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                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-12945
                              ________________________

                         D.C. Docket No. 5:90-cr-00003-CAR-1

UNITED STATES OF AMERICA,
                                                                           Plaintiff-Appellee,

                                            versus


JERRY JEROME ANDERSON,
                                                                       Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                           _________________________

                                   (November 19, 2014)

Before WILSON and ROSENBAUM, Circuit Judges, and SCHLESINGER,* District
Judge.




       *
          Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
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SCHLESINGER, District Judge:

      Jerry Jerome Anderson appeals the district court’s denial of his second motion

for a sentence reduction based on Amendment 750 of the United States Sentencing

Guidelines (“Sentencing Guidelines” or “U.S.S.G.”) pursuant to 18 U.S.C. §

3582(c)(2). The government argues that the district court did not even have

jurisdiction to consider Anderson’s second motion because he had already fully

litigated one § 3582(c)(2) motion based on Amendment 750. The text of § 3582(c)(2)

is silent on the availability of second or successive motions based on the same

Amendment to the Sentencing Guidelines. Further, this Court has not directly

addressed this issue, and other Circuits that have analyzed this issue are split.

I. BACKGROUND

      In 1990, Jerry Anderson was convicted by a federal jury of the following

counts: (1) conspiracy to possess with intent to distribute cocaine and crack cocaine,

21 U.S.C. §§ 841(a)(1) and 846; (2) possession with intent to distribute cocaine and

crack cocaine, 21 U.S.C. § 841(a)(1); (3) operating a continuing criminal enterprise,

21 U.S.C. § 848; (4) conspiracy to commit money laundering, 18 U.S.C. §

1956(a)(1)(B)(i); and (5)-(7) money laundering, 18 U.S.C. § 1956(a)(1)(B)(i), (2).

Presentence Investigation Report (“PSI”) ¶¶ 1-9. The probation officer in the PSI


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discussed the amount of cocaine and crack cocaine sold during the relevant time

period, and he determined that “at least 56 kilos of crack cocaine alone” were

involved. Id. ¶ 27. Pursuant to the relevant section of the Sentencing Guidelines, an

offense involving 15 kilograms or more of crack cocaine had a base offense level of

42; thus, it was determined that Anderson’s base offense level was 42. Id. ¶ 46. The

probation officer added four points pursuant to U.S.S.G. § 2D1.5, because Anderson

was convicted of operating a continuing criminal enterprise, resulting in a total

offense level of 46. Id. Then, based on an offense level of 46 and a criminal history

category of III, Anderson’s guidelines range was life imprisonment. Id. ¶¶ 59, 70.

      At Anderson’s sentencing hearing in 1991, the district court determined that

at least 15 kilograms of crack cocaine were involved in the operation, and the

evidence would even support a finding of 56 or more kilograms of crack cocaine.

Doc. 241 at 48. But at the least, 15 kilograms of crack cocaine were involved, which

supported the finding that Anderson’s base offense level was 42. Id. at 48-49. The

district court then sentenced Anderson to life imprisonment. Doc. 208.

      In 2006, the district court denied Anderson’s motion to modify his sentence

based on Amendment 505 of the Sentencing Guidelines. Doc. 360. Amendment 505

lowered the maximum base offense level from 42 to 38 for offenses involving certain

quantities of various drugs. Id. at 1. Therefore, Anderson’s base offense level

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became 38, with a four point addition pursuant to U.S.S.G. § 2D1.5, for a total

offense level of 42. Id. The district court recalculated Anderson’s guideline

sentencing range to be 360 months to life imprisonment. Id. However, upon

consideration of the factors set forth in 18 U.S.C. § 3553(a) and specifically taking

note of the amount of drugs involved in the continuing criminal enterprise, the district

court found that the sentence of life imprisonment remained appropriate. Id.

Anderson appealed the district court order, and this Court affirmed. Doc. 371 at 8.

      In 2008, Anderson moved for another sentence reduction pursuant to

Amendment 706. Doc. 375. The district court determined that even after applying

Amendment 706, Anderson’s amended offense level remained 42 and his guidelines

range remained 360 months to life imprisonment—the same range the district court

found applicable after applying Amendment 505 in 2006. Doc. 377. The court thus

denied Anderson’s motion for a sentence reduction. Id. On appeal, the Eleventh

Circuit granted a motion to withdraw by Anderson’s counsel pursuant to Anders v.

