[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 5, 2006
No. 05-15578 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-14003-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER R. BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 5, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Christopher R. Brown appeals his conviction and 110-month sentence for
possession with intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). On appeal, Brown argues that (1) the district court plainly erred when
it failed to consider the sentencing disparity resulting from the 100:1 crack-to-
cocaine ratio; (2) the district court erred by sentencing him based on a drug
quantity that was not alleged in the indictment or found by the jury; and (3) his
conviction should be vacated because it may have been based on a non-existent
crime, namely that he aided and abetted himself.
After review, we conclude that none of Brown’s arguments has any merit.
First, Brown’s argument concerning the 100:1 crack-to-cocaine ratio already has
been rejected by this Court. In United States v. Williams, this Court held that the
district court could not permissibly depart from the correctly calculated Guidelines
range based on its disagreement with the relative sentencing disparities resulting
from the 100-to-1 ratio. 456 F.3d 1353, 1364-69 (11th Cir. 2006). Because the
sentencing disparity, by itself, is not a proper basis for such a departure, the district
court did not plainly err by failing to explicitly consider the disparity when
determining what sentence to impose.
Second, so long as a district court applies the Guidelines as advisory, which
the district court did in this case, a district court is not precluded from making
additional factual findings, under a preponderance-of-the-evidence standard, that
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go beyond the facts found by the jury. See United States v. Chau, 426 F.3d 1318,
1323-24 (11th Cir. 2005). Brown concedes as much in his reply brief when he
notes that he is raising this issue in order to preserve it for possible future review.
Finally, Brown’s challenge to his conviction is precluded by the law-of-the-
case doctrine. See Luckey v. Miller, 929 F.2d 618, 621 (11th Cir. 1991) (stating
that “findings of fact and conclusions of law by an appellate court are generally
binding in all subsequent proceedings in the same case in the trial court or on a
later appeal” (quotation marks omitted)). The instant appeal is Brown’s third
direct appeal in this case. In Brown’s second direct appeal before this Court,
Brown raised the same challenge to his conviction that he now makes, but we
concluded that Brown had waived the issue by not raising it in his first appeal. See
United States v. Brown, 134 Fed.Appx. 279, 283 n.4 (11th Cir. 2005).
Accordingly, we decline to address Brown’s challenge to his conviction in this
appeal.1
Based on the foregoing, we affirm Brown’s conviction and sentence.
AFFIRMED.
1
We also reject Brown’s unfounded attempt to avoid the law-of-the-case doctrine based
on the “actual innocence” exception from Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995),
which provides a possibility for review of procedurally defaulted claims in a habeas context.
Moreover, we conclude that none of the exceptions to the law-of-the-case doctrine is applicable
in this case. See United States v. Escobar-Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997)
(discussing exceptions to the law-of-the-case doctrine).
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