USCA11 Case: 22-14073 Document: 19-1 Date Filed: 07/19/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14073
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY ATKINSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:04-cr-60072-KAM-1
____________________
USCA11 Case: 22-14073 Document: 19-1 Date Filed: 07/19/2023 Page: 2 of 4
2 Opinion of the Court 22-14073
Before JORDAN, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
Gregory Atkinson, proceeding pro se, appeals the district
court’s denial of his motion for a sentence reduction under
18 U.S.C. § 3582(c)(2), pursuant to Amendment 782 to the Sentenc-
ing Guidelines. Atkinson asserts the district court’s finding his of-
fense involved more than 450 kilograms of cocaine—making him
ineligible for relief under Amendment 782—conflicts with the dis-
trict court’s finding at sentencing and this Court’s finding. The
Government responds by moving for summary affirmance, and in
his response to the Government’s motion, Atkinson moves for
summary reversal. After review, we grant the Government’s mo-
tion for summary affirmance and deny Atkinson’s motion for sum-
mary reversal.
The Government is entitled to summary affirmance because
its position is clearly correct as a matter of law. See Groendyke
Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969) 1 (explain-
ing summary disposition is appropriate 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”). First, in At-
kinson’s direct appeal, we held the jury could have reasonably
1 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
USCA11 Case: 22-14073 Document: 19-1 Date Filed: 07/19/2023 Page: 3 of 4
22-14073 Opinion of the Court 3
found that Atkinson was responsible for at least 150 kilograms of
cocaine, and a simple calculation showed the jury could have rea-
sonably found that he was responsible for 912 kilograms of cocaine.
That decision was binding on all subsequent proceedings. See
United States v. Tamayo,
80 F.3d 1514, 1520 (11th Cir. 1996) (stating
the law-of-the-case doctrine explains “[a]n appellate decision binds
all subsequent proceedings in the same case not only as to explicit
rulings, but also as to issues decided necessarily by implication on
the prior appeal”). Likewise, the district court denied Atkinson’s
previous two motions for a sentence reduction under Amendment
782, finding the Amendment did not reduce Atkinson’s Guidelines
range because his conviction exceeded 450 kilograms of cocaine.
Atkinson had the opportunity to appeal either of those findings and
chose not to, so the law-of-the-case doctrine applies and precludes
him from now arguing on appeal the district court erred when it
found that his Guidelines range was not impacted by Amendment
782. United States v. Escobar-Urrego,
110 F.3d 1556, 1560-61 (11th
Cir. 1997) (applying law-of-the-case doctrine in a § 3582(c)(2) ap-
peal because the district court held the defendant accountable for
2,036 grams of cocaine at sentencing and the defendant had the op-
portunity to appeal that finding but chose not to). Therefore, the
district court did not abuse its discretion when it denied Atkinson’s
motion for a sentence reduction under § 3582(c)(2), and the Gov-
ernment’s position is clearly correct as a matter of law. See United
States v. Caraballo-Martinez,
866 F.3d 1233, 1238 (11th Cir. 2017) (re-
viewing for abuse of discretion the district court’s decision to grant
USCA11 Case: 22-14073 Document: 19-1 Date Filed: 07/19/2023 Page: 4 of 4
4 Opinion of the Court 22-14073
or deny a sentence reduction under § 3582(c)(2)); Groendyke
Transp., Inc.,
406 F.2d at 1162.
Therefore, we GRANT the government’s motion for sum-
mary affirmance and DENY Atkinson’s motion for summary rever-
sal. 2
AFFIRMED.
2 To the extent Atkinson argues the district court judge should have recused
himself, he failed to raise the issue of recusal in the district court, and he cannot
establish plain error on appeal. See United States v. Berger,
375 F.3d 1223, 1227
(11th Cir. 2004) (stating when the party seeking recusal failed to request
recusal in the district court, we review for plain error). Atkinson argues only
that the district court judge should recuse himself because he denied Atkin-
son’s motions for a sentence reduction three times, but an adverse judicial rul-
ing is not a valid basis for establishing judicial bias or partiality. See Liteky v.
United States,
510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.”).