California, 386 U.S. 738 (1967), finding no issues of arguable merit and affirming

the denial of Anderson’s motion. Doc. 397.

      This brings us to the present controversy. In November 2011, Anderson filed

another § 3582(c)(2) motion for a sentence reduction based on Amendment 750 of the

Sentencing Guidelines. Doc. 403. Amendment 750, among other things, raised the

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amount of crack cocaine necessary under U.S.S.G. § 2D1.1(c) to receive a base

offense level of 38 from 4.5 kilograms to 8.4 kilograms. See U.S.S.G. app. C, amend.

750. The district court denied the motion, finding that Amendment 750 did not

reduce Anderson’s guidelines range. Docs. 405, 406. Anderson appealed, arguing

that the district court abused its discretion in failing to state its reasons for denying

his motion, in failing to use the 2011 Sentencing Guidelines in calculating his new

guidelines range, and in failing to consider the various factors set forth in 18 U.S.C.

§ 3553(a). Doc. 410 at 2. He also argued that a new PSI and sentencing hearing were

necessary. Id. This Court found that the district court did not abuse its discretion,

noting that Amendment 750 did not effectively reduce Anderson’s guidelines range

since his conviction involved at least 15 kilograms of crack cocaine; Amendment 750

only increased the minimum amount of crack cocaine necessary to receive a base

offense level of 38 from 4.5 kilograms to 8.4 kilograms. Id. at 3-4. Thus, after

adding four points pursuant to U.S.S.G. § 2D1.5, Anderson’s offense level was still

42 with a criminal history of III, which converted to an unchanged guidelines range

of 360 months to life imprisonment. Id. at 4. The Sentencing Guidelines state that

a district court may not modify an imposed term of imprisonment under § 3582(c)(2)

unless the defendant’s guidelines range was subsequently lowered by an Amendment;




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the district court was therefore without authority to reduce Anderson’s sentence. Id.

at 3 (citing U.S.S.G. § 1B1.10(a)(2)(B)).

      In May 2013, Anderson filed the present “Renewed Motion for Reduction of

Sentence” pursuant to 18 U.S.C. § 3582(c)(2). Doc. 415. He argued that the district

court was obligated to recalculate his guidelines range based on the marijuana

equivalents for cocaine and crack cocaine as set forth in U.S.S.G. § 2D1.1 cmt. n.10

(2011), as amended by Amendment 750. Id. at 3-4. He asserted that if the district

court properly used the drug equivalency tables, such a calculation would reduce his

guidelines range from 360 months to life down to 292 to 365 months. Id. at 5.

Anderson further argued that a sentence at the bottom of the guidelines range was

appropriate pursuant to the 18 U.S.C. § 3553(a) factors. Id. at 13-19.

      On June 14, 2013, the district court denied Anderson’s renewed motion without

waiting for the government’s response. Doc. 416. Specifically, the district court

found there to be “no change in circumstance” since the court’s previous ruling that

Amendment 750 did not apply to effectively lower his guidelines range. Id.

Anderson timely appealed, and oral argument took place before this Court on October

16, 2014.

II. DISCUSSION




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      Having considered the parties’ briefs and oral arguments, we note three issues

to be determined on appeal: (1) whether the district court had jurisdiction to consider

Anderson’s renewed 18 U.S.C. § 3582(c)(2) motion based on Amendment 750; (2)

if this Court has jurisdiction, whether Anderson’s renewed motion is precluded by the

law-of-the-case doctrine; and (3) if this Court reaches the merits, whether the district

court erred in determining that Anderson did not qualify for a sentence reduction

under Amendment 750 to the Sentencing Guidelines because it did not have the effect

of lowering his guidelines range. This Court will address each of these issues in turn.

      1. The District Court’s Jurisdiction

      This Court must resolve jurisdictional issues before addressing the merits of

the underlying claims. United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir.

2005). We “review de novo the district court’s legal conclusions regarding the scope

of its authority under the Sentencing Guidelines in a § 3582(c)(2) proceeding.”

