                   Case: 12-12952        Date Filed: 09/04/2014   Page: 1 of 11


                                                                                  [PUBLISH]


                     IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE ELEVENTH CIRCUIT
                                   ________________________

                                          No. 12-12952
                                    ________________________

                             D.C. Docket No. 3:96-cr-00074-RV-MD-1

UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                               versus

DARRELL GREEN,
a.k.a. Dred,

                                                                       Defendant-Appellant.

                                    ________________________

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

                                        (September 4, 2014)

Before PRYOR, Circuit Judge, WOOD,* Chief District Judge, and
EDENFIELD,** District Judge.

PRYOR, Circuit Judge:

         This appeal requires us to decide whether, on a motion for a reduced
__________________________
∗
  Honorable Lisa Godbey Wood, Chief United States District Judge for the Southern District of
Georgia, sitting by designation.
**
   Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
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sentence, 18 U.S.C. § 3582(c)(2), a district court may clarify the quantity of drugs

for which it held a defendant accountable at an earlier sentencing hearing. A jury

convicted Darrell Green of one count of conspiracy to possess with the intent to

distribute cocaine base and two counts of possession with the intent to distribute

cocaine base. The district court found at sentencing that Green was responsible for

“certainly well in excess of 10 kilograms” and “far above” 1.5 kilograms of

cocaine base, which was the minimum amount required for a base-offense level of

38. After Green’s second motion for a reduced sentence based on an amendment to

the United States Sentencing Guidelines, the district court clarified that it actually

held Green responsible for 32.1 kilograms of cocaine base. That amount, even after

the amendments, resulted in a base-offense level of 38. Green argues that we

cannot defer to the findings of fact by the district court because they violated the

Sixth Amendment, U.S. Const. Amend. VI, and conflict with an earlier finding of

drug quantity by our Court. We disagree and affirm the denial of Green’s motion

for a reduced sentence.

                                I.   BACKGROUND

      A jury convicted Darrell Green and two codefendants for engaging in a drug

conspiracy and for possession with the intent to distribute cocaine base. 21 U.S.C.

§§ 841(a), (b)(1)(A)(iii), 846. On direct appeal, we vacated their convictions

because the district court abused its discretion with respect to two evidentiary



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rulings, which together amounted to cumulative error that was not harmless. See

United States v. Marshall, 173 F.3d 1312, 1318 (11th Cir. 1999). Two years later,

the United States filed a superseding indictment that included the same charges

from the first trial, but expanded the time period that the defendants allegedly

conspired. The indictment did not specify drug quantity. In the second trial, a jury

convicted Green on one count of conspiracy to possess and two counts of

possession.

      At sentencing, Green objected to the drug quantity that the presentence

investigation report alleged he possessed. The district court overruled Green’s

objections and adopted the findings of the report, but at sentencing clarified its

finding concerning drug quantity:

      . . . I have gone through my trial notes, and with the probation
      officer’s assistance we’ve calculated approximately 35 kilograms of
      crack cocaine identified either directly as drugs or through proceeds
      in the testimony of the witnesses [at] trial.

      . . . [E]ven discounting that . . . by a factor of two, that’s still 17, 18
      kilograms. So, even if you discounted by much more than that, it’s still
      well in excess of 1.5 kilograms.

      The evidence in this trial showed a lot more drug involvement and a
      lot more drugs than the previous trial, and in Mr. Green’s previous
      sentencing I held him accountable for approximately two-and-a-half
      kilograms.

      ...
      So, even if I discount all of that and disregard some of the
      questionable quantities, for example the five ounces that . . . Mr.



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      Black pointed out, it’s still certainly well in excess of 10 kilograms
      and far above the 1.5 kilograms, which is the maximum for a level 38.

(Emphasis added.) The district court then calculated a base-offense level of 38 and

a total-offense level of 46. Based on this total-offense level and Green’s criminal

history, category IV, the district court imposed sentences of life imprisonment for

the conspiracy count and one of the possession counts and a sentence of 480

months of imprisonment on the other possession count, all to be served

concurrently.

      Green appealed his judgment of conviction and sentences. He contended that

the district court violated the Sixth Amendment as interpreted in Apprendi v. New

Jersey, which the Supreme Court decided after his sentencing but before his direct

appeal. 530 U.S. 466, 120 S. Ct. 2348 (2000). Green argued that when the judge,

instead of a jury, found the drug quantity, that finding violated his right to a jury

trial. We agreed that the district court committed plain error, but we concluded that

the error did not “affect[] [Green’s] substantial rights.”

