United States v. Kenneth Gregory Smith , 356 F. App'x 317 ( 2009 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                 FILED
    U.S. COURT OF APPEALS
    No. 09-13740                ELEVENTH CIRCUIT
    Non-Argument Calendar            DECEMBER 14, 2009
    ________________________           THOMAS K. KAHN
    CLERK
    D. C. Docket No. 91-06159-CR-KMM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    KENNETH GREGORY SMITH,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (December 14, 2009)
    Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
    PER CURIAM:
    Kenneth Gregory Smith, through counsel, appeals the district court’s denial
    of his second motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2),
    after his initial § 3582(c)(2) motion was granted and affirmed on appeal.         He
    argues that he should receive a further § 3582(c)(2) sentence reduction based on
    Amendment 706, because the United States Department of Justice (“DOJ”) has a
    new position on the disparity between sentences of crack cocaine and powder
    cocaine, and his amended sentence is therefore unreasonable. After careful review,
    we affirm.
    We review “de novo a district court’s conclusions about the scope of its
    legal authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 
    548 F.3d 1366
    , 1368 (11th Cir. 2008), cert. denied, 
    129 S. Ct. 1657
    (2009). We review for
    abuse of discretion a district court’s decision whether to reduce a sentence pursuant
    to § 3582(c)(2). 
    Id. n.1. A
    district court may modify a term of imprisonment in the
    case of a defendant who was sentenced based on a guideline range that the
    Sentencing Commission subsequently lowered.          18 U.S.C. § 3582(c)(2).       A
    § 3582(c)(2) motion to reduce sentence does not provide the basis for a de novo
    re-sentencing. United States v. Moreno, 
    421 F.3d 1217
    , 1220 (11th Cir. 2005).
    We find no merit in Smith’s claim that he should receive an additional §
    3582(c)(2) reduction to his sentence under Amendment 706, based on a statement
    that Lanny A. Breuer, a DOJ Assistant Attorney General, made before the United
    States Senate Committee on the Judiciary Subcommittee on Crime and Drugs on
    April 29, 2009, that would reduce the severity of Smith’s crack cocaine offense.
    2
    Importantly, the law of the case doctrine applies here, since the district court
    previously granted Smith a § 3582(c)(2) reduction in this case, which this Court
    affirmed, upon finding that the district court had adequately weighed the § 3553(a)
    factors and sentenced Smith accordingly to the high-end of his guideline range.
    Under the law of the case doctrine, we are “bound by findings of fact and
    conclusions of law” that we previously made in 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).
    None of the exceptions to the law of the case doctrine apply here. First,
    Breuer’s statement does not constitute new evidence or controlling authority under
    the first exception, because it was not produced in a subsequent trial. See 
    id. Furthermore, controlling
    authority has not made Breuer’s statement “a contrary
    decision of law applicable to that issue,” so it does not satisfy the second
    exception.   See 
    id. To the
    contrary, Breuer’s statement was merely a policy
    statement that he made to a Senate Committee with the hope that the sentencing
    disparity would be eliminated between crack cocaine and powder cocaine offenses.
    3
    Lastly, under the law, our prior decision was not “clearly erroneous” and would not
    “work manifest injustice.” See 
    id. Therefore, the
    district court did not err in denying Smith’s second
    § 3582(c)(2) motion because he was not entitled to a further reduction. See United
    States v. Webb, 
    565 F.3d 789
    , 793 (11th Cir. 2009) (holding that a court need not
    consider the § 3553(a) factors if a defendant is not eligible for § 3582(c)(2) relief).
    AFFIRMED.
    4
    

Document Info

Docket Number: 09-13740

Citation Numbers: 356 F. App'x 317

Judges: Marcus, Per Curiam, Tjoflat, Wilson

Filed Date: 12/14/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023