Case: 18-14040 Date Filed: 06/27/2019 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14040
Non-Argument Calendar
________________________
D.C. Docket No. 3:89-cr-00074-TJC-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY ROBINSON,
a.k.a. Dusty,
a.k.a. Darnley Wane Maturin,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 27, 2019)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
Case: 18-14040 Date Filed: 06/27/2019 Page: 2 of 11
Gregory Robinson, a federal prisoner serving two life sentences plus two 40-
year sentences for various counts relating to conspiracy and possession with intent
to distribute crack cocaine and possession of powder cocaine with intent to
manufacture crack cocaine, appeals the district court’s denial of his motion to reduce
his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on Amendments 782 and
750 to the Sentencing Guidelines. On appeal, he argues that: (1) the district court
impermissibly reexamined the sentencing record for evidence of drug quantity in
violation of the law-of-the-case doctrine; and (2) the district court clearly erred in
recalculating the amount of crack cocaine involved in Robinson’s offense by
converting the quantity of powder cocaine one of his co-conspirators had delivered
to crack cocaine. After thorough review, we affirm.
We review de novo the district court’s conclusions about the scope of its legal
authority under § 3582(c)(2). United States v. Colon, 707 F.3d 1255, 1258 (11th
Cir. 2013). We review the district court’s factual findings for clear error. United
States v. Tellis, 748 F.3d 1305, 1308 (11th Cir. 2014).
First, we are unpersuaded by Robinson’s claim that the district court violated
the law-of-the-case doctrine in his § 3582 proceeding. Section 3582(c)(2) allows a
district court to reduce a defendant’s term of imprisonment if a defendant was
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
2
Case: 18-14040 Date Filed: 06/27/2019 Page: 3 of 11
This relief is only available for amendments listed as retroactive in the Sentencing
Guidelines, such as Amendments 750 and 782. U.S.S.G. § 1B1.10 (2016). In §
3582(c)(2) proceedings, courts determine the amended guideline range that would
have applied if the amendment were in effect at the time of the initial sentencing but
leave all other Guidelines application decisions undisturbed. Dillon v. United States,
560 U.S. 817, 827 (2010). A § 3582(c)(2) proceeding does not constitute a de novo
resentencing, and “all original sentencing determinations remain unchanged with the
sole exception of the guideline range that has been amended since the original
sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). A district
court properly denies a § 3582 motion where the uncontroverted drug quantity listed
in the presentence investigation report (“PSI”) establishes that the defendant would
be subject to the same guideline range, even after a retroactive amendment to the
Guidelines. United States v. Davis, 587 F.3d at 1300, 1303–04 (11th Cir. 2009).
The defendant bears the burden of proving his eligibility for a § 3582(c)(2) sentence
reduction. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013).
In Hamilton, we vacated the denial of a defendant’s § 3582(c)(2) motion based
on Amendment 750, which raised to 8.4 kilograms (from 4.5 kilograms) the amount
of crack cocaine necessary for a base offense level of 38, and remanded to the district
court for an accurate determination of Hamilton’s original drug quantity. Id. at 339–
41. We held that the district court’s finding that Hamilton was responsible for “at
3
Case: 18-14040 Date Filed: 06/27/2019 Page: 4 of 11
least 1.5 kilograms” at the sentencing hearing was not specific enough to support
any conclusion about whether a reduction under Amendment 750 was warranted.
Id. at 340. We remanded for the district court to decide, first, “what drug quantity
findings it made, either explicitly or implicitly, at Hamilton’s original sentencing
hearing.” Id. Next, if the district court’s original finding was not “specific enough”
to help decide whether Amendment 750 lowered Hamilton’s base level, i.e., limited
to “at least 1.5 kilograms,” we instructed the district court to examine the entire
record available at sentencing to see if it could make further findings consistent with
its previous findings. Id. We cautioned the district court not to refer to any material
that was not available at the original sentencing hearing. Id. If, after looking at the
record, the court still could not decide whether the drug quantity lowered Hamilton’s
guideline range, he would be ineligible for relief. Id. at 340–41.
Under the 1988 Sentencing Guidelines, a base offense level of 36 applied if
the defendant was accountable for more than 0.5 kilograms of crack cocaine.
U.S.S.G. § 2D1.1 (1988). Amendment 706 to the Sentencing Guidelines reduced
the threshold quantities for crack cocaine in § 2D1.1(c), so a base level of 36 applied
to 1.5 to 4.5 kilograms of crack cocaine. See U.S.S.G. App. C., Amend. 706 (2016).
