[DO NOT PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 12-10465
`Non-Argument Calendar
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`JUNE 20, 2012
`JOHN LEY
`CLERK
`
` D.C. Docket No. 4:94-cr-00006-HLM-14
`
`UNITED STATES OF AMERICA,
`
`lllllllllllllllllllllllllllllllllllllll
`
`lPlaintiff - Appellee,
`
`versus
`
`LEONARD HARRIS,
`a.k.a. Hootie,
`
`lllllllllllllllllllllllllllllllllllllll
`
`lDefendant - Appellant.
`
`________________________
`
` Appeal from the United States District Court
` for the Northern District of Georgia
` ________________________
`
`(June 20, 2012)
`
`Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
`
`PER CURIAM:
`
`Leonard Harris, proceeding pro se, appeals the denial of his 18 U.S.C.
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 12-10465
`Non-Argument Calendar
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`JUNE 20, 2012
`JOHN LEY
`CLERK
`
` D.C. Docket No. 4:94-cr-00006-HLM-14
`
`UNITED STATES OF AMERICA,
`
`lllllllllllllllllllllllllllllllllllllll
`
`lPlaintiff - Appellee,
`
`versus
`
`LEONARD HARRIS,
`a.k.a. Hootie,
`
`lllllllllllllllllllllllllllllllllllllll
`
`lDefendant - Appellant.
`
`________________________
`
` Appeal from the United States District Court
` for the Northern District of Georgia
` ________________________
`
`(June 20, 2012)
`
`Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
`
`PER CURIAM:
`
`Leonard Harris, proceeding pro se, appeals the denial of his 18 U.S.C.
`
`
`
`§ 3582(c)(2) motion to modify his term of imprisonment. For the reasons that
`
`follow, we affirm.
`
`After a jury convicted him of one count of conspiracy to possess crack
`
`cocaine with intent to distribute and five counts of possession of crack cocaine
`
`with intent to distribute, Harris was sentenced in November of 1995 to 360
`
`months’ imprisonment. That sentence was at the bottom of the applicable
`
`sentencing guidelines range of 360 months to life. We affirmed Harris’s
`
`conviction and sentence. United States v. Wyatt, 121 F.3d 721 (11th Cir. 1997)
`
`(unpublished table decision).
`
`In 2008, Harris filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his
`
`sentence based upon Amendment 706 to the sentencing guidelines. The district
`
`court denied that motion on March 24, 2008, finding the Amendment would not
`
`reduce Harris’s applicable guideline range because the sentencing court had held
`
`Harris responsible for more than 4.5 kilograms of crack cocaine. We dismissed
`
`Harris’s appeal, which was not filed until January 2010, as untimely.
`
`Harris then filed a second § 3582(c)(2) motion to reduce his sentence.
`
`Relying on Amendments 706 and 748, he contended he was entitled to a reduction
`
`because, in rejecting his previous motion, the district court had clearly erred in the
`
`amount of crack cocaine it found the sentencing court had attributed to him. The
`
`2
`
`
`
`district court construed Harris’s motion as based on Amendments 706 and 7501
`
`and denied relief because (1) Amendment 750 would not lower his applicable
`
`guidelines range and (2) the law-of-the-case doctrine precluded reconsideration
`
`the court’s prior denial of relief under Amendment 706. This is Harris’s appeal. 2
`
`“We review de novo the district court’s legal conclusions regarding the
`
`scope of its authority under the Sentencing Guidelines in a § 3582(c)(2)
`
`proceeding.” United States v. Douglas, 576 F.3d 1216, 1218 n.1 (11th Cir. 2009).
`
`We review a district court’s ultimate decision not to reduce a sentence based upon
`
`§ 3582(c)(2) for abuse of discretion, and its findings of fact for clear error. United
`
`States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009). A district court is
`
`authorized to reduce a sentence under that provision only if a subsequent
`
`amendment to the sentencing guidelines would lower the defendant’s guidelines
`
`range. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B)
`
`The district court’s conclusion that it lacked authority to reexamine whether
`
` Harris accepts the district court’s construction of his motion as based on Amendment
`1
`750, rather than Amendment 748.