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

      The government argues that the district court did not have jurisdiction to even

consider Anderson’s renewed motion because he had already fully litigated—in the

district court and on appeal to the Eleventh Circuit—a motion based on the same

amendment in the Sentencing Guidelines. Appellee’s Brief at 8. Essentially, the

government’s argument is that a federal prisoner may only bring one motion under

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18 U.S.C. § 3582(c)(2) for each amendment in the Sentencing Guidelines that may

apply to reduce the prisoner’s sentence, no matter the outcome of the motion.

      In response, Anderson agrees that generally, district courts do not have

jurisdiction to modify a sentence once it has been imposed. See, e.g., United States

v. Liberse, 688 F.3d 1198, 1201 (11th Cir. 2012). However, he argues that 18 U.S.C.

§ 3582(c) creates a few exceptions to this rule, which grant district courts the

authority to modify prisoners’ terms of imprisonment. Replacement Reply Brief

(“RRB”) at 2-3. The exception at issue in this case concerns “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). Anderson further argues that because there

is no restrictive language in the statute, “[i]f there is a limitation on Mr. Anderson’s

ability to file a renewed motion under § 3582(c)(2), it is a procedural limitation, not

a jurisdictional one.” RRB at 1 (emphasis in original).

      Anderson then proceeds to explain that the government’s argument is incorrect

because, given that the statute is a grant of jurisdiction, it conflicts with the Supreme

Court’s decision in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006). RRB at 3-4. In

Arbaugh, the Supreme Court noted that federal courts sometimes use the term

“jurisdiction” vaguely, which may cause confusion when determining a court’s

subject matter jurisdiction. Arbaugh, 546 U.S. at 510-11. The issue in that case was

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whether a limitation in a statute was jurisdictional in nature or whether it was an

element that went to the merits of the plaintiff’s case. Id. at 510. The Supreme Court

created a “bright line” test and held that Congress must “clearly state[] that a

threshold limitation on a statute’s scope shall count as jurisdictional.” Id. at 515. If

Congress does not clearly articulate its intention to “rank a statutory limitation . . . as

jurisdictional, courts should treat the restriction as nonjurisdictional in character.”

Id. at 516.

       Important for our purposes is the Supreme Court’s emphasis on requiring

Congress to clearly articulate its intentions when creating a jurisdictional limitation.

See id. at 515. We find that § 3582(c)(2) contains no language that places a limitation

on the district court’s jurisdiction to consider successive motions based on the same

amendment to the Sentencing Guidelines. The language of the statute simply states,

     [I]n the case of a defendant who has been sentenced to a term of
     imprisonment based on a sentencing range that has subsequently been
     lowered by the Sentencing Commission . . . , upon motion of the defendant
     or the Director of the Bureau of Prisons, or on its own motion, the court
     may reduce the term of imprisonment after considering the factors set forth
     in section 3553(a) to the extent they are applicable . . . .

18 U.S.C. § 3582(c)(2) (emphasis added). Thus, because there is no clearly expressed

jurisdictional limitation on a district court’s ability to hear successive motions based




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on the same amendment, this Court holds that it would be improper to read one into

the statute.

       This holding agrees with other analogous cases in this Circuit, for whatever

other restrictions may be placed on the district court’s ability to consider a successive

motion based on the same amendment, none of these potential restrictions are

articulated in jurisdictional terms in the statute itself.

       For example, this Court’s decision in United States v. Phillips, 597 F.3d 1190

(11th Cir. 2010), does limit a district court’s authority to entertain a motion for

reconsideration of an order entered pursuant to 18 U.S.C. § 3582(c)(2) in certain

circumstances. In Phillips, the district court granted the prisoner’s motion brought

pursuant to § 3582(c)(2) and subsequently modified his sentence. 597 F.3d at 1191-

93. Then, the government filed a motion for reconsideration of the district court’s

order due to a error in the district court’s calculations—it had used Sentencing

Guidelines from the incorrect year. Id. at 1193-94. The district court granted the

government’s motion for reconsideration roughly five weeks later, setting aside the

prisoner’s new sentence and reimposing the original sentence. Id. On appeal, this

Court ultimately held that 18 U.S.C. § 3582(c)(2) proceedings are to be considered

sentencing proceedings. Id. at 1198. “Accordingly, if a district court grants a

defendant’s § 3582(c)(2) motion, modifies the original sentence, and imposes a

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different term of imprisonment, the district court is again ‘sentencing’ the defendant.”