Amendment 782 to the Sentencing Guidelines again reduced the threshold quantities
for crack cocaine in § 2D1.1(c) -- as of 2016, a base level of 36 applied to 8.4 to 25.2
kilograms of crack cocaine. See U.S.S.G. App. C., Amend. 782 (2016).
4
Case: 18-14040 Date Filed: 06/27/2019 Page: 5 of 11
An earlier appellate decision is binding on all subsequent proceedings unless
the case fits within one of the exceptions to the law-of-the-case doctrine. United
States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). Those exceptions occur
where there is new evidence, where the appellate decision is clearly erroneous and
would cause manifest injustice, or where an intervening change in controlling case
law dictates a different result. Id. In United States v. Green, which arose in the
context of a defendant’s second appeal, we considered whether the law-of-the-case
doctrine had required the district court to make a certain finding as to drug quantity,
or whether the court had properly reexamined the record for evidence of drug
quantity to conclude that it had held Green accountable for 32.1 kilograms of crack
cocaine at sentencing. 764 F.3d 1352, 1356–57 (11th Cir. 2014). In Green’s second
appeal, we said that the district court had acted exactly as Hamilton instructed by
examining the entire record before it at the time of the original sentencing to see if
it could make any further findings. Id. at 1357. We then held that a sentence in our
first opinion -- that, applying a new amendment, Green’s base offense level “was
lowered by two to 36,” based on the sentencing court’s original finding that Green
was responsible for more than 1.5 kilograms of crack cocaine -- was not a finding of
fact, but rather an assumption for the sake of considering his argument, and did not
bind the district court when it heard his second motion for a reduced sentence. Id.
5
Case: 18-14040 Date Filed: 06/27/2019 Page: 6 of 11
Here, the district court did not err in Robinson’s § 3582 proceeding when it
reexamined the existing record to determine the drug quantity Robinson was
responsible for at sentencing. As the record reveals, the law-of-the-case doctrine
does not apply because we did not make a binding factual finding as to the drug
quantity in Robinson’s past appeal. See Green, 764 F.3d at 1356–57. Rather, we
merely noted that the sentencing court had found that Robinson’s offense conduct
involved “in excess of five hundred grams of cocaine base.” United States v.
Robinson, 325 F. App’x 876, 876 (11th Cir. 2009) (quotation omitted). Just as in
Green, where we had assumed for the sake of argument that Green was entitled to a
reduction in his offense level but did not make a fact-finding in so doing, 764 F.3d
at 1356–57, our panel in Robinson’s first appeal did not make a fact finding by
repeating the sentencing court’s indeterminate drug quantity finding. And our
holding that the sentencing court had improperly relied on its “recollection” of the
evidence was not a holding that the district court could not revisit that finding; it
only rejected the district court’s method for making a new drug-quantity
determination. See Robinson, 325 F. App’x at 876.
As for our instruction in Hamilton -- to examine the entire record available at
sentencing to see if the court could make any further findings that were consistent
with its previous findings, 715 F.3d at 339–41-- it was consistent with our earlier
holding in Robinson’s first appeal. There, we held that the district court could not
6
Case: 18-14040 Date Filed: 06/27/2019 Page: 7 of 11
rely on its recollection of the evidence at sentencing to determine Robinson’s precise
drug quantity, which is consistent with Hamilton’s instruction to district courts to
clarify imprecise drug findings by reexamining the PSI and the record available at
sentencing. Thus, the district court did not err in this case when it reexamined the
sentencing record for evidence of drug quantity in ruling that he was not eligible for
a sentence reduction under Amendment 782.
But even if we were to construe our ruling in Robinson’s first appeal as barring
district courts from reexamining sentencing records, the district court did not err in
following Hamilton. See Tamayo, 80 F.3d at 1520. Hamilton -- a published panel
decision issued after Robinson’s first appeal, which was unpublished -- requires
district courts in § 3582(c)(2) proceedings to examine the record for evidence of
drug quantity if the original drug quantity findings were insufficiently specific to
decide whether a retroactive amendment reduces the defendant’s guideline range.
See Hamilton, 715 F.3d at 340–41. Thus, to the extent Hamilton represents a change
in controlling precedent, it meets the exception to the law-of-the-case doctrine, and
the district court did not err by reexamining the record for evidence of drug quantity.
We also find no merit to Robinson’s claim that the district court clearly erred
in recalculating the amount of crack cocaine involved in Robinson’s offense. To
sentence a defendant under the crack cocaine schedule, a district court determines
the amount of crack cocaine that would be produced from the amount of powder
7
Case: 18-14040 Date Filed: 06/27/2019 Page: 8 of 11
cocaine involved. United States v. Singleton, 545 F.3d 932, 934–35 (11th Cir.
