[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13529 February 3, 2006
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-20411-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HIRARD ESPERANCE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 3, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Hirard Esperance appeals his 151-month sentence for conspiracy to possess
with intent to distribute crack cocaine, in violation of 21 U.S.C. §§
841(b)(1)(A)(iii) and 846, and distribution of crack cocaine, in violation of 21
U.S.C. § 841(a)(1). After review, we affirm Esperance’s 151-month sentence.
I. BACKGROUND
Before discussing Esperance’s current 151-month sentence, we outline what
happened in Esperance’s prior appeal in which we affirmed his convictions but not
his 188-month sentence.
A. First Appeal
Esperance was tried and convicted of both (1) a drug conspiracy that
involved three drug transactions, totaling 225.9 grams of cocaine base, with
undercover police officers in April and May 2003, and (2) a drug distribution count
that involved one of those transactions, specifically a purchase of 131.7 grams of
cocaine base on April 24, 2003.1
At Esperance’s original sentencing, the presentence investigation report
(“PSI”) attributed 225.9 grams of cocaine base to Esperance to assign him a base
offense level of 34 pursuant to U.S.S.G. § 2D1.1(c)(3). The PSI recommended a
two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1) because a firearm
1
The third drug transaction was arranged by an undercover officer, but was not
consummated because instead law enforcement executed a search warrant on the residences
where the previous two transactions had occurred and where the drugs for the third transaction
were being prepared. However, for ease of reference, we will refer to all three incidents as drug
transactions.
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was found during a search of the residence where the cocaine base had been
cooked. The PSI concluded that Esperance was not entitled to a role reduction.
With an adjusted offense level of 36 and a criminal history category of I, the PSI
recommended a guidelines imprisonment range of 188 to 235 months.
Esperance did not object to the drug quantity attributed to him for purposes
of determining his base offense level of 34. He also did not seek safety-valve
relief. However, Esperance objected to the two-level firearm enhancement and
also to the denial of a minor role reduction. The district court overruled
Esperance’s objections and sentenced Esperance based on the calculations in the
PSI to 188 months’ imprisonment.
In his first appeal, Esperance raised several issues relating to the conduct of
his trial and also challenged his original 188-month sentence. As to his sentence,
Esperance challenged only the district court’s imposition of two-level firearm
enhancement. In his first appeal, Esperance did not challenge the district court’s
drug quantity finding that Esperance’s conspiracy offense involved 225.9 grams of
cocaine base. Nor did he argue that he was entitled to safety-valve relief. We
affirmed Esperance’s convictions, but vacated Esperance’s sentence and expressly
remanded “for resentencing without the firearm enhancment.” Therefore, we
remanded with a limited mandate to remove the firearm enhancement and
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resentence.
B. Post-remand Resentencing
On remand, Esperance renewed his objections raised at the original
sentencing. He also raised the following three new objections: (1) that he should
be held accountable only for the April 24, 2003, transaction involving 131.7 grams
of cocaine base, which would result in a base offense level of 32, rather than 34
and a guidelines imprisonment range of 121 to 151 months;2 (2) that a sentence
based on a 100:1 ratio for crack cocaine and cocaine powder was unreasonable
under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and that
Esperance should be sentenced under a 20:1 ratio; (3) that Esperance qualified for
safety-valve relief under 18 U.S.C. § 3553(f).
At the resentencing hearing, Esperance argued that only the April 24, 2003,
transaction involving 131.7 grams of cocaine base should be attributable to him for
purposes of calculating his base offense level. The government responded that
Esperance could still be held accountable for the amount of drugs involved in all
three transactions comprising the conspiracy in which Esperance was involved and
2
In his post-remand written objection filed with the district court, Esperance claims that
he is renewing his objection to the calculation of the drug quantity in the PSI, namely paragraphs
22 and 32. However, Esperance did not object to these two paragraphs in his first written
objection and did not raise this objection verbally at the sentencing hearing. Therefore, at
resentencing, Esperance’s objection to drug quantity was a new, not a renewed, objection.
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for which he was convicted. The district court agreed and found that Esperance
was accountable for the full 225.9 grams of cocaine base.
Esperance then renewed his request for a minor role reduction, arguing that
he was present at only one of the three transactions and that he had an innocent
explanation for his presence. The government responded that objections raised at
the first sentencing and overruled were not within the scope of the remand, as
follows:
Your Honor, first of all, this was considered by the Court initially.
You ruled against them. We are here for re-sentencing on the one
enhancement issue. So, first of all, I’m not sure that the Court even
can consider all these other issues that were previously raised and
denied.
The government alternatively argued that Esperance was not entitled to a minor
role reduction because some of his co-conspirators had testified at trial that he was
a supplier of some of the cocaine powder that was converted to crack cocaine. The
district court stated that it would “renew my rulings [and] again deny [the] minor
role at this particular time.”
Finally, Esperance contended that he qualified for safety-valve relief.
Defense counsel stated that Esperance maintained his innocence and had provided
all the information he knew. The government responded that Esperance’s
continued claim of innocence was inconsistent with his convictions generally and,
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in particular, with comments Esperance made to undercover police officers
showing that he was involved in the April 24, 2003, drug transaction. The district
court denied safety-valve relief, noting that the jury had found Esperance guilty of
the drug conspiracy and Esperance had not met the requirements for obtaining
safety-valve relief.