Id. at 1199. And once a new sentence is imposed pursuant to this statute, then “the

strictures of Rule 35 [of the Federal Rules of Criminal Procedure] apply,” and the

district court only has fourteen days to correct a sentence for clear error. See id.

      At first glance, it appears that Phillips is distinguishable from the present case,

because Anderson’s motion was not granted and he has not been newly sentenced

pursuant to § 3582(c)(2). However, the rationale of Phillips also extends to cases in

which the district court denies a defendant’s § 3582(c)(2) motion on the merits after

considering the § 3553(a) factors. A district court’s denial on the merits is still, in

essence, a new sentence, because in these cases the district court recognizes that the

relevant Sentencing Guidelines Amendment applies to the defendant to reduce his

guidelines range, yet chooses to resentence the defendant to the same term of

imprisonment after considering various factors. Thus, the district court’s authority

to consider a defendant’s successive motion is likewise limited in this circumstance

to Rule 35’s fourteen-day time limitation.

      Nevertheless, a denial on the merits is to be distinguished from a procedural

denial. The distinction is subtle, but it is also important. Not all denials of motions

brought pursuant to § 3582(c)(2) are the same; there is a difference between a district

court’s denial of a motion because the relevant amendment does not even lower the

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defendant’s guidelines range in the first place, and a district court’s denial of a motion

because, while the relevant statute does lower the defendant’s guidelines range, the

court considers the merits of the defendant’s motion based on various factors and

chooses to resentence him to his original sentence. In the former type of case, there

is no new sentence because the statute does not give the district court jurisdiction to

modify a defendant’s sentence—the district court only has this authority if a

defendant’s guidelines range has “subsequently been lowered by the Sentencing

Commission.” See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). Only in the

latter type of case can it be said the district court imposes a sentence, because the

defendant’s guidelines range is lower and the court considers the merits of the

defendant’s motion when deciding what new sentence to impose.

      Thus, this Court must look to the facts of this case to determine what type of

denial is involved. Upon review, the district court denied Anderson’s motion because

the court determined that Amendment 750 did not lower his guidelines range. Doc.

410 at 3-4. In this Court’s previous order affirming the district court’s first order, we

explained that “the district court [did not] err by failing to consider the factors under

18 U.S.C. § 3553(a), because the court was only required to analyze those factors if

it determined that Amendment 750 had the effect of lowering Anderson’s guidelines

range, which it did not.” Id. at 4. Therefore, this Court’s decision in Phillips does

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not apply to the case before it now, and the district court’s jurisdiction was not limited

by the strictures of Federal Rule of Criminal Procedure 35 after it entered the first

order. We now turn to the question of whether the law-of-the-case doctrine

nevertheless applies to Anderson’s successive § 3582(c)(2) motion.1

        2. The Law-of-the-Case Doctrine

        This Court has explained the law-of-the-case doctrine on several occasions.

The doctrine is a rule of practice “ ‘self-imposed by the courts [and] operates to create

efficiency, finality and obedience within the judicial system.’ ” United States v.

Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (quoting Litman v. Mass. Mut. Life Ins.

Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc)). It is not jurisdictional in

nature, and the court’s power is not limited thereby; in other words, “failure to

advance a law-of-the-case objection may mean that the objection is forfeit.” 18B

Wright, Miller & Cooper, Federal Practice & Procedure § 4478, at 668-70 (2d ed.

2002). The doctrine provides that “[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.” Id. This rule encompasses

both “findings of fact [and] conclusions of law made by the appellate court.” United


        1
         In their briefs, the parties analyze a circuit split on the jurisdictional issue, and this Court
recognizes that a circuit split exists. However, we decline to engage in an analysis of the
decisions of our sister circuits because this Court’s own jurisprudence fully resolves the issue.

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States v. Burns, 662 F.2d 1378, 1384 (11th Cir. 1981). There are limited exceptions

to the law-of-the-case doctrine: “where there is new evidence, an intervening change

in controlling law dictat[es] a different result, or the appellate decision, if

implemented, would cause manifest injustice because it is clearly erroneous.” Id.

(citing Litman, 825 F.2d at 1510).