2008). Calculations of drug quantities must be fair, accurate, and conservative, and
not speculative in nature. Id. So where the record lacks sufficient evidence as to the
amount of crack cocaine that would be produced from the amount of powder cocaine
involved, we’ve held that the district court should resentence the defendant
according to the powder cocaine schedule. United States v. Chisholm, 73 F.3d 304,
308–09 (11th Cir. 1996). In Singleton, we held that evidence that a defendant
intended to convert some powder cocaine to crack cocaine was insufficient to hold
him accountable for the conversion of all powder cocaine involved in the case
because the amount of crack cocaine for which he was held accountable was
speculative, and thus, clearly erroneous. 545 F.3d at 934–35.
Here, the district court properly ruled that Robinson’s sentence was ineligible
for reduction under Amendment 782 because Robinson failed to show he was
responsible for less than 8.4 kilograms of cocaine. For starters, the sentencing
court’s original finding that Robinson was responsible for “in excess of [500] grams
of cocaine base” was not specific enough to support any conclusion about whether
Robinson was entitled to a sentence reduction -- much like the sentencing court’s
finding in Hamilton that he possessed “at least 1.5 kilograms,” 715 F.3d at 339–41.
Consistent with Hamilton, the district court then examined the record available to
the sentencing court. Based on that record, the district court found that Robinson
8
Case: 18-14040 Date Filed: 06/27/2019 Page: 9 of 11
was responsible for 20.5 kilograms of powder cocaine, and multiplied this number
by 78% to convert it to 15.99 kilograms of crack cocaine, which far exceeded the
minimum 8.4 kilograms necessary for a base offense level of 36.
We cannot say the district court clearly erred in making its findings. First, the
district court did not clearly err when it found that Robinson was responsible for the
20.5 kilograms of powder cocaine transported by a coconspirator, Caroline Taylor.
As the record reflects, the sentencing court had previously adopted, over Robinson’s
objection, the PSI’s statements that Taylor had transported at least 20.5 kilograms
of powder cocaine for the conspiracy. Taylor’s uncontroverted trial testimony also
established that she transported 20.5 kilograms of cocaine for Robinson over at least
4 trips from Miami to Jacksonville and Orlando.
Nor did the district court clearly err by finding that all of the powder cocaine
Taylor transported was converted to crack cocaine. As the record reveals, the
sentencing court had adopted paragraphs of the PSI providing that the purpose of the
conspiracy was to convert powder to crack cocaine and distribute it, and that after
powdered cocaine was delivered to either Orlando or Jacksonville, Robinson or his
managers cooked the substance into crack cocaine in a total of more than 13
locations purchased or rented at various times for the purpose of setting up
distribution centers. Further, while no witness testified that all of the cocaine powder
was sold as crack cocaine, the uncontroverted testimony at trial established that the
9
Case: 18-14040 Date Filed: 06/27/2019 Page: 10 of 11
purpose of the conspiracy was to convert powder cocaine to crack cocaine for
distribution and sale. For instance, a manager of one of the houses where crack was
distributed testified solely to distributing crack cocaine, which he ordered from
Robinson using a payphone multiple times per day. Another witness testified that
she had counted out crack cocaine in one of the houses used in the conspiracy, saw
crack cocaine in the house two to three times a week from March to May 1989, and,
although she never saw powder cocaine turned into crack cocaine, smelled it in the
house and knew it was being manufactured in the kitchen a few times per week.
Finally, the district court’s estimate that the proper conversion rate from
powder to crack cocaine was 78% was not clearly erroneous because it was fair,
accurate, conservative, and not based on speculation. Singleton, 545 F.3d at 934–
35. According to the testimony of a law enforcement officer at trial, Robinson had
been upset with one of his codefendants in a recorded phone conversation because
the powdered cocaine he had cooked into crack was only 78% pure. While Robinson
claims that this evidence was not specific enough to determine the conversion rate,
he cites no specific authority for this argument nor does he to articulate why it was
not sufficiently reliable. Indeed, the testimony reflects Robinson’s own calculation
of the conversion rate at 78%, a rate he believed to be lower than ideal. On this
record, we cannot say that the 78% conversion rate was unfair or inaccurate. Id.
10
Case: 18-14040 Date Filed: 06/27/2019 Page: 11 of 11
In sum, the district court did not clearly err when it found that Robinson was
responsible for 15.99 kilograms of crack cocaine, which rendered him ineligible for
a sentence reduction under Amendments 750 or 728. Accordingly, we affirm.
AFFIRMED.
11
United States v. Gregory Robinson
Combined Opinion