a term of imprisonment in the case of a

defendant who was sentenced to a term of imprisonment based on a Guidelines

range that has subsequently been lowered by the Sentencing Commission.

§ 3582(c)(2). A reduction, however, must be “consistent with applicable policy

statements issued by the Sentencing Commission.” Id. The applicable policy

statements, found in U.S.S.G. § 1B1.10, state that “[a] reduction in the defendant’s

term of imprisonment . . . is not authorized under 18 U.S.C. § 3582(c)(2) if . . .

[the] amendment . . . does not have the effect of lowering the defendant’s

applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

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      In determining whether, and to what extent, it may reduce a defendant’s

sentence under § 3582(c)(2), “the court shall determine the amended guideline

range that would have been applicable to the defendant if the amendment(s) to the

guidelines listed in subsection (c) had been in effect at the time the defendant was

sentenced.” U.S.S.G. § 1B1.10(b)(1). A district court may not reduce a

defendant’s term of imprisonment under § 3582(c)(2) to a term less than the

minimum of the amended guideline range as determined in § 1B1.10(b)(1) except

if the term of imprisonment imposed was below the applicable Guidelines range at

the time of sentencing due to the government’s substantial assistance motion.

U.S.S.G. § 1B1.10(b)(2)(A)–(B).

      The Fair Sentencing Act (“FSA”) changed the crack-to-powder-cocaine ratio

for mandatory minimum sentences from 100-to-1 to about 18-to-1. Dorsey v.

United States, 567 U.S. ___, 132 S. Ct. 2321, 2328–29, 183 L. Ed. 2d 250 (2012).

Before the FSA was enacted on August 3, 2010, a conviction for possession with

the intent to distribute of 50 grams or more of cocaine base triggered a sentence of

240 months to life imprisonment if the defendant committed the violation after

having been convicted of a felony drug offense. 21 U.S.C. § 841(b)(1)(A)(iii)

(2009). The FSA raised the quantity of crack cocaine necessary to trigger a

sentence of 240 months to life imprisonment from 50 grams to 280 grams. See

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Pub. L. No. 111-220 § 2(a)(1), 124 Stat. 2372, 2372 (2010) (codified at 21 U.S.C.

§ 841(b)(1)(A)(iii)). After the FSA, where a defendant has possessed with the

intent to distribute 28 grams or more of crack cocaine, but less than 280 grams, and

has a prior conviction for a felony drug offense, a sentence of 120 months to life

imprisonment applies. See 21 U.S.C. § 841(b)(1)(B)(iii).

      The FSA directed the Sentencing Commission to promulgate emergency

amendments to bring the Guidelines into conformity with its provisions “as soon as

practicable.” § 8, 124 Stat. at 2374. Amendment 750 to the Sentencing Guidelines

amended the drug quantity table in U.S.S.G. § 2D1.1(c) to reduce offense levels in

crack cocaine cases. See U.S.S.G. App. C, Amend. 750 (2011). Amendment 750

was made retroactive by Amendment 759, effective November 1, 2011. See id.,

Amend. 759 (2011); see also U.S.S.G. § 1B1.10(c). On June 21, 2012, the

Supreme Court held in Dorsey that the FSA’s changes to the statutory mandatory

minimums and maximums apply to defendants who committed crack cocaine

offenses before the FSA’s August 3, 2010 effective date, but were sentenced after

that date. Dorsey, 567 U.S. at ___, 132 S. Ct. at 2326.

      In United States v. Berry, we addressed the applicability of Amendment 750

and the FSA in the context of a § 3582(c)(2) proceeding. 701 F.3d 374, 376–77

(11th Cir. 2012). In resolving Berry’s appeal, we rejected his argument that he was

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eligible for a sentence reduction under the FSA. Id. at 377. We said that “the FSA

is not a guidelines amendment by the Sentencing Commission, but rather a

statutory change by Congress, and thus it does not serve as a basis for a

§ 3582(c)(2) sentence reduction.” Id.

      More recently, in United States v. Hippolyte, we reaffirmed our holding in

Berry that the Supreme Court’s decision in Dorsey did not suggest that the FSA

should apply to defendants who were sentenced before the FSA’s effective date.

712 F.3d 535, 542 (11th Cir.), cert. denied, 134 S. Ct. 181 (2013). Hippolyte

argued “that the FSA applie[d] in § 3582(c)(2) proceedings, such that the District

Court had the authority to reduce his sentences . . . below the statutory mandatory

minimum.” Id. at 537. The original Guideline range for his offenses was 168 to

210-months imprisonment, below the statutory mandatory minimum terms of 240

months; hence, the Guidelines range for the offenses was 240 months, the statutory

minimum. Id. Amendment 750 would have lowered the Guidelines range a total

of 4 levels, resulting in a range of 108 to 135 months. Id. at 537–38. If the FSA

applied, it would have lowered Hippolyte’s statutory mandatory minimum to 120

months, resulting in a new Guidelines range of 120 to 135 months. Id. at 538. We

rejected Hippolyte’s argument for § 3582(c)(2) relief; due to the effective statutory

mandatory minimum, the amendment to the Guidelines did not actually lower his

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Guidelines range because calculation of the range still took into account the

statutory mandatory minimum. Id. at 540–41. Even assuming that Hippolyte

could bring his § 3582(c)(2) motion, it failed because the FSA did not apply

retroactively to his pre-FSA sentence. Id. at 542. Because the FSA did not apply

to Hippolyte’s case, the statutory minimum that applied was the one that was in

place at the time he was sentenced in 1996. Id.