       In this case, the government did not raise the law-of-the-case doctrine on

appeal, and as such, Anderson argues that the government has waived its right to use

it.2 RRB at 7 n.5. Anderson is partially correct; while many procedural doctrines are

waived if not timely raised, the law-of-the-case doctrine may be raised by the court

sua sponte. See, e.g., Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1264 n.3

(11th Cir. 2014) (“Though not invoked by either party, the law-of-the-case doctrine

requires that we follow legal conclusions reached in a prior appellate decision in the

same case.”); see also United States v. Wallace, 573 F.3d 82, 90 n.6 (1st Cir. 2009)

(holding that the appellate court may “raise the law of the case issue sua sponte if we

deem it appropriate” (citations omitted)). Courts have a compelling interest in

continuity, finality, and efficiency both within cases and within the greater judicial



       2
          Generally, the government would be required to raise a procedural doctrine in the
district court, but in this case, the district court entered its order denying Anderson’s successive
motion before the government had an opportunity to respond. Regardless, the government still
failed to raise the doctrine on appeal.

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system, and the law-of-the-case doctrine is an important feature in realizing this goal.

      If this Court chooses to apply the doctrine to this case, it would mean that our

previous findings of fact and conclusions of law decided on Anderson’s first appeal

are binding and constitute the law of the case in all subsequent proceedings. This

Court affirmed the district court’s first denial, holding that the district court

sufficiently stated its reasons for denying the motion, that the district court used the

correct version of the Sentencing Guidelines in calculating Anderson’s new

guidelines range under Amendment 750, that Amendment 750 did not apply to

Anderson based on the amount of crack cocaine for which he was found responsible,

and that the district court did not err in denying Anderson’s request for a new PSI.

Doc. 410 at 3-5.

      If this Court chooses not to apply the doctrine, then this Court may consider

Anderson’s argument, raised for the first time in his successive motion, that the

district court committed error by failing to recalculate his guidelines range using the

marijuana equivalency tables as set forth in U.S.S.G. § 2D1.1 cmt. n.10 (2011), as

amended through Amendment 750. Doc. 415 at 3-4. He asserts that if the district

court had properly used the marijuana equivalents for cocaine and crack cocaine, such

a calculation would result in a reduced guidelines range from 360 months to life down

to 292 to 365 months. Id. at 5.

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      As mentioned previously, one of the exceptions to the law-of-the-case doctrine

is where the appellate decision is clearly erroneous and would create a manifest

injustice if implemented. Burns, 662 F.2d at 1384. If this Court’s previous

holding—which affirmed, inter alia, the district court’s method in calculating

Anderson’s guidelines range—is clearly erroneous and manifestly unjust, then the

law-of-the-case doctrine should not apply.

      It is true that the district court should have used the marijuana equivalency

tables to calculate Anderson’s guidelines range because his conviction involved

multiple drug types (powder cocaine and crack cocaine). However, there is no

manifest injustice to be found, because even though Amendment 750 changed the

marijuana equivalency for crack cocaine, the amendment did not affect Anderson’s

base offense level of 38 because, as the district court previously found, Anderson’s

conviction involved 15 kilograms or more of crack cocaine. U.S.S.G § 2D1.1(c)(1)

(2011); Doc. 360 at 1-2; Doc. 241 at 48-49. Also, “the marihuana equivalency for

any controlled substance is a constant that can be calculated using any threshold in

the Drug Quantity Table,” which means that there is no benefit gained whatsoever in

converting multiple drugs to their marijuana equivalencies. U.S.S.G. app. C, amend.

750 at 394. The 15 kilograms of crack cocaine for which Anderson was found

responsible would not turn into a lesser amount when converted into its marijuana

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equivalent; those who promulgate the Sentencing Guidelines are indeed smarter than

that.   Accordingly, adding the equivalency conversion for powder cocaine to

marijuana would only exacerbate the amount of drugs involved in determining

Anderson’s base offense level.

        In conclusion, any error on the part of the district court was harmless.

Anderson has offered no justification to depart from this Court’s previous order

affirming the district court’s finding that Amendment 750 does not apply to reduce

Anderson’s guidelines range because his conviction involved at least 15 kilograms

of crack cocaine. This holding is the law of the case, and we need not address the

merits of Anderson’s claim further.

III. CONCLUSION

        For the reasons set forth above, we AFFIRM the district court’s order denying

Anderson’s renewed 18 U.S.C. § 3582(c)(2) motion based on Amendment 750 to the

Sentencing Guidelines.




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