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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12946
Non-Argument Calendar
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D.C. Docket No. 5:12-cr-00005-MW-CJK-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY ANTHONY COLEMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 8, 2019)
Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Troy Coleman appeals the district court’s order vacating his renewed
criminal judgment and re-imposing the same total 154-month sentence, as
previously modified pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the
Sentencing Guidelines, imposed after he pled guilty to drug and firearm offenses.
On appeal, Coleman argues that the district court plainly erred because it based his
original sentence and subsequent § 3582(c)(2) sentencing reduction on a
miscalculated guideline range. Coleman specifically asserts that the district court
relied on an incorrect criminal history score that assigned nine criminal history
points for his three prior Florida youthful-offender convictions (“Drug
Convictions”) and three criminal history points for his prior witness-tampering
conviction (“Witness-Tampering Conviction”).
We ordinarily review a district court’s interpretation of the sentencing
guidelines de novo and its factual determinations for clear error. See United States
v. Monzo,
852 F.3d 1343, 1348 (11th Cir. 2017). But we review sentencing cases
for harmless error when the sentence imposed would remain the same, regardless
of the alleged error. See Williams v. United States,
503 U.S. 193, 203 (1992)
(stating that harmless error is applied to sentencing cases and remand is
unnecessary “[i]f the party defending the sentence persuades the [reviewing court]
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that the district court would have imposed the same sentence absent the erroneous
factor”). “We review for abuse of discretion a district court’s decision not to
reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2)”. United States v. Jules,
595
F.3d 1239, 1241 (11th Cir. 2010). “The district court abuses its discretion if it fails
to apply the proper legal standard or to follow proper procedures in making its
determination.”
Id. at 1242 (quotations omitted). We may affirm the district court
for any reason supported by the record, even if the district court did not consider or
rely on it. United States v. Hall,
714 F.3d 1270, 1271 (11th Cir. 2013).
An argument raised for the first time on appeal is reviewed for plain error.
United States v. Clark,
274 F.3d 1325, 1326 (11th Cir. 2001). To correct an error
under plain-error review, there must be (1) an error, (2) that is plain, (3) that affects
substantial rights. United States v. Olano,
507 U.S. 725, 732-34 (1993). If all
three conditions are met, we may correct the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
McKinley,
732 F.3d 1291, 1296 (11th Cir. 2013). “[W]here the explicit language
of a statute or rule does not specifically resolve an issue, there can be no plain error
where there is no precedent from the Supreme Court or this Court directly
resolving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir.
2003). In most cases, to affect substantial rights, an error must be prejudicial—that
is, it must have impacted the outcome of the district court proceedings. Olano, 507
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U.S. at 734. The Supreme Court has also said that, “in most cases . . . a defendant
sentenced under an incorrect Guidelines range should be able to rely on that fact to
show . . . an effect on [his] substantial rights.” Molina-Martinez v. United States,
136 S. Ct. 1338, 1349 (2016). Still, “[t]here may be instances when, despite
application of an erroneous Guidelines range, a reasonable probability of prejudice
does not exist.”
Id. at 1346.
In calculating a defendant’s criminal history category, the sentencing
guidelines provide, in relevant part, as follows:
(a) Add 3 points for each prior sentence of imprisonment exceeding
one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least
sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b) . . . .
U.S.S.G. § 4A1.1(a)-(c). “The term ‘prior sentence’ means any sentence
previously imposed upon adjudication of guilt,” including by a plea of nolo
contendere.
Id. § 4A1.2(a)(1). “The term ‘sentence of imprisonment’ means a
sentence of incarceration and refers to the maximum sentence imposed.”
Id.
§ 4A1.2(b)(1) & comment. (n.2). A prior sentence of imprisonment exceeding 13
months imposed within 15 years of the offense of conviction, and any other prior
sentence of imprisonment imposed within 10 years of the offense of conviction, is
counted. See
id. § 4A1.2(e)(1)-(2).
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“Prior sentences are always counted separately if the sentences were
imposed for offenses that were separated by an intervening arrest (i.e., the
defendant is arrested for first offense prior to committing the second offense).”
Id.
§ 4A1.2(a)(2). Where there is no intervening arrest, two prior sentences may be
counted as a single sentence if “the sentences resulted from offenses contained in
the same charging instrument” or “the sentences were imposed on the same day.”
