                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 12-10465         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 20, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                              D.C. Docket No. 4:94-cr-00006-HLM-14



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                         lPlaintiff - Appellee,

                                               versus

LEONARD HARRIS,
a.k.a. Hootie,

lllllllllllllllllllllllllllllllllllllll                         lDefendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (June 20, 2012)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Leonard Harris, proceeding pro se, appeals the denial of his 18 U.S.C.
§ 3582(c)(2) motion to modify his term of imprisonment. For the reasons that

follow, we affirm.

      After a jury convicted him of one count of conspiracy to possess crack

cocaine with intent to distribute and five counts of possession of crack cocaine

with intent to distribute, Harris was sentenced in November of 1995 to 360

months’ imprisonment. That sentence was at the bottom of the applicable

sentencing guidelines range of 360 months to life. We affirmed Harris’s

conviction and sentence. United States v. Wyatt, 121 F.3d 721 (11th Cir. 1997)

(unpublished table decision).

      In 2008, Harris filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his

sentence based upon Amendment 706 to the sentencing guidelines. The district

court denied that motion on March 24, 2008, finding the Amendment would not

reduce Harris’s applicable guideline range because the sentencing court had held

Harris responsible for more than 4.5 kilograms of crack cocaine. We dismissed

Harris’s appeal, which was not filed until January 2010, as untimely.

      Harris then filed a second § 3582(c)(2) motion to reduce his sentence.

Relying on Amendments 706 and 748, he contended he was entitled to a reduction

because, in rejecting his previous motion, the district court had clearly erred in the

amount of crack cocaine it found the sentencing court had attributed to him. The

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district court construed Harris’s motion as based on Amendments 706 and 7501

and denied relief because (1) Amendment 750 would not lower his applicable

guidelines range and (2) the law-of-the-case doctrine precluded reconsideration

the court’s prior denial of relief under Amendment 706. This is Harris’s appeal.2

       “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).

We review a district court’s ultimate decision not to reduce a sentence based upon

§ 3582(c)(2) for abuse of discretion, and its findings of fact for clear error. United

States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009). A district court is

authorized to reduce a sentence under that provision only if a subsequent

amendment to the sentencing guidelines would lower the defendant’s guidelines

range. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B)

       The district court’s conclusion that it lacked authority to reexamine whether



       1
         Harris accepts the district court’s construction of his motion as based on Amendment
750, rather than Amendment 748.
       2
          Because Harris did not mail his notice of appeal until January 18, 2012 from a judgment
entered on January 3, 2012, Harris’s appeal appears again to be untimely. Fed. R. App. P.
4(b)(1). But the government does not raise the issue of timeliness and has, therefore, abandoned
that argument. See United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010) (“[A]n
objection to an untimely notice of appeal in a criminal case may be forfeited . . . .” (citing United
States v. Lopez, 562 F.3d 1309, 1304 (11th Cir. 2009)).

                                                  3
Harris was entitled to relief under Amendment 706 was correct. The court

previously had rejected an identical motion based upon the same Amendment and

that decision became final when Harris failed timely to appeal it. For that reason,

the district court’s March 2008 ruling that Amendment 706 provided no basis for

reducing Harris’s sentence is the law of this case. And Harris has offered no

justification to depart from that binding determination. See United States v.

Escobar-Urrego, 110 F.3d 1556, 1560-61 (11th Cir. 1997) (stating that a district

court’s decision of an issue not challenged on appeal binds subsequent district and

circuit courts addressing the same case absent a substantial change in evidence or

applicable law, or a demonstration that the previous findings were clearly

erroneous and manifestly unjust).3

       Harris’s assertion that he was entitled to a reduced sentence under

Amendment 750 because the district court’s decision of the amount of crack

cocaine attributed to him for sentencing purposes was wrong is, likewise,


       3
          Although Harris contests the amount of crack cocaine the district court found was
attributed to him at sentencing in ruling on his prior § 3582(c)(2) motion based on Amendment
706, we do not believe that finding was clearly erroneous. It is true that the sentencing court
never expressly stated that Harris was responsible for more than 4.5 kilograms of crack. But the
sentencing court found that Harris sold in excess of one kilogram per week for several months,
which resulted in an offense level of 38 based upon “[a]t least 1.5 KG of Cocaine Base.”
U.S.S.G. § 2D1.1(c) (1994). Harris’s argument that he was only held responsible for 1.5
kilograms of cocaine ignores the basis for the sentencing court’s calculation and fails to
demonstrate that the district court clearly erred in finding that his sentence was based upon his
distribution of more than 4.5 kilograms.

                                                4
foreclosed by the law-of-the-case doctrine. Id. at 1557, 1560-61 (holding that

because “the question of how much usable cocaine [defendant] imported ha[d]

already been decided” by district court and never appealed, the defendant was

“barred by the law-of-the-case doctrine from relitigating the issue” in sentence

reduction proceedings). In addressing Harris’s previous § 3582(c)(2) motion, the

district court found that Harris was held responsible for 4.5 kilograms, a finding

Harris failed timely to challenge on appeal. With that amount, Harris’s offense

level when Amendment 750 is applied is reduced by only two points to 36.

U.S.S.G. § 2D1.1(c). When the two-level increase for Harris’s possession of a

firearm is added and paired with his criminal history category of V, Harris’s

guidelines range is 360 months to life, the same guidelines range under which he

was originally sentenced. See Id. § 2D1.1(b)(1) (firearm increase); U.S.S.G. Ch. 5,

Pt. A (1994) (sentencing table).

      Because Amendment 750 would not reduce his sentencing guidelines range,

Harris was not entitled to a reduction in his term of imprisonment under

§ 3582(c)(2). See United States v. James, 548 F.3d 983, 985 (11th Cir. 2008)

(“[W]here a retroactively applicable guideline amendment reduces a defendant’s

base offense level, but does not alter the sentencing range upon which his or her

sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”

                                          5
(internal quotation marks omitted)).

      AFFIRMED.




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