United States v. Nataska Howard , 372 F. App'x 978 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14220 ELEVENTH CIRCUIT
APRIL 14, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-20177-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATASKA HOWARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 14, 2010)
Before BARKETT, HULL and WILSON , Circuit Judges.
PER CURIAM:
Nataska Howard, proceeding pro se, appeals the district court’s denial of her
pro se motion for a reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 706. On appeal, Howard argues that, during trial, her counsel
rendered ineffective assistance for failure to argue that she could not conspire with
herself, and that the jury instructions were improper. Howard also argues that, at
sentencing, her counsel was ineffective for failure to object to the district court’s
determination that she is a career offender based on prior convictions. Further,
Howard contends that her sentence was unreasonable. Lastly, Howard attempts to
show reversible error by making a number of other constitutional challenges.
Upon review of the record and the briefs, we affirm.
I.
“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. James, 548 F.3d 983,
984 (11th Cir. 2008) (per curiam) (citation omitted). A district court may not
modify a previously imposed term of imprisonment unless a defendant was
sentenced based on a sentencing range that has “subsequently been lowered” by the
United States Sentencing Commission. Id.; 18 U.S.C. §§ 3582(c)(2). When
determining whether to modify a defendant’s sentence pursuant to § 3582(c)(2),
the district court it is not permitted to resentence de novo, and “all original
sentencing determinations remain unchanged with the sole exception of the
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guideline range that has been amended since the original sentencing.” United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis in original).
Howard argues that Amendment 706, which revised the Drug Quantity
Table set forth in U.S.S.G. § 2D1.1(c) and reduces by two levels the offense level
for crack cocaine offenses, affords her a reduced sentence. After review of the
record, we find that Howard is not entitled to a sentence reduction. As a Career
Offender, Howard was not sentenced under §2D1.1, but was sentenced under §
4B1.1. Therefore, we find that the district court did not err in holding Howard was
not eligible for a sentence reduction and that Amendment 706 did not affect
Howard’s sentence.
II.
Under the law-of-the-case doctrine, “both the district court and [this Court
is] bound by findings of fact and conclusions of law made by [this Court] 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 a manifest injustice.” United States v. Stinson, 97 F.3d 466, 469 (11th
Cir. 1996) (per curiam) (citation omitted). This Court has recognized the law-of-
the-case doctrine in the context of § 3582(c) motions. United States v.
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Escobar-Urrego, 110 F.3d 1556, 1562 (11th Cir. 1997).
Howard’s arguments that she is not a career offender and that her sentence is
unreasonable are groundless. Howard has already presented these issues before
this Court in United States v. Howard. 252 Fed.Appx. 955. In that appeal, this
Court affirmed the district court’s determination that Howard was a career offender
under U.S.S.G. § 4B1.1, and held that the sentence applied was reasonable. Id. at
959–962. Here, Howard has not presented an argument which falls under the three
exceptions to the law-of-the-case doctrine in her § 3582 motion. Therefore, to the
extent that Howard attempts to argue that she was improperly sentenced as a career
offender and that her sentence was unreasonable, the contentions are foreclosed by
the law-of-the-case doctrine.
III.
Finally, Howard has raised several constitutional challenges to her
underlying conviction and sentence. We reject these arguments for two reasons.
First, Howard has also already argued ineffective assistance of counsel. We
denied Howard’s 28 U.S.C. § 2255 motion for a certificate of appealability
(“COA”) as to this claim stating that Howard failed to make a substantial showing
of the denial of a constitutional right. See CM/ECF for U.S. Dist. Ct. For S.D. Fla,
case no. 1:08-cv-20411. Doc. 29. Howard has nonetheless argued the merits of
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that motion in the instant appeal. We do not address those arguments. See Murray
v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (per curiam) (“[W]e hold
that in an appeal brought by an unsuccessful habeas petitioner, appellate review is
limited to the issues specified in the COA.”).
Second, Howard’s remaining constitutional arguments are not to be
considered within the context of an 18 U.S.C. § 3582 motion. See Bravo, 203 F.3d
at 781. In Bravo, we held that constitutional challenges to a defendant’s sentence
are the sort of “extraneous” issues that are not cognizable under § 3582(c)(2) and
must be pursued through a 28 U.S.C. § 2255 collateral attack. Id. at 782(upholding a district court’s finding that it had no jurisdiction in a § 3582(c)(2)
proceeding to consider the defendant’s constitutional claim that his sentence
constituted cruel and unusual punishment). Thus, we find that a § 3582(c) motion
is not the proper vehicle by which to challenge the constitutionality of a conviction
or sentence. Accordingly, the district court did not err when it denied Howard’s
motion, and we affirm.
AFFIRMED.
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