[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10043 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 8, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:05-cr-00159-TJC-MCR-1
UNITED STATES OF AMERICA,
llllllllllllllllllll l Plaintiff - Appellee,
versus
RONALD ROBERT EVANS, SR.,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 8, 2010)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Ronald Evans, Sr. was convicted of engaging in a continuing criminal
enterprise (CCE) to distribute crack cocaine in violation of 21 U.S.C. § 848(a), (c),
and a number of other offenses.1 The district court sentenced Evans to 360
months, and Evans appealed. We affirmed his convictions but vacated his
sentence and remanded for the limited purpose of resentencing in light of
Kimbrough v. United States, 552 U.S. 85 (2007). On remand, the district court
imposed a 293-month sentence, and Evans again appeals. Evans now argues
(1) his original CCE conviction should be reversed, and (2) the district court
committed a number of reversible errors at resentencing.2 After careful review of
the record and the parties’ briefs, we dismiss Evans’s appeal as to his original
CCE conviction and we otherwise affirm Evans’s sentence.
I.
Evans argues that, in our prior decision rejecting his faulty-jury-instruction
challenge to his CCE conviction, we erroneously relied on United States v.
1
Evans was also convicted of trafficking in contraband cigarettes in violation of
18 U.S.C. §§ 2342(a) & 2344; discharging pollutants in violation of 33 U.S.C. §§ 1311(a) &
1319(c)(2)(A); unlawfully transporting farm labor in violation of 29 U.S.C. §§ 1811(a), 1812,
1841 & 1851(a); structuring currency transactions to circumvent reporting requirements in
violation of 31 U.S.C. §§ 5313(a), 5324(a)(3) & 5324(d)(2) and 31 C.F.R. §§ 103.11 & 103.22;
and witness tampering in violation of 18 U.S.C. § 1512(b)(3).
2
Specifically, Evans contends that the district court failed to (i) adequately address the
§ 3553(a) factors, (ii) provide a statement of reasons for imposing the sentence, and
(iii) articulate its own crack-to-power-cocaine ratio.
2
Moorman, 944 F.2d 801 (11th Cir. 1991). Evans contends that Moorman was
abrogated by Richardson v. United States, 526 U.S. 813 (1999), and concludes
that he is therefore entitled to a vacating of his CCE conviction and sentence. This
argument fails because both Evans and this Court are bound by the law-of-the-case
doctrine.3
In our previous decision, we concluded that Evans’s argument regarding the
district court’s refusal to give particular jury instructions was meritless. See
United States v. Evans, 276 Fed. Appx. 926, 927 (11th Cir. 2008). As such, our
rejection of this claim and our consequent affirming of Evans’s CCE conviction
constitute the law of the case—in other words, Evans cannot now challenge what
has already been decided. Because Evans has not shown that any exception to the
law-of-the-case doctrine applies, see United States v. Tamayo, 80 F.3d 1514, 1520
(11th Cir. 1996), we dismiss Evans’s appeal as to this claim.4
3
Under the law-of-the-case doctrine, “[a]n appellate decision binds all subsequent
proceedings in the same case,” unless one of the following exceptions applies: (1) new evidence
is presented, (2) there has been an intervening change in controlling law dictating a different
result, or (3) the prior appellate decision is clearly erroneous and would result in manifest
injustice if implemented. United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996).
4
We also note that Evans’s contention that Richardson abrogated Moorman as to this
issue is meritless. Compare Moorman, 944 F.2d at 803 (“[J]urors need not be in unanimous
agreement as to the identities of the five subordinates involved in a continuing criminal
enterprise . . . .”) with Richardson, 526 U.S. at 824 (“[A]ssuming, without deciding, that there is
no unanimity requirement in respect to” the CCE statute’s “five or more other persons”
requirement).
3
II.
The district court did not abuse its discretion by imposing a 293-month
sentence.5 Evans’s sentence was procedurally reasonable6 because the court
correctly calculated Evans’s guideline range—which did not change from his
previous sentencing—and the court explicitly stated that it had considered the
§ 3553(a) factors. Considering the reasons previously set forth by the sentencing
judge in open court, the judge’s reaffirmation of those reasons at the resentencing
hearing, and the sentencing order’s reincorporation of those reasons, we conclude
that the court adequately addressed the § 3553(a) factors and sufficiently stated its
reasons for the sentence imposed. See United States v. Bonilla, 463 F.3d 1176,
1181–82 (11th Cir. 2006).
Finally, and contrary to Evans’s argument, nothing in Kimbrough v. United
States, 552 U.S. 85 (2007), or Spears v. United States, 129 S.Ct. 840 (2009),
required the district court to specify an alternate crack-to-powder ratio, or to
explain why it rejected his suggested one-to-one ratio. Although Spears permits a
district court to specify an alternate ratio, neither Kimbrough nor Spears requires a
5
We review Evans’s sentence for reasonableness, meaning we determine whether the
district court abused its discretion. See United States v. Williams, 526 F.3d 1312, 1321 (11th Cir.
2008).
6
A sentence must be both procedurally and substantively reasonable. Williams, 526 F.3d
at 1321–22.
4
district court to expressly adopt a such a ratio. See Spears, 129 S.Ct. at 843–44.
Thus, because Evans’s sentence was both procedurally and substantively
reasonable, we affirm the district court.
DISMISSED IN PART, AFFIRMED IN PART.
5