United States v. Wayne Anthony Moore

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 19, 2007
No. 06-10566
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-00348-CR-J-32-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE ANTHONY MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 19, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Wayne Anthony Moore challenges his sentence and argues that the district
court erred when it (1) classified him as a career offender and (2) believed that it
lacked discretion to depart downward. Because Moore’s arguments are barred by
the law of the case, we affirm his sentence.
I. BACKGROUND
Moore was convicted of distribution and possession with intent to distribute
crack cocaine. 18 U.S.C. § 841(a)(1), (b)(1)(B). Moore appealed his sentence,
which was imposed under the mandatory Sentencing Guidelines in violation of
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and we remanded
for resentencing under the advisory Guidelines. United States v. Moore, No. 04-
16237 (11th Cir. July 20, 2005). On remand, the presentence investigation report
(PSI) recommended a base offense level of 28 and a two-level enhancement for
using a minor in the offense. Because Moore had at least two prior convictions for
felonies involving a crime of violence or a controlled substance offense, the PSI
classified Moore as a career offender and set the total offense level at 37.
U.S.S.G. § 4B1.1. Moore’s criminal history category was VI, and the resulting
Guidelines range was 360 months to life.
At the resentencing hearing, Moore referred to his arguments from the first
sentencing, in which he had objected to the career offender enhancement and
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argued that his criminal history category overrepresented the seriousness of his
criminal history, and requested a sentence of 140 months. The court reaffirmed its
rejection of Moore’s arguments from the first sentencing and, after discussing the
section 3553(a) sentencing factors, imposed a sentence of 262 months.
Moore argues that the district court erred when it classified Moore as a
career offender. We rejected this argument in Moore’s first appeal and held that
the career offender enhancement was not constitutional error, because prior
convictions need not be proved to a jury beyond a reasonable doubt. Almendarez-
Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1232-33 (1997);
Booker, 543 U.S. at 244, 125 S. Ct. at 756; United States v. Orduno-Mireles, 405
F.3d 960, 962-63 (11th Cir.), cert. denied, 126 S. Ct. 233 (2005). The law of the
case bars our reconsideration of this issue. See Alphamed, Inc. v. B. Braun Med.,
Inc., 367 F.3d 1280, 1286 n.3 (11th Cir. 2004).
Moore also argues that the district court erroneously believed it lacked the
authority to grant a downward departure. See United States v. Webb, 139 F.3d
1390, 1394-96 (11th Cir. 1998). Because Moore did not raise this issue in his first
appeal, the law of the case also bars our consideration of this issue. United States
v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997).
AFFIRMED.
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