              Case: 13-11549     Date Filed: 09/12/2013   Page: 1 of 8


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-11549
                           ________________________

                     D.C. Docket No. 2:07-cr-00144-CG-B-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

GUERRIN SAINTIL,
a.k.a. Ernest Maxino,

                                                               Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                          ________________________
                              (September 12, 2013)



Before HULL, JORDAN, and HILL, Circuit Judges.

PER CURIAM:

      Guerrin Saintil appeals the district court’s denial of his pro se motion for a

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 706, 715,
               Case: 13-11549    Date Filed: 09/12/2013   Page: 2 of 8


and 750 to the Sentencing Guidelines. Saintil is currently serving a 292-month

sentence for his conviction for conspiracy to possess with intent to distribute more

than 50 grams of cocaine base, in violation of 21 U.S.C. § 846. At Saintil’s

sentencing hearing, which occurred on December 17, 2007, the district court

sentenced Saintil to a 360-month sentence, explaining in its Statement of Reasons

that Saintil’s base offense level was 38 because he was involved with “at least 4.5

kilograms of crack and an amount of cocaine powder that does not impact the

guidelines.”

      In March 2011, Saintil filed a § 3582(c)(2) motion based on

Amendment 706, which the district court denied because Saintil was sentenced

after the November 1, 2007, effective date of Amendment 706, and, thus, he

received any applicable “reduction” at the time he was sentenced. We summarily

affirmed the district court. Thereafter, in November 2011, Saintil filed a

§ 3582(c)(2) motion based on Amendment 750 to the Sentencing Guidelines and

the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372

(2010). The court granted Saintil’s motion, reducing his sentence to 292 months.

Saintil appealed, but we dismissed that appeal for want of prosecution.

      In June 2012, Saintil filed the instant § 3582(c)(2) motion pursuant to

Amendments 706, 715, and 750. In that motion, Saintil argued that the sentencing

court held him accountable for a quantity of powder cocaine and a quantity of


                                          2
                  Case: 13-11549   Date Filed: 09/12/2013   Page: 3 of 8


cocaine base, and that the quantities of both were 2.25 kilograms. The district

court denied Saintil’s motion, stating that it had already reduced his sentence based

on the FSA and that Saintil was not entitled to a further reduction based on the

arguments presented in his motion. Saintil requested that the district court appoint

him counsel on appeal, but the district court denied this request.

       On appeal, Saintil argues that: (1) the court abused its discretion by

declining to appoint him counsel on appeal; (2) the sentencing court sentenced him

based on 2.25 kilograms of powder cocaine and 2.25 kilograms of cocaine base,

and those quantities correspond to a base offense level of 34; and (3) the FSA’s

statutory minimums should be applied retroactively, and that failing to do so is

unconstitutional because the pre-FSA statutory minimums are racially

discriminatory and violate the Equal Protection Clause. The government has

responded with a motion for summary affirmance and to stay the briefing schedule,

arguing that Saintil already has received the full benefit of all of the retroactive

amendments to the Sentencing Guidelines.

       After a thorough review of the record and consideration of the parties’

filings, we grant the government’s motion for summary affirmance and affirm the

district court.

       Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where


                                           3
               Case: 13-11549     Date Filed: 09/12/2013    Page: 4 of 8


rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969);

see United States v. Martinez, 407 F.3d 1170, 1173-74 (11th Cir. 2005) (construing

the defendant’s “unconventional” motion as a motion for summary reversal,

granting the motion, vacating the defendant’s sentence, and remanding the case for

resentencing where the district court had committed plain error by treating the

Sentencing Guidelines as mandatory).

      We review for an abuse of discretion a district court’s decision whether to

reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) and reviews de novo the

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

Sentencing Guidelines. United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009).

Issues raised for the first time on appeal are reviewed for plain error. United States

v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). We are bound by the opinion of

a prior panel unless the Supreme Court or this Court sitting en banc overrules that

opinion. United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir. 2012). “[T]here

is no statutory or constitutional right to counsel for a § 3582(c)(2) motion or

hearing, [and] the decision to appoint an attorney is left to the discretion of the

district court.” Webb, 565 F.3d at 795. Finally, the law-of-the-case doctrine bars


                                           4
               Case: 13-11549     Date Filed: 09/12/2013   Page: 5 of 8


relitigation of issues that were decided at an earlier stage in the same case,

including “lower court rulings that have not been challenged on a first appeal.”

United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997).

