                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  DEC 5, 2008
                                No. 08-13323                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                      D. C. Docket No. 90-06151-CR-PCH

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

JOE HARDEN,

                                                               Defendant-Appellant.


                          ________________________

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

                               (December 5, 2008)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Joe Harden, a federal prisoner, appeals pro se the district court’s denial of
his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2). We conclude

that the district court correctly determined that Harden was sentenced to a statutory

minimum term of life imprisonment. The district court’s decision foreclosed any

modification of Harden’s sentence under § 3582(c)(2). Accordingly, we AFFIRM.

                                I. BACKGROUND

      In May 1992, the United States District Court for the Southern District of

Florida sentenced Harden to life imprisonment for possession of cocaine base with

intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Harden

appealed his conviction and sentence to us. See United States v. Harden, 37 F.3d

595 (11th Cir. 1994). As we have already detailed the facts concerning Harden’s

conviction and sentence, we need not revisit them here but turn directly to

Harden’s fresh challenge of the district court’s denial of his motion for a reduction

of sentence.

                                 II. DISCUSSION

      Harden contends that the district court erred in determining that he was

originally sentenced to a statutorily-mandated life sentence pursuant to 21 U.S.C.

§ 841(b). In so doing, Harden invites us to reconsider our earlier decision in

Harden. See 37 F.3d at 601-02. Because neither the passage of time nor the

persuasiveness of his argument commands it, we decline Harden’s invitation and



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leave undisturbed our determination that Harden was correctly sentenced to a

statutorily-mandated life sentence.

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

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003). However, in the § 3582(c)(2) context, “we review de novo the

district court’s legal conclusions regarding the scope of its authority under the

Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.

2002) (per curiam). In addition, “[u]nder 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 unless (1) a

subsequent trial produces substantially different evidence, (2) controlling authority

has since made a contrary decision of law applicable to that issue, or (3) the prior

decision was clearly erroneous and would work manifest injustice.” United States

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

      In separate majority opinions, the Supreme Court, in United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), issued both a constitutional and a

remedial holding. With respect to the former, the Supreme Court re-affirmed that

“[a]ny fact (other than a prior conviction) which is necessary to support a sentence



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exceeding the maximum authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Id. at 244, 125 S. Ct. at 756. The Court concluded that this

constitutional holding was incompatible with the mandatory nature of the

guidelines and so made the guidelines advisory. Id. at 245, 258-60, 125 S. Ct. at

756, 764-65. Whereas the Booker Court did not mention § 3582(c)(2), we

subsequently held that Booker does not, by itself, authorize the district court to

reduce a defendant’s sentence under § 3582(c)(2). See United States v. Jones, No.

08-13298, man. op. at 5-6 (11th Cir. Nov. 19, 2008) (per curiam).

      Under § 3582, a district court may not modify a term of imprisonment once

it has been imposed except where expressly permitted by statute or by Federal Rule

of Criminal Procedure 35. 18 U.S.C. § 3582(c)(1)(B). One statutory exception to

this general rule includes relief under § 3582(c)(2), which provides:

      [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 pursuant to 28 U.S.C. 994(o),
      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
      that they are applicable, if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).



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      On 1 November 2007, the Sentencing Commission promulgated

Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).

U.S.S.G. App. C, Amend. 706 (Nov. 2007). The effect of Amendment 706 is to

provide a two-level reduction in base offense levels for certain crack-cocaine

offenses. See id. The Commission made this amendment retroactively applicable,

effective as of 3 March 2008. See U.S.S.G. App. C, Amend. 713 (May 2008)

(listing Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable

amendment). Regarding this amendment’s interaction with § 3582(c)(2), we have

held that “a reduction under § 3582(c)(2) is not authorized where ‘the amendment

. . . is applicable to the defendant but the amendment does not have the effect of

lowering the defendant’s applicable guideline range because of the operation of

another guideline or statutory provision (e.g., a statutory mandatory minimum term

of imprisonment).’” United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir.

2008) (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))). In accordance with

U.S.S.G. § 5G1.1(b), in cases in which “a statutorily required minimum sentence is

greater than the maximum of the applicable guideline range, the statutorily

required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b);

see also United States v. Wiggins, 08-11652, 2008 WL 3972775, at *2 (11th Cir.

Aug. 28, 2008) (per curiam) (noting that “[t]he district court does not have the



                                          5
power to ignore U.S.S.G. § 5G1.1(b) and reduce a prisoner’s sentence to a term

below the mandatory minimum”).

      As we have noted, we previously determined that Harden correctly was

sentenced to the statutory minimum term of life imprisonment. See Harden, 37

F.3d at 599-602. Under the law of the case doctrine, this holding is binding unless:

“(1) a subsequent trial produces substantially different evidence, (2) controlling

authority has since made a contrary decision of law applicable to that issue, or (3)

the prior decision was clearly erroneous and would work manifest injustice.”

Stinson, 97 F.3d at 469. Although Harden argues that Booker and its progeny

constitute new controlling authority, Booker’s writ is generally confined to

consideration of the Sentencing Guidelines and does not run to mandatory statutory

minimums. See, e.g., Booker, 543 U.S. at 258-60 (focusing on the mandatory

nature of the Sentencing Guidelines); Wiggins, 2008 WL 3972775, at *2.

Therefore, Booker does not disturb our holding regarding the applicability of the

statutory minimum to Harden, and it does not qualify this case for an exception to

the law of the case doctrine.

      In his reply brief, Harden also contends that because his indictment did not

specify a drug quantity, the minimum mandatory sentence of life imprisonment

prescribed by 21 U.S.C. § 841(b)(1)(A) is inapplicable. Once again, Harden urges


                                          6
us to revisit familiar territory. We decline his invitation for two reasons. First, we

do not consider arguments that are raised for the first time in a reply brief. United

States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996). Second, Harden raised

this argument in his previous appeal, and we found it to be without merit. See

Harden, 37 F.3d at 601-02.

                                III. CONCLUSION

      Harden appeals the district court’s denial of his motion for a reduction of

sentence under 18 U.S.C. § 3582(c)(2). Because Harden was sentenced to a

statutory minimum term of imprisonment, Amendment 706 did not lower his

applicable guideline range, and, therefore, § 3582(c)(2) did not permit the district

court to reduce his sentence. See Moore, 541 F.3d at 1327-28. Harden’s argument

that Booker, on its own, works to reduce his sentence lacks merit given our

decision in Jones. Accordingly, the district court did not err in denying Harden’s

§ 3582(c)(2) motion. AFFIRMED.




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