Id. We have held that, in determining whether prior sentences are counted
separately, “the first question is always whether the underlying offenses are
separated by an intervening arrest. This inquiry is preliminary to any consideration
of consolidated sentencing . . . .” United States v. Hunter,
323 F.3d 1314, 1322-23
(11th Cir. 2003).
Twelve criminal history points results in a criminal history category of V.
U.S.S.G. Ch.5, Pt.A (sentencing table). A total offense level of 29 and a criminal
history category of V results in a guideline range of 140 to 175 months’
imprisonment.
Id. Nevertheless, the Guidelines provide that, “[w]here 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), 5G1.2, comment. (n.3(B)). In United
States v. Rice, we declined to address whether the district court erred in including a
drug-quantity enhancement, as the defendant’s sentencing range was based on the
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statutorily required mandatory minimum sentence and, therefore, was unaffected
by the alleged error.
43 F.3d 601, 608 n.12 (11th Cir. 1995).
Under Florida law, defendants sentenced as youthful offenders participate in
a basic training program or “boot camp” lasting at least 120 days, not counting time
served prior to the program. Fla. Stat. § 958.045(1), (5)(c). “If the youthful
offender’s performance is satisfactory, the court shall issue an order modifying the
sentence imposed and place the offender on probation subject to the offender
successfully completing the remainder of the basic training program.”
Id.
§ 958.045(5)(c).
We have not addressed in a binding decision how a Florida
youthful-offender sentence modified to probation upon successful completion of
boot camp affects a defendant’s criminal history score. We have held, however,
that youthful-offender convictions may count toward a defendant’s criminal history
score and sentencing enhancements. See United States v. Pinion,
4 F.3d 941, 945
(11th Cir. 1993). In United States v. Wilks, without addressing a modified sentence
of probation, we concluded that a defendant’s Florida youthful-offender
convictions qualified as predicate offenses warranting sentencing enhancements
under the guidelines.
464 F.3d 1240, 1242-43 (11th Cir. 2006). We noted that,
although Wilks’s treatment as a youthful offender had limited his maximum term
of imprisonment and the kind of facility in which he was incarcerated, he was
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nevertheless “treated as an adult criminal, and . . . sentenced to a term of
imprisonment exceeding one year and one month.”
Id. at 1243.
Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the
term of imprisonment of an already incarcerated defendant where the defendant
was sentenced “based on a sentencing range that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 782 provided
for a two-level reduction in the base offense levels for most drug quantities listed
in the Drug Quantity Table in U.S.S.G. § 2D1.1(c). U.S.S.G. App. C., Amend.
782 (2014). In relevant part, Amendment 782 lowered the sentencing guideline
range for drug offenses involving 5 to 15 kilograms of cocaine to a base level of
30, rather than 32.
Id. Notwithstanding that, a court may not reduce a defendant’s
sentence if the retroactive amendment would not actually lower his guideline
range. See U.S.S.G. § 1B1.10, comment. (n.1(A)). The Guidelines specifically
state that a defendant is not eligible for a reduction if “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).”
Id.
The U.S. Supreme Court recently concluded that defendants whose
sentences were based on their mandatory minimums and their substantial
assistance -- not on the guideline range that was subsequently lowered -- are not
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eligible for a sentence reduction under § 3582(c)(2). United States v. Koons,
138
S. Ct. 1783, 1787-89 (2018).
Under the law-of-the-case doctrine, district and appellate courts are
generally bound to follow a prior appellate decision in the same case. Thomas v.
United States,
572 F.3d 1300, 1303 (11th Cir. 2009); Westbrook v. Zant,
743 F.2d
764, 768 (11th Cir. 1984). In general, the law-of-the-case doctrine “operates to
preclude a reexamination of issues decided upon appeal, either by the district court
on remand or by the appellate court itself upon a subsequent appeal.”
Westbrook,
743 F.2d at 768. We have recognized three exceptions to the law-of-the-case
doctrine: in cases where “(1) the evidence on a subsequent trial was substantially
different, (2) controlling authority has since made a contrary decision of the law
applicable to the issue, or (3) the previous decision was clearly erroneous and
would work a manifest injustice.”
Id. at 768-69.