      Green then moved for a reduced sentence after an amendment to the

Guidelines lowered the base-offense level from 38 to 36 for offenses involving at

least 1.5 kilograms but less than 4.5 kilograms of cocaine base. 18 U.S.C.

§ 3582(c)(2); United States Sentencing Guidelines Manual § 2D1.1(c) (Nov.

2011); id. App. C (Vol. III), Amend. 706. The district court denied Green’s




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motion, summarily concluding that “Amendment 706 has no effect upon the

Defendant’s Sentencing Guideline Range.”

      Green appealed to our Court. United States v. Green, 375 F. App’x 944, 945

(11th Cir. 2010). We affirmed the denial of his motion because the effect of the

“amended guidelines range would be the same as his original guidelines range.” Id.

We assumed, for the sake of argument, that Green had calculated his guideline

range correctly: “After Amendment 706, Green’s applicable offense level was

lowered by two to 36 . . . [and] his total offense level was lowered to 44.” Id. But

even that guideline range did not qualify Green for a reduced sentence.

      Undeterred, Green filed a second motion for a reduced sentence, 18 U.S.C. §

3582(c)(2), after another amendment to the Guidelines further lowered the base-

offense levels for most crack cocaine offenses, U.S.S.G. § 2D1.1(c); id. App. C

(Vol. III), Amend. 750; see id. App. C (Vol. III), Amend. 759 (making amendment

750 retroactive). That amendment adjusted the Guidelines so that a defendant who

possessed 8.4 kilograms or more of cocaine base would receive a base-offense

level of 38, a defendant who possessed between 2.8 and 8.4 kilograms would

receive a base-offense level of 36, and a defendant who possessed 1.5 to 2.8

kilograms would receive a base-offense level of 34. Id. App. C (Vol. III), Amend.

750; see also id. App. C (Vol. III), Amend. 748.




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      The district court again denied Green’s motion because he was ineligible for

a reduction under the amended Guidelines. The district court ruled that the

amendment “d[id] not result in change to guideline range and the previous

sentence imposed.” The district court explained that his original sentencing order

did not state a specific finding concerning drug quantity because “[m]ore than

1.5kg of cocaine base’ was all [it] had to determine in 2000 for a base offense level

of 38, which it clearly was, but the actual quantity was much more.” And the

district court then clarified that Green “was actually held accountable at sentencing

for approximately 32.1kg of cocaine base, well over the amount setting a base

offense level of 38.”

                        II.    STANDARDS OF REVIEW

      We review de novo the scope of the legal authority of the district court to

reduce a sentence, 18 U.S.C. § 3582. United States v. White, 305 F.3d 1264, 1267

(11th Cir. 2002). We review for an abuse of discretion the decision to reduce a

sentence based on an amendment of the Guidelines. United States v. Douglas, 576

F.3d 1216, 1218 n.1 (11th Cir. 2009). We review de novo the application of the

law-of-the-case doctrine. United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir.

2005). And we review findings of fact for clear error. United States v. Crawford,

407 F.3d 1174, 1177 (11th Cir. 2005).




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                                III.   DISCUSSION

      A district court may modify a term of imprisonment if an amendment to the

Guidelines lowers the guideline range that governed the sentence, so long as the

reduction is “consistent with applicable policy statements issued by the [United

States] Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The policy statement

that accompanies Amendment 750 states 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). We do not engage in a de novo

resentencing to determine whether the amendment “ha[s] the effect of lowering the

defendant’s applicable guideline range.” Id.; see United States v. Bravo, 203 F.3d

778, 780–81 (11th Cir. 2000). Instead, “all original sentencing determinations

remain unchanged with the sole exception of the guideline range that has been

amended since the original sentencing.” Id. at 781. “And [the] defendant, as the

§ 3582(c)(2) movant, bears the burden of establishing that a retroactive amendment

has actually lowered his guidelines range in his case.” United States v. Hamilton,

715 F.3d 328, 337 (11th Cir. 2013).

      To establish that Amendment 750 lowered his guideline range, Green had to

prove that the district court held him accountable for less than 2.8 kilograms of

cocaine base, but the district court held at sentencing that Green’s offense involved



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a drug quantity “certainly well in excess of 10 kilograms and far above . . . 1.5

kilograms.” The district court later clarified that it held him accountable for

approximately 32.1 kilograms.

      Green argues that we cannot defer to those findings of fact for two reasons.

First, Green argues that we cannot defer to the initial findings of fact or the recent

clarification by the district court concerning drug quantity because those findings

violate the Sixth Amendment. Second, Green argues that our statement in an

earlier appeal that his base-offense level had been lowered from 38 to 36 barred the

district court from making a contrary finding based on the law-of-the-case

doctrine. We address each argument in turn.

