Eleventh Circuit Holds Motion for Reduced Sentence Properly Denied When Factual Findings Place Defendant Within Sentencing Range

In United States v. Darrell Green, No. 12-12952 (Sept. 4, 2014), the Eleventh Circuit yielded to the district court’s findings of fact and held that Defendant’s second motion to reduce sentencing was properly denied because amendments  to the United States Sentencing Guidelines did not alter the sentencing range within which he was placed according to the amount of cocaine base that he possessed with the intent to distribute.

Darrell Green was convicted by a jury for engaging in a drug conspiracy and for possession with intent to distribute cocaine base.  After the Eleventh Circuit vacated the convictions on appeal because of the district court’s abuse of discretion regarding two evidentiary rulings, the United States filed a superseding indictment with the same charges that failed to specify drug quantity.  In that trial, the jury convicted Green of one count of conspiracy to possess and two counts of possession.  The district court overruled Green’s objection to the drug quantity and stated at sentencing that the amount of cocaine base was “certainly well in excess of 10 kilograms and far above 1.5 kilograms … which [is] the minimum amount required for a base-offense level of 38.”  After the court sentenced Green to life imprisonment and 480 months of imprisonment to be served concurrently, Green appealed his judgment of convictions and sentences, contending that the district court violated the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000), which the Supreme Court decided after his sentencing but before his direct appeal.  In that appeal, the Eleventh Circuit affirmed the denial of his motion because the effect of the “amended guidelines range would be the same as his original guidelines range.”  United States v. Green, 375 F. App’x 944, 945 (11th Cir. 2010).  Green then filed a second motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) after another amendment to the Guidelines further lowered the base-offense levels for most crack cocaine offenses.  The district court again denied Green’s motion, ruling that the amendment did not result in a change to the guideline range and the previous sentence imposed, and the court clarified that Green was actually held accountable at sentencing for approximately 32.1kg of cocaine base, well over the amount setting a base offense level of 38.

On appeal of that denial, Green argued that the appellate court cannot defer to the district court’s findings of facts because doing so violated the Sixth Amendment and the law-of-the-case doctrine must be applied to the Eleventh Circuit’s statement from Green’s first appeal that the offense level had been lowered from 38 to 36.  In answering Green’s first contention, the Eleventh Circuit acknowledged that the jury should have found the drug quantity but was compelled to defer to the district court’s findings, lest the district court resentence him de novo, which is not an available remedy on a motion for reduced sentences. The court further reasoned that the factual finding of the lower court did not implicate Apprendi because the district court’s clarification of the amount of cocaine base as 32.1kg results in a base-offense level of 38.  Even under the Apprendi amendment, this offense level carries a sentence of life imprisonment, the same sentence that the district court had originally awarded.

In answering Green’s second contention, the Eleventh Circuit acknowledged that the law-of-the-case doctrine bars relitigation of issues that the court necessarily or by implication decided against the litigant in an earlier appeal.  While Green argued that the Eleventh Circuit’s statement that his base-offense level had been lowered from 38 to 36 created a finding of fact that the district court was bound to apply, the Eleventh Circuit responded that its statement was not a finding of fact but an assumption for the purposes of appeal that even if the amendment lowered the guideline range, the range remained unchanged.  That assumption was not binding on the district court when it considered Green’s second motion for reduced sentence.

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