United States v. Mickey Pubien

USCA11 Case: 23-10805 Document: 15-1 Date Filed: 07/26/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10805
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICKEY PUBIEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:06-cr-60350-JIC-3
____________________
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2 Opinion of the Court 23-10805
Before WILSON, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
Mickey Pubien, proceeding pro se, appeals the district court’s
denial of his motion for reconsideration as to the court’s previous
denial of his motion for a sentence reduction under the First Step
Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222
(“First Step Act”). The government, in turn, has moved for sum-
mary affirmance.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1161-62 (5th Cir. 1969).
We review a district court’s denial of a motion for reconsid-
eration for an abuse of discretion. United States v. Llewlyn, 879 F.3d
1291, 1294 (11th Cir. 2018). A district court abuses its discretion if
it applies an incorrect legal standard, follows improper procedures
in making the determination, or makes findings of fact that are
clearly erroneous. United States v. Khan, 794 F.3d 1288, 1293 (11th
Cir. 2015). Whether a court complied with a mandate is an issue
of law that we review de novo. See Cambridge Univ. Press v. Albert,
906 F.3d 1290, 1298 (11th Cir. 2018) (reviewing the district court’s
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23-10805 Opinion of the Court 3
interpretation and application of this Court’s mandate in an earlier
appeal).
Under the law of the case doctrine, an appellate court’s find-
ings of fact and conclusions of law are generally binding in all sub-
sequent proceedings in the same case in the trial court or on a later
appeal. This That & the Other Gift & Tobacco, Inc. v. Cobb Cty., 439
F.3d 1275, 1283 (11th Cir. 2006). The mandate rule, which is a spe-
cific application of the law of the case, binds a lower court to exe-
cute the mandate of the higher court without examination or vari-
ance. Albert, 906 F.3d at 1299. A court “may not alter, amend, or
examine the mandate, or give any further relief or review, but must
enter an order in strict compliance with the mandate.” Piambino
v. Bailey, 757 F.2d 1112, 1119 (11th Cir. 1985). There are only three
exceptions to the mandate rule: “(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.” United States v. Stein, 964 F.3d 1313, 1323 (11th
Cir. 2020) (quotation marks omitted).
The Fair Sentencing Act, enacted on August 3, 2010,
amended 21 U.S.C. § 841(b)(1) to reduce the sentencing disparity
between crack and powder cocaine. Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124 Stat. 2372; see Dorsey v. United States, 567
U.S. 260, 268-69 (2012) (detailing the history that led to the enact-
ment of the Fair Sentencing Act, including the Sentencing Com-
mission’s criticisms that the disparity between crack and powder
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4 Opinion of the Court 23-10805
cocaine offenses was disproportional and reflected race-based dif-
ferences). Specifically, § 2(a)(1) raised the quantity of crack cocaine
necessary to trigger a 10-year mandatory minimum sentence from
50 to 280 grams, and § 2(a)(2) raised the quantity threshold to trig-
ger a 5-year mandatory minimum from 5 grams to 28 grams. Fair
Sentencing Act § 2(a)(1)-(2); 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii).
These amendments were not made retroactive to defendants who
were sentenced before the enactment of the Fair Sentencing Act.
United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012).
In 2018, Congress enacted the First Step Act, which made
retroactive for “covered offenses” the statutory penalties enacted
under the Fair Sentencing Act. See First Step Act § 404. Under
§ 404(b) of the First Step Act, “[a] court that imposed a sentence for
a covered offense may . . . impose a reduced sentence as if sections
2 and 3 of the Fair Sentencing Act . . . were in effect at the time the
covered offense was committed.” Id. § 404(b). The statute defines
“covered offense” as “a violation of a Federal criminal statute, the
statutory penalties for which were modified by section 2 or 3 of the
Fair Sentencing Act . . . that was committed before August 3,
2010.” Id. § 404(a). We have explained that crack-cocaine offenses
are “covered offenses” because the Fair Sentencing Act modified
their penalties, while powder-cocaine offenses are not “covered of-
fenses.” United States v. Files, 63 F.4th 920, 922 (11th Cir. 2023). The
First Step Act adds that “[n]o court shall entertain a motion” under
§ 404 for a sentence that “was previously imposed or previously re-
duced in accordance with” sections 2 and 3 of the Fair Sentencing
Act, or “if a previous motion made under this
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23-10805 Opinion of the Court 5
section . . . was . . . denied after a complete review of the motion
on the merits.” Id. § 404(c).