      Pursuant to § 3582(c)(2), a district court may modify a term of imprisonment

that was based on a sentencing range that has subsequently been lowered by the

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

Sentencing Guidelines, effective November 1, 2007, lowered the § 2D1.1 base

offense levels for certain crack cocaine offenses. U.S.S.G. App. C, Amend. 706

(2007). As a result of this amendment, in November 2007, § 2D1.1(c) assigned a

base offense level of 38, the highest possible, in cases involving at least

4.5 kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(1) (2007). Amendment 750

thereafter retroactively lowered the sentencing range applicable to crack cocaine

offenses by further revising the crack cocaine quantity tables listed in § 2D1.1(c).

U.S.S.G. App. C, amend. 750 (2011). Section 2D1.1(c) now assigns a base offense

level of 36 in cases involving at least 2.8 kilograms, but less than 8.4 kilograms, of

crack cocaine. See U.S.S.G. § 2D1.1(c)(2) (2012).

      To determine a base offense level for an offense that involved different

controlled substances, the Guidelines provide that each substance is to be

converted to its marijuana equivalent, the quantities are to be added together, and

then the offense level is to be determined based on reference to the Drug Quantity


                                           5
              Case: 13-11549     Date Filed: 09/12/2013    Page: 6 of 8


Table. See U.S.S.G. § 2D1.1, comment. (n.8(B)) (2012). Amendment 715,

effective May 1, 2008, provided for a two-level reduction in a defendant’s base

offense level if his offense involved both cocaine base and another controlled

substance in order to effectuate the two-level reduction intended by Amendment

706. U.S.S.G. App. C, Amend. 715. Several exceptions applied, including that the

reduction did not apply if the quantity of cocaine base was more than

4.5 kilograms. Id.

      The Supreme Court has held that a sentencing adjustment, pursuant to

§ 3582(c)(2), is not a resentencing proceeding. Dillon v. United States, 560 U.S.

___, ___, 130 S.Ct. 2683, 2690-91, 177 L.Ed.2d 271 (2010) (providing that

§ 3582(c)(2) does not authorize a resentencing, but instead permits a modification

by giving courts the power to reduce a sentence within the narrow bounds

established by the Sentencing Commission). A § 3582(c)(2) proceeding has a

limited scope and purpose, is “not constitutionally compelled,” and represents a

“congressional act of lenity.” Id. at ___, 130 S.Ct. at 2691-92; see also United

States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000) (holding that constitutional

claims are “extraneous resentencing issues” that a court cannot address during a

§ 3582(c)(2) proceeding, and that a defendant is entitled to raise constitutional

challenges to a sentence by making a collateral attack under 28 U.S.C. § 2255).

Rather, all original sentencing determinations remain unchanged, with the sole


                                          6
              Case: 13-11549     Date Filed: 09/12/2013    Page: 7 of 8


exception of the change in the guideline range that has been amended since the

original sentencing. Bravo, 203 F.3d at 781. In a § 3582(c)(2) proceeding, the

district court is bound by its original drug-quantity finding. United States v.

Cothran, 106 F.3d 1560, 1563 n.5 (11th Cir. 1997).

      Although the FSA applies to offenders who committed crack cocaine crimes

before its August 3, 2010, effective date but who are not sentenced until after, it

does not apply to defendants who were sentenced before its enactment. Dorsey v.

United States, 567 U.S. ___, ___, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012);

United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). In Berry, we expressly

rejected the argument that the FSA itself rendered the defendant—who was

originally sentenced in 2002—eligible for § 3582(c)(2) relief. 701 F.3d at 377.

We explained that Dorsey “did not suggest” that the FSA should apply to

defendants who, like Berry, were sentenced long before the FSA’s effective date.

Id.

      The district court did not err by denying Saintil’s § 3582(c)(2) motion

because Saintil was not eligible for a § 3582(c)(2) sentence reduction based on any

of the cited amendments, as (1) he was originally sentenced based on the

Sentencing Guidelines as amended by Amendment 706, (2) Amendment 715 is

inapplicable to him because he was sentenced solely based on cocaine base and not

a combination with another controlled substance, and (3) he already has received a


                                          7
              Case: 13-11549     Date Filed: 09/12/2013   Page: 8 of 8


reduction pursuant to Amendment 750 in prior § 3582(c)(2) proceedings. Saintil’s

arguments on appeal that the district court abused its discretion by declining to

appoint him appellate counsel and that failing to apply the reduced statutory

minimums from the FSA violates the Equal Protection Clause are squarely

foreclosed by our precedent.

      The government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED. The government’s alternate motion

for stay of the briefing schedule is DENIED as moot.

      AFFIRMED.




                                          8
