United States v. Norman Leon Burgess , 278 F. App'x 959 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 21, 2008
THOMAS K. KAHN
No. 07-14425
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 91-00300-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORMAN LEON BURGESS,
a.k.a. Shine,
a.k.a. Leon Burgess,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 21, 2008)
Before TJOFLAT, BARKETT and PRYOR , Circuit Judges.
PER CURIAM:
In United States v. Brazel et al., 102 F.3d 1120 (11 th Cir. 1997), we affirmed
appellant’s convictions and sentences for conspiracy to distribute cocaine base and
for use of a firearm during the commission of a drug trafficking crime.1 In United
States v. Burgess (BurgessI), No. 97-3455 (11 th Cir. 1999) (unpublished), we
affirmed the district court’s denial of appellant’s 18 U.S.C. § 3582(c)(2) motion to
reduce his life sentence pursuant to Amendment 505 to the Sentencing Guidelines.
On August 15, 2007, appellant again moved the district court under § 3582(c)(2) to
reduce his life sentence pursuant to Amendment 505, and again the court denied
his motion. He now appeals its ruling, contending that the court , in denying his
first § 3582(c)(2) motion, failed to take into consideration the sentencing factors of
18 U.S.C. § 3553(a) and the Supreme Court’s holding in United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
Booker is inapplicable in § 3582(c)(2) proceedings.2 As for appellant’s §
3582(c)(2) argument, it is barred by the law of the case doctrine. Under that
doctrine, “the trial court and appellate courts are bound by any findings of fact or
conclusions of law made by the appellate court in a prior appeal of the case at
1
Appellant was sentenced to life imprisonment on the conspiracy count and a
consecutive five-year prison sentence on the firearm count.
2
Booker is inapplicable to § 3582(c)(2) motions,” and cannot serve as the basis for
reducing a prisoner’s sentence under § 3582(c)(2). United States v. Moreno, 421 F.3d 1217,
1220 (11th Cir. 2005).
2
issue.” United States v. Burns, 662 F.2d 1378, 1383-84 (11th Cir. 1981) (applying
the law-of-the-case doctrine to this Court’s conclusion, on prior appeal, that the
evidence was sufficient to support the defendants’ guilty verdict). The doctrine
precludes courts from revisiting issues that were decided both explicitly and by
necessary implication in a prior appeal. See Luckey v. Miller, 929 F.2d 618, 621
(11th Cir. 1991) (civil context). Implicit in Burgess I panel’s disposition is the
holding that the district court properly took the § 3553(a) factors into account in
denying appellant § 3582(c)(2) relief.
AFFIRMED.
3