          A. We Can Defer to the Findings of Fact by the District Court.

      Green contends that we cannot defer to the findings of fact by the district

court at his original sentencing hearing or the later clarification on his motion for a

reduced sentence because those findings violated the Sixth Amendment, but we

disagree. To be sure, we acknowledged that a jury, not the district court, should

have found the drug quantity before the district court sentenced Green. See

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2363. But we must defer to those findings,

lest the district court resentence him de novo, which is not an available remedy on

a motion for a reduced sentence. See, e.g., Bravo, 203 F.3d at 781.




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      Green also argues that the clarification by the district court that it held Green

accountable for 32.1 kilograms of cocaine base at violated the Sixth Amendment as

interpreted in Apprendi. But that finding, in the context of a motion for a reduced

sentence, does not implicate Apprendi because the finding cannot increase Green’s

sentence. In fact, we have expressly required district courts to make that kind of

finding when considering the effect of an amendment to the Guidelines on a

motion for a reduced sentence. See Hamilton, 715 F.3d at 340. In Hamilton, we

remanded for the district court “to examine the entire record before it at the time of

the original sentencing to see if it can make any further findings that will resolve

the issue of whether 8.4 kilograms or more of crack cocaine should be attributed

to” the defendant. Id. We instructed that “the district court should determine what

drug quantity findings it made, either explicitly or implicitly, at [the defendant]’s

original sentencing hearing,” but should “not enter any new finding that is

inconsistent with a finding it made in the original sentence proceeding.” Id. We

then instructed that, “[o]nce [the district court] makes a drug quantity finding that

is not inconsistent with any finding it made in the original sentence proceeding, the

district court can then use that finding to calculate a new guidelines range based on

Amendment 750.” Id.; see also, e.g., United States v. Wyche, 741 F.3d 1284, 1293

(D.C. Cir. 2014) (“Given the obvious need for additional fact-finding in cases like

these, we join a number of our sister circuits in concluding that a resentencing



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court is permitted to make an independent drug quantity finding if it cannot

determine the defendant’s amended guideline range without doing so.”); United

States v. Anderson, 707 F.3d 973, 974–75 (8th Cir. 2013) (same); United States v.

Hall, 600 F.3d 872, 876 (7th Cir. 2010) (same); United States v. Moore, 582 F.3d

641, 646 (6th Cir. 2009) (same).

         When it considered Green’s motion, the district court acted exactly as we

instructed the district court to act in Hamilton. The district court clarified that it

held Green accountable at sentencing for 32.1 kilograms of cocaine base. After

amendment 750, that amount results in a base-offense level of 38—the same base-

offense level that the district court imposed at sentencing—and carries a sentence

of life imprisonment. The district court did not err when it denied Green’s motion

for a reduced sentence because the amendment did not change Green’s guideline

range.

 B. The Law-of-the-Case Doctrine Does Not Bar the Clarification by the District
                                    Court.
         Green next argues that our statement that Green’s base-offense level “was

lowered by two to 36,” Green, 375 F. App’x at 945, bound the district court under

the law-of-the-case doctrine, but we did not make a finding of fact in his previous

appeal. “[T]he law-of-the-case doctrine bars relitigation of issues that a court

necessarily or by implication decided against the litigant in an earlier appeal.”

Stoufflet v. United States, No. 13-10874, slip op. at 7–8 (11th Cir. July 8, 2014).


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We did not decide that Green’s base-offense level actually changed in his earlier

appeal.

      In Green’s appeal of his first motion for a reduced sentence, we considered

whether an earlier amendment to the Guidelines affected Green’s guideline range,

such that he would be eligible for a reduced sentence. That amendment had

lowered the base-offense level from 38 to 36 for offenses involving more than 1.5

kilograms and less than 4.5 kilograms of cocaine base. U.S.S.G. App. C (Vol. III),

Amend. 706. But that amendment did not affect Green’s guideline range because,

even with the reduction, the Guidelines provided a sentence of life imprisonment.

Green, 375 F. App’x at 945. To be sure, we stated that Green’s base-offense level

“was lowered by two to 36,” id., but our statement, on appellate review, was not a

finding of fact. We assumed, for the purposes of that appeal, that the amendment

lowered Green’s guideline range, as he argued, but we ruled that, even with the

lower offense level, Green’s guideline range remained unchanged. Our

assumption, for the sake of considering Green’s argument, that the amendment had

lowered his base-offense level did not bind the district court when it considered his

second motion for a reduced sentence.

                              IV.    CONCLUSION

      We AFFIRM the denial of Green’s motion for a reduced sentence.




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