In Denson, we, as our main holding, concluded “that the First
Step Act does not require district courts to hold a hearing with the
defendant present before ruling on a defendant’s motion for a re-
duced sentence under the Act.” 963 F.3d at 1082. As an alternate
and independent holding, we concluded that a sentencing modifi-
cation under the First Step Act is not a critical stage in the proceed-
ings under the two-part test in United States v. Brown, 879 F.3d 1231(11th Cir. 2018), contrary to Denson’s arguments on appeal. Id. at
1088-89. We concluded that the First Step Act does not authorize
a plenary resentencing and instead “is a limited remedy.” Id. at
1089. In so concluding, we reasoned that a district court may “re-
duce a defendant’s sentence only on a covered offense and only as
if sections 2 and 3 of the Fair Sentencing Act were in effect when
he committed the covered offense.” Id. (quotation marks omitted).
We also reasoned that a district court is not free to: (1) recalculate
the defendant’s original Guidelines calculations unaffected by sec-
tions 2 and 3; (2) reduce the defendant’s sentence on the covered
offense based on other changes in the law; or (3) reduce the defend-
ant’s sentences on non-covered offenses. Id. We also referenced
the idea that a § 404(b) motion was a § 3582(c)(1)(B) proceeding.
Id. at 1088.
Under the prior panel precedent rule, “a prior panel’s hold-
ing is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme
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6 Opinion of the Court 23-10805
Court or this court sitting en banc.” United States v. Dudley, 5 F.4th
1249, 1265 (11th Cir. 2021) (quotation marks omitted). However,
the “prior panel precedent rule applies only to holdings, not dicta
in our prior opinions.” United States v. Gillis, 938 F.3d 1181, 1198
(11th Cir. 2019) (quotation marks omitted, emphasis added). “The
holding of a case comprises both the result of the case and those
portions of the opinion necessary to that result.” Id. (quotation
marks omitted). No matter what an opinion says, “the decision can
hold nothing beyond the facts of that case.” Id. (quotation marks
omitted). On the other hand, “dicta is a statement that neither con-
stitutes the holding of a case, nor arises from a part of the opinion
that is necessary to the holding of the case.” Id. (quotation marks
omitted, emphasis added). In other words, “dicta is defined as those
portions of an opinion that are not necessary to deciding the case
then before us.” Id. (quotation marks omitted, emphasis added).
Further, “in this circuit additional or alternative holdings are not
dicta, but instead are as binding as solitary holdings.” Bravo v.
United States, 532 F.3d 1154, 1162 (11th Cir. 2008) (emphasis added).
In Files, we clarified that Denson’s determination that a dis-
trict court may reduce a defendant’s sentence under § 404(b) only
on a “covered offense” and may not change the defendant’s sen-
tences on counts that are not “covered offenses” was a holding and
that this holding was not overruled or undermined to the point of
abrogation by Concepcion. Files, 63 F.4th at 930-31.
Here, we grant summary affirmance as to the district court’s
denial of Pubien’s motion for reconsideration. The court properly
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23-10805 Opinion of the Court 7
determined that it was bound by the mandate rule, as Pubien’s mo-
tion sought to revisit issues that we had previously decided. More-
over, despite Pubien’s erroneous assertion to the contrary, Concep-
cion did not abrogate Denson’s holding that a court may not change
a defendant’s sentence on counts that are not “covered offenses,”
and therefore no exception to the mandate rule applied.
Accordingly, we GRANT the government’s motion for sum-
mary affirmance.
AFFIRMED.