First, Coleman cannot establish that the district court plainly erred in
assigning nine total criminal history points to his Drug Convictions.* Although
they do not speak directly to this issue, both the guidelines and our Court’s
*
Coleman attached to his initial brief a copy of the U.S. Probation Office’s letter that
assessed his eligibility for a sentence reduction, as it was omitted from the district court’s record.
As the parties and the district court relied on the letter, we supplement the record pursuant to Fed.
R. App. P. 10(e)(2)(C) with this document. See Fed. R. App. P. 10(e)(2)(C) (allowing appellate
courts to certify and forward a supplemental record if “anything material to either party is omitted
from . . . the record by error or accident”); see also Ross v. Kemp,
785 F.2d 1467, 1471-72 (11th
Cir. 1986) (supplementing the record under Rule 10(e) where the parties relied on deposition
testimony in their pleadings even though deposition was not filed with district court).
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precedent indicate that Coleman’s original five-year sentences for the 2007 Drug
Convictions were the operative sentences of imprisonment for guidelines-
calculation purposes. Because Coleman’s 5-year sentences on his Drug
Convictions were in excess of 13 months and imposed in 2007—within 15 years of
the underlying 2012 offense of conviction—each conviction resulted in 3 criminal
history points under the Guidelines. See U.S.S.G. §§ 4A1.1(a), 4A1.2(e)(1). As
no binding precedent holds that a Florida youthful-offender sentence does not
count toward a defendant’s criminal history score when the sentence is modified to
probation, the district court did not plainly err in assigning Coleman’s Drug
Convictions nine points.
The district court plainly erred in assigning three criminal history points to
Coleman’s Witness-Tampering Conviction. As the state court imposed the
sentences for the Witness-Tampering Conviction and the Drug Convictions on the
same day, the district court should have treated these two prior sentences as a
single sentence. See U.S.S.G. § 4A1.2(a)(2). Therefore, the district court should
not have assigned points to Coleman’s Witness-Tampering Conviction: which
would have reduced his criminal history score from 15 points to 12 points,
resulting in a criminal history category of V. See U.S.S.G. Ch.5, Pt.A (sentencing
table).
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Still, any error in the district court’s criminal history or guideline
calculations was harmless, as Coleman’s sentencing range was based on the
statutorily required mandatory minimum sentences. See
Williams, 503 U.S. at 203;
Rice, 43 F.3d at 608 n.12. Although the district court referenced Coleman’s
criminal history category and total offense level, the sentencer stated explicitly that
it based Coleman’s advisory guideline range on the statutorily required mandatory
minimum terms of imprisonment.
Second, although not raised by either party, the law-of-the-case doctrine
precludes us from considering Coleman’s argument that the district court
continued to rely on improper criminal history and guideline-range calculations
when it subsequently reduced his sentence pursuant to § 3582(c)(2) and
Amendment 782. As we previously ruled on Coleman’s argument that he should
have received a greater sentence reduction under § 3582(c)(2) because of his
incorrect criminal history score, it has become law of the case. See United States
v. Coleman, 679 F. App’x 969, 971 (11th Cir. 2017);
Thomas, 572 F.3d at 1303.
Thus, to the extent that Coleman seeks to re-appeal the extent of his § 3582(c)(2)
sentence reduction, his appeal on this issue is foreclosed. See Coleman, 679
F. App’x at 971;
Westbrook, 743 F.2d at 768.
To the extent that Coleman argues that the district court’s reliance on an
incorrect criminal history score was not harmless because, if we correct the district
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court’s error and reduce his criminal history category from VI to V, the district
court would have further reduced his sentence under § 3582(c)(2), his argument
still fails: as Coleman cannot establish that the district court’s error affected his
substantial rights. See
Molina-Martinez, 136 S. Ct. at 1346. Even if the district
court were to reconsider the extent of his sentence reduction, pursuant to the
Supreme Court’s decision in Koons, Coleman would be ineligible for a reduction
under § 3582(c)(2) because the district court based his total sentence on the
statutorily required mandatory minimums and his substantial assistance to the
government and did not consider the guideline range subsequently lowered by
Amendment 782. See
Koons, 138 S. Ct. at 1787-89. Accordingly, we affirm
Coleman’s re-imposed total 154-month sentence.
AFFIRMED.
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