The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 5, 2008
No. 08-13323 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 90-06151-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE HARDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 5, 2008)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Joe Harden, a federal prisoner, appeals pro se the district court’s denial of
his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2). We conclude
that the district court correctly determined that Harden was sentenced to a statutory
minimum term of life imprisonment. The district court’s decision foreclosed any
modification of Harden’s sentence under § 3582(c)(2). Accordingly, we AFFIRM.
I. BACKGROUND
In May 1992, the United States District Court for the Southern District of
Florida sentenced Harden to life imprisonment for possession of cocaine base with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Harden
appealed his conviction and sentence to us. See United States v. Harden, 37 F.3d
595 (11th Cir. 1994). As we have already detailed the facts concerning Harden’s
conviction and sentence, we need not revisit them here but turn directly to
Harden’s fresh challenge of the district court’s denial of his motion for a reduction
of sentence.
II. DISCUSSION
Harden contends that the district court erred in determining that he was
originally sentenced to a statutorily-mandated life sentence pursuant to 21 U.S.C.
§ 841(b). In so doing, Harden invites us to reconsider our earlier decision in
Harden. See 37 F.3d at 601-02. Because neither the passage of time nor the
persuasiveness of his argument commands it, we decline Harden’s invitation and
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leave undisturbed our determination that Harden was correctly sentenced to a
statutorily-mandated life sentence.
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003). However, in the § 3582(c)(2) context, “we review de novo the
district court’s legal conclusions regarding the scope of its authority under the
Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.
2002) (per curiam). In addition, “[u]nder the law of the case doctrine, both the
district court and the court of appeals are bound by findings of fact and conclusions
of law made by the court of appeals in a prior appeal of 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) (per curiam).
In separate majority opinions, the Supreme Court, in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), issued both a constitutional and a
remedial holding. With respect to the former, the Supreme Court re-affirmed that
“[a]ny fact (other than a prior conviction) which is necessary to support a sentence
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exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Id. at 244, 125 S. Ct. at 756. The Court concluded that this
constitutional holding was incompatible with the mandatory nature of the
guidelines and so made the guidelines advisory. Id. at 245, 258-60, 125 S. Ct. at
756, 764-65. Whereas the Booker Court did not mention § 3582(c)(2), we
subsequently held that Booker does not, by itself, authorize the district court to
reduce a defendant’s sentence under § 3582(c)(2). See United States v. Jones, No.
08-13298, man. op. at 5-6 (11th Cir. Nov. 19, 2008) (per curiam).
Under § 3582, a district court may not modify a term of imprisonment once
it has been imposed except where expressly permitted by statute or by Federal Rule
of Criminal Procedure 35. 18 U.S.C. § 3582(c)(1)(B). One statutory exception to
this general rule includes relief under § 3582(c)(2), which provides:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
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On 1 November 2007, the Sentencing Commission promulgated
Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, Amend. 706 (Nov. 2007). The effect of Amendment 706 is to
provide a two-level reduction in base offense levels for certain crack-cocaine
offenses. See id. The Commission made this amendment retroactively applicable,
effective as of 3 March 2008. See U.S.S.G. App. C, Amend. 713 (May 2008)
(listing Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable
amendment). Regarding this amendment’s interaction with § 3582(c)(2), we have
held that “a reduction under § 3582(c)(2) is not authorized where ‘the amendment
. . . is applicable to the defendant but the amendment does not have the effect of
lowering the defendant’s applicable guideline range because of the operation of
another guideline or statutory provision (e.g., a statutory mandatory minimum term
of imprisonment).’” United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir.
2008) (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))). In accordance with
U.S.S.G. § 5G1.1(b), in cases in which “a statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b);
see also United States v. Wiggins, 08-11652, 2008 WL 3972775, at *2 (11th Cir.
Aug. 28, 2008) (per curiam) (noting that “[t]he district court does not have the
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power to ignore U.S.S.G. § 5G1.1(b) and reduce a prisoner’s sentence to a term
below the mandatory minimum”).
As we have noted, we previously determined that Harden correctly was
sentenced to the statutory minimum term of life imprisonment. See Harden, 37
F.3d at 599-602. Under the law of the case doctrine, this holding is binding 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.”
Stinson, 97 F.3d at 469. Although Harden argues that Booker and its progeny
constitute new controlling authority, Booker’s writ is generally confined to
consideration of the Sentencing Guidelines and does not run to mandatory statutory
minimums. See, e.g., Booker, 543 U.S. at 258-60 (focusing on the mandatory
nature of the Sentencing Guidelines); Wiggins, 2008 WL 3972775, at *2.
Therefore, Booker does not disturb our holding regarding the applicability of the
statutory minimum to Harden, and it does not qualify this case for an exception to
the law of the case doctrine.
In his reply brief, Harden also contends that because his indictment did not
specify a drug quantity, the minimum mandatory sentence of life imprisonment
prescribed by 21 U.S.C. § 841(b)(1)(A) is inapplicable. Once again, Harden urges
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us to revisit familiar territory. We decline his invitation for two reasons. First, we
do not consider arguments that are raised for the first time in a reply brief. United
States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996). Second, Harden raised
this argument in his previous appeal, and we found it to be without merit. See
Harden, 37 F.3d at 601-02.
III. CONCLUSION
Harden appeals the district court’s denial of his motion for a reduction of
sentence under 18 U.S.C. § 3582(c)(2). Because Harden was sentenced to a
statutory minimum term of imprisonment, Amendment 706 did not lower his
applicable guideline range, and, therefore, § 3582(c)(2) did not permit the district
court to reduce his sentence. See Moore, 541 F.3d at 1327-28. Harden’s argument
that Booker, on its own, works to reduce his sentence lacks merit given our
decision in Jones. Accordingly, the district court did not err in denying Harden’s
§ 3582(c)(2) motion. AFFIRMED.
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