      In United States v. Liberse, we held that the District Court had authority to

reduce the defendant’s sentence pursuant to § 3582(c)(2) and Amendment 750,

notwithstanding the applicable 120-months mandatory minimum, because his

original applicable guideline range, 121 to 151 months, exceeded the statutory

minimum. 688 F.3d 1198, 1199–1200 (11th Cir. 2012) (“Although Liberse was

subject to a 120-month statutory mandatory minimum, that mandatory minimum

did not affect the calculation of his guidelines range because it was less than the

121-month bottom of the range.” (citing U.S.S.G. § 5G1.1(b)). Liberse was

originally sentenced to 121 months’ imprisonment, but his sentence was later

reduced below his Guidelines range to 97 months pursuant to the Government’s

substantial assistance motion. Id. at 1200. We held that Amendment 750 lowered

the defendant’s Guidelines range to 70 to 87 months. Id. Because Liberse was

subject to a 120-months statutory minimum, his amended Guidelines range

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sentence was 120-months imprisonment, which was lower than his original range.

Id. at 1202. We vacated the District Court’s decision, which had concluded that it

did not have authority to reduce Liberse’s sentence under § 3582(c)(2). Id. at

1203.

        The Supreme Court has provided that “waiver” is the “intentional

relinquishment or abandonment of a known right.” United States v. Olano, 507

U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993) (quoting Johnson

v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938)). “[A]

party’s failure to object to the sentencing court’s findings of facts and conclusions

of law waives any objection for appeal purposes.” United States v. Weir, 51 F.3d

1031, 1032 (11th Cir. 1995). “Under the law of the case doctrine, both the district

court and the court of appeals are bound by findings of fact and conclusions of law

made by the court of appeals in a prior appeal of the same case.” United States v.

Stinson, 97 F.3d 466, 469 (11th Cir. 1996).

        Here, the District Court did not abuse its discretion in denying Ridley’s

§ 3582(c)(2) motion because it correctly concluded that he was ineligible for a

reduction. Under Amendment 750, his Guidelines range would have been lowered

from 262 to 327 months to 240-months.2 But the court lacked the authority to

        2
         Based on his offense conduct relating to 94.2 grams of cocaine base and 4.53 kilograms
of marijuana (the equivalent of 340.91 kilograms of marijuana), Ridley’s total offense level
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further reduce his 210-months sentence below the amended Guidelines range of

240 months. See U.S.S.G. § 1B1.10(b)(2). The FSA’s lowering of the mandatory

minimum sentence does not impact Ridley’s case, because he was sentenced in

1998, before the FSA was enacted, and we have held that the FSA does not apply

retroactively to defendants who were sentenced before the FSA’s effective date.

See Hippolyte, 712 F.3d at 542. Moreover, the FSA does not constitute an

amendment to the Guidelines by the Sentencing Commission and thus, cannot

serve as a basis for a § 3582(c)(2) sentence reduction in Ridley’s case. See Berry,

701 F.3d at 377.

       Ridley’s attempt to distinguish his case from Hippolyte fails, because the

relevant point of law for the purposes of his appeal is simply that the FSA’s lower

mandatory minimums do not apply to defendants sentenced before the FSA’s

effective date. He argues that his case is distinguishable because, when he was

originally sentenced, his sentence was not calculated based on the mandatory

minimum because it fell below his Guideline range, as calculated under § 2D1.1.



would have been 26, instead of 32. See U.S.S.G. § 2D1.1(c)(7) & comment. (n.8(B) & (D)
(indicating that 1 gram of crack cocaine is equivalent to 3,571 grams of marijuana)). After the
various enhancements, his total offense level would have been 30. Accordingly, his Guidelines
range, based on a total offense level of 30 and criminal history category of IV, would have been
135 to 168-months imprisonment. U.S.S.G. Sentencing Table. However, because his offense
carried a statutory mandatory minimum term of 240-months imprisonment, his Guidelines range
became 240 months pursuant to U.S.S.G. § 5G1.1(b).

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This is factually true, but it is irrelevant to the question of whether the court had

the authority to impose a sentence below the amended Guidelines range, which

was determined by operation of the statutory mandatory minimum. Regardless of

how his original sentence was determined, the court did not have the authority to

further reduce it below 210 months because the 240-months mandatory minimum

still applies. See U.S.S.G. § 1B1.10(b)(2). Additionally, Ridley’s case is not

controlled by Liberse because, unlike the defendant in that case, Ridley’s sentence

was not below his Guideline range pursuant to a substantial assistance motion.

See Liberse, 688 F.3d at 1200.

      Moreover, no binding or persuasive authority supports Ridley’s argument

that the Government’s erroneous stipulation in his Amendment 706 proceedings

that he was eligible for a sentence reduction to a sentence below the 240-months

mandatory minimum meant that the mandatory minimum no longer applies to his

case via the waiver or law of the case doctrine. See Weir, 51 F.3d at 1032; Stinson,

97 F.3d at 469. Accordingly, the court did not err in concluding that it lacked the

authority to reduce Ridley’s sentence, and it did not abuse its discretion in denying

his § 3582(c)(2) motion on this basis.

      AFFIRMED.




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