United States v. Joseph James Stratton

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 4, 2009
No. 08-15741 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00024-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH JAMES STRATTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 4, 2009)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Joseph Stratton appeals his 100-month imprisonment sentence imposed upon
resentencing for conspiracy to possess with intent to distribute 500 grams or more
of cocaine and 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846and 841(b)(1)(B). After review, we affirm.
I. BACKGROUND
This is Stratton’s third appeal of his sentence. Stratton originally was
sentenced to 292 months’ imprisonment, at the low end of the then-mandatory
guidelines range of 292 to 365 months’ imprisonment. In Stratton’s first appeal,
this Court affirmed Stratton’s conviction, but vacated his sentence and remanded in
light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). United
States v. Thompson, 422 F.3d 1285, 1301-02 (11th Cir. 2005).
On remand, the district court reaffirmed Stratton’s 292 to 365 months’
imprisonment guidelines range, which was now advisory. However, the district
court granted Stratton safety-valve relief under U.S.S.G. § 5C1.2 and reduced
Stratton’s base offense level to 38, resulting in a new advisory guidelines range of
235 to 293 months’ imprisonment. In mitigation, Stratton argued, inter alia, that
his sentence should be lower because of the sentencing disparity between crack
cocaine and powder cocaine offenses. The district court concluded that the
crack/powder cocaine sentencing disparity was not a proper basis for a downward
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variance. After considering the 18 U.S.C. § 3553(a) factors, the district court
imposed a 235-month imprisonment sentence.
In Stratton’s second appeal, Stratton argued that: (1) Booker was
unconstitutional; (2) 21 U.S.C. § 846 was unconstitutional, in light of Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); (3) the district court violated
Booker in “enhancing his sentence based on extra-verdict facts”; (4) Booker’s
remedial holding implicated ex post facto and due process concerns; (5) the district
court’s adherence to the 100:1 crack-to-powder-cocaine ratio in the Sentencing
Guidelines resulted in an unreasonable sentence; and (6) the district court judge’s
failure to sua sponte recuse himself on remand was plain error. See United States
v. Stratton, 205 F. App’x 791, 793-94 & n.1 (11th Cir. 2006) (unpublished). In an
unpublished decision, this Court rejected Stratton’s arguments and affirmed his
sentence. Id.The Supreme Court, however, granted Stratton’s petition for a writ of
certiorari and remanded to this Court for reconsideration in light of its intervening
decision in Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007).
Stratton v. United States, U.S. , , 128 S. Ct. 859, 859 (2008). In
Kimbrough, the Supreme Court concluded that the Sentencing Guidelines’ 100:1
crack-to-powder-cocaine ratio was advisory and that district courts had the
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discretion to consider that sentencing disparity in determining a sentence.
Kimbrough, 552 U.S. at ___, 128 S. Ct. at 574-75. In turn, this Court issued an
opinion affirming and reinstating in part its previous opinion in Stratton’s second
appeal, but vacating and remanding for the limited purpose of resentencing
Stratton in light of Kimbrough. United States v. Stratton, 519 F.3d 1305, 1306-07
(11th Cir. 2008). Specifically, this Court instructed that, because remand was
limited to reconsideration of the § 3553(a) factors under Kimbrough,
Stratton may not re-argue other issues already decided or necessarily
decided during his two prior sentencings that either were affirmed on
direct appeal or could have been, but were not, raised by him during
his direct appeals. However, the district court may, if it wishes to do
so, combine this resentencing proceeding on remand with any
additional proceeding the district court may determine is appropriate
in light of the retroactive application of Amendment 706 to the
crack-cocaine guidelines effective March 3, 2008.
Id. at 1307 (citation omitted).
Before resentencing, Stratton filed an 18 U.S.C. § 3582(c)(2) motion for a
sentence reduction. Stratton based his § 3582(c)(2) motion on Amendment 706,
which had the effect of reducing his base offense level by two levels to 36. The
district court granted the § 3582(c)(2) motion and recalculated Stratton’s advisory
guidelines range (with the amended base offense level of 36) as 188 to 235
months’ imprisonment. However, the district court withheld entry of judgment to
determine at the resentencing hearing whether any further reduction was warranted
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based on Kimbrough.