`
` Because Harris did not mail his notice of appeal until January 18, 2012 from a judgment
`2
`entered on January 3, 2012, Harris’s appeal appears again to be untimely. Fed. R. App. P.
`4(b)(1). But the government does not raise the issue of timeliness and has, therefore, abandoned
`that argument. See United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010) (“[A]n
`objection to an untimely notice of appeal in a criminal case may be forfeited . . . .” (citing United
`States v. Lopez, 562 F.3d 1309, 1304 (11th Cir. 2009)).
`
`3
`
`
`
`Harris was entitled to relief under Amendment 706 was correct. The court
`
`previously had rejected an identical motion based upon the same Amendment and
`
`that decision became final when Harris failed timely to appeal it. For that reason,
`
`the district court’s March 2008 ruling that Amendment 706 provided no basis for
`
`reducing Harris’s sentence is the law of this case. And Harris has offered no
`
`justification to depart from that binding determination. See United States v.
`
`Escobar-Urrego, 110 F.3d 1556, 1560-61 (11th Cir. 1997) (stating that a district
`
`court’s decision of an issue not challenged on appeal binds subsequent district and
`
`circuit courts addressing the same case absent a substantial change in evidence or
`
`applicable law, or a demonstration that the previous findings were clearly
`
`erroneous and manifestly unjust).3
`
`Harris’s assertion that he was entitled to a reduced sentence under
`
`Amendment 750 because the district court’s decision of the amount of crack
`
`cocaine attributed to him for sentencing purposes was wrong is, likewise,
`
` Although Harris contests the amount of crack cocaine the district court found was
`3
`attributed to him at sentencing in ruling on his prior § 3582(c)(2) motion based on Amendment
`706, we do not believe that finding was clearly erroneous. It is true that the sentencing court
`never expressly stated that Harris was responsible for more than 4.5 kilograms of crack. But the
`sentencing court found that Harris sold in excess of one kilogram per week for several months,
`which resulted in an offense level of 38 based upon “[a]t least 1.5 KG of Cocaine Base.”
`U.S.S.G. § 2D1.1(c) (1994). Harris’s argument that he was only held responsible for 1.5
`kilograms of cocaine ignores the basis for the sentencing court’s calculation and fails to
`demonstrate that the district court clearly erred in finding that his sentence was based upon his
`distribution of more than 4.5 kilograms.
`
`4
`
`
`
`foreclosed by the law-of-the-case doctrine. Id. at 1557, 1560-61 (holding that
`
`because “the question of how much usable cocaine [defendant] imported ha[d]
`
`already been decided” by district court and never appealed, the defendant was
`
`“barred by the law-of-the-case doctrine from relitigating the issue” in sentence
`
`reduction proceedings). In addressing Harris’s previous § 3582(c)(2) motion, the
`
`district court found that Harris was held responsible for 4.5 kilograms, a finding
`
`Harris failed timely to challenge on appeal. With that amount, Harris’s offense
`
`level when Amendment 750 is applied is reduced by only two points to 36.
`
`U.S.S.G. § 2D1.1(c). When the two-level increase for Harris’s possession of a
`
`firearm is added and paired with his criminal history category of V, Harris’s
`
`guidelines range is 360 months to life, the same guidelines range under which he
`
`was originally sentenced. See Id. § 2D1.1(b)(1) (firearm increase); U.S.S.G. Ch. 5,
`
`Pt. A (1994) (sentencing table).
`
`Because Amendment 750 would not reduce his sentencing guidelines range,
`
`Harris was not entitled to a reduction in his term of imprisonment under
`
`§ 3582(c)(2). See United States v. James, 548 F.3d 983, 985 (11th Cir. 2008)
`
`(“[W]here a retroactively applicable guideline amendment reduces a defendant’s
`
`base offense level, but does not alter the sentencing range upon which his or her
`
`sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”
`
`5
`
`
`
`(internal quotation marks omitted)).
`
`AFFIRMED.
`
`6
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