At the third sentencing hearing, Stratton raised various Booker-related
arguments, including that: (1) any fact used to determine a sentence must satisfy
the requirements of the Fifth and Sixth Amendments; (2) Booker’s remedial
holding was unconstitutional; and (3) application of Booker’s remedial holding to
him violated the Ex Post Fact Clause and his due process rights. Stratton
conceded, however, that these objections exceeded the scope of this Court’s
limited remand.
Stratton requested a sentence below the amended guidelines range, arguing
that the district court should apply a one-to-one ratio, as if there was no disparity
between crack and powder cocaine, for a sentencing range of 78 to 97 months.
The district court stated that, although it believed a sentence below the amended
guidelines range of 188 to 235 months’ imprisonment was appropriate, it was not
prepared to “do a straight one-to-one ratio.” The district court imposed a 100-
month imprisonment sentence. Stratton filed this appeal.
II. DISCUSSION
In this third appeal, Stratton does not challenge the reasonableness of his
third, 100-month imprisonment sentence or the extent of the district court’s
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downward variance pursuant to Kimbrough.1 Instead, Stratton raises the Booker-
type arguments asserted at the third sentencing hearing. Stratton admits that he
already raised these Booker-type arguments in his second appeal to this Court.
Thus, as the district court concluded, these issues are foreclosed by the law-of-the-
case doctrine.2
Under the law-of-the-case doctrine, “[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.” United States v.
Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). Thus, on remand the district court
may not consider matters outside the scope of a limited mandate. United States v.
Davis, 329 F.3d 1250, 1252 (11th Cir. 2003). Furthermore, lower court rulings
that have not been challenged on a first appeal will not be disturbed in a
subsequent appeal. See, e.g., United States v. Escobar-Urrego, 110 F.3d 1556,
1
In the summary of his argument, Stratton’s brief asserts that his sentence is unreasonable
because the district court applied the congressionally-mandated 100:1 crack-to-powder-cocaine
ratio in determining his sentence. However, his appeal brief does not elaborate on this issue in
its legal analysis. Further, this argument is obviously a reference to Stratton’s first resentencing,
which was vacated by the Supreme Court. Stratton’s current 100-month sentence is the result of
a substantial post-Kimbrough downward variance that was imposed only after the district court
granted Stratton’s § 3582(c)(2) motion and recalculated Stratton’s advisory guidelines range, as
modified by Amendment 706. Thus, Stratton’s appeal brief does not appear to challenge the
reasonableness of his current 100-month sentence. In any event, any argument that the district
court failed to consider the disparity between crack and powder cocaine in imposing the 100-
month sentence is without merit.
2
We review de novo whether the district court properly applied the law-of-the-case
doctrine. United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005).
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1560 (11th Cir. 1997); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-83
(11th Cir. 1989). The law-of-the-case doctrine applies unless: (1) new evidence is
presented; (2) there is an intervening change in the controlling law; or (3) the prior
decision was clearly erroneous and will cause manifest injustice. Escobar-Urrego,
110 F.3d at 1561.
As conceded by Stratton, his third appeal raises claims that were raised and
rejected in his second appeal. Specifically, this Court rejected Stratton’s
arguments that: (1) Booker is unconstitutional; (2) § 846 is unconstitutional in light
of Apprendi; (3) the district court violated Apprendi by enhancing his sentence
based on extra-verdict facts; (4) Booker’s remedial holding implicated ex post
facto and due process concerns; and (5) the district court judge’s failure to sua
sponte recuse himself was plain error. Thus, our rejection of these claims is the
law of the case, and Stratton has not shown that any exception to the law-of-the-
case doctrine applies.3
In conclusion, we affirm Stratton’s sentence of 100 months’ imprisonment.
AFFIRMED.
3
Additionally, Stratton’s claims in this third appeal are outside the scope of the limited
mandate issued in his second appeal. This Court’s prior panel opinion instructed the district
court to resentence Stratton in light of Kimbrough and gave the district court the discretion to
address Amendment 706’s changes to the crack cocaine base offense levels in the Sentencing
Guidelines. The district court complied with this Court’s mandate and properly refused to
reconsider Stratton’s Booker-related arguments. Stratton admits that his arguments are barred
and says that he is raising them only to preserve them for review to the Supreme Court.
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