The district court then found that Esperance’s total offense level was 34 and
his criminal history category was I, resulting in an advisory guidelines
imprisonment range of 151 to 188 months. The district court then stated its belief
that “it is adequate to put him at the bottom end of that guideline,” and that “the
facts of this case mandate a sentence within the advisory guideline range albeit at
the lower end . . . .” After permitting Esperance to allocute, the district court stated
that it had considered the parties’ statements, the PSI, the advisory guidelines range
and the factors in 18 U.S.C. § 3553. The district court then sentenced Esperance,
“[b]ased on the severity and significance of the offense,” to 151 months’
imprisonment, at the low end of the guidelines range. This appeal followed.
II. DISCUSSION
A. Drug Quantity
In this second appeal, Esperance contends that, for purposes of calculating
his base offense level under the guidelines, the district court should have held him
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accountable for a lower drug quantity. We do not address this argument because
this issue is foreclosed by the law-of-the-case doctrine.
Under one arm of the law-of-the-case doctrine, lower court rulings that have
not been challenged on a first appeal will not be disturbed in a subsequent appeal.
See, e.g., United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11 th Cir. 1997)
(holding that failure to challenge on first appeal district court’s decision regarding
the amount of “usable” cocaine for purposes of calculating guidelines sentence
precluded defendant from raising issue on second appeal); United States v. Fiallo-
Jacome, 874 F.2d 1479, 1481-83 (11 th Cir. 1989) (holding that criminal defendant
waives his right to raise in second appeal issues not raised in first appeal). There
are three exceptions to the law-of-the-case doctrine. A court is not bound by a
prior ruling if (1) new evidence is presented, (2) there is a change in the controlling
law, or (3) the prior decision was clearly erroneous and will cause manifest
injustice. Escobar-Urrego, 110 F.3d at 1561.
None of the exceptions to the law-of-the-case doctrine apply to the district
court’s drug quantity finding. Therefore, that drug quantity finding became the
law of the case, and Esperance is precluded from relitigating drug quantity in his
second appeal.3
3
When an appellate court vacates a sentence in its entirety and remands with a general
mandate, the law-of-the-case doctrine does not apply, and the district court is free to conduct a
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Alternatively, even if this Court’s original remand were construed to be a
general remand, thereby permitting the district court and the defendant to revisit
the drug quantity issue, the district court did not clearly err in its fact finding as to
drug quantity. In our prior opinion in the first appeal, the Court affirmed
Esperance’s convictions and outlined in detail the evidence connecting Esperance
to the drug conspiracy, and we need not repeat it here. In addition, the drug
quantity of 225.9 grams of cocaine base was all attributed to Esperance as a
member of this drug conspiracy and consisted of: (1) 71.3 grams purchased from
his co-conspirators Frank and Cineas during the April 18, 2003 transaction at the
6040 NW First Avenue residence; (2) the 131.7 grams purchased from Frank and
Cineas with Esperance’s assistance at the 6063 NW First Avenue residence on
April 24, 2003; and (3) the additional 22.9 grams seized from the 6063 NW First
Avenue residence on May 13, 2003. Furthermore, at trial, Cineas testified that
Esperance was involved in the drug deals, was present when she “cooked” the
cocaine powder into cocaine base for the April 24 transaction, and that Esperance
helped Frank count the money during that transaction. Joseph, another co-
conspirator, testified that Esperance provided “half keys” and “keys” of cocaine
de novo resentencing. See, e.g., United States v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003).
“If the appellate court issues a limited mandate, however, the trial court is restricted in the range
of issues it may consider on remand.” Id. (citing United States v. Tamayo, 80 F.3d 1514, 1520
(11th Cir. 1996)).
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powder to Frank, which Frank then cooked into crack. The undercover officer
testified, after hearing an audiotape, that Esperance approached his car during the
second purchase of 5 “cookies” of cocaine base and said, “We have four. We are
making five. Just wait.” After review, we conclude that there was ample evidence
to support the district court’s drug quantity finding as to Esperance. See U.S.S.G.
§ 1B1.3(a) (stating that a defendant’s base offense level is based on reasonably
foreseeable actions of others taken in furtherance of the jointly undertaken criminal
activity); United States v. Maxwell, 34 F.3d 1006, 1012 (11 th Cir. 1994)
(explaining that, under the Sentencing Guidelines, a member of a drug conspiracy
is accountable for the reasonably foreseeable conduct of others in furtherance of
the drug conspiracy).
B. Safety Valve
Esperance also argues that the district court clearly erred in denying him
“safety-valve” relief. For the reasons already discussed with regard to Esperance’s
challenge to the drug quantity, the law-of-the-case doctrine precludes further
consideration of this issue. Esperance did not seek safety-valve relief at his
original sentencing and raise that issue in his first appeal. Therefore, under the
law-of-the-case doctrine, Esperance waived his right to raise the safety-valve issue
in a second appeal. See United States v. Fiallo-Jacome, 874 F.2d at 1481-83.
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Additionally, the safety-valve issue did not fall within the scope of this Court’s
limited mandate on remand to sentence Esperance without the firearm
enhancement and did not fall within one of the exceptions to the law-of-the-case
doctrine. See Tamayo, 80 F.3d at 1521 (holding that issues outside the scope of
the limited mandate were precluded by law-of-the-case doctrine).
Alternatively, even if this Court’s remand were construed to be a general
remand, Esperance’s safety-valve argument still fails. Under the safety-valve
provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, a sentencing court may
depart downward from the statutory minimum sentence if the defendant, among
other things, gives the government prior to the sentencing hearing truthful and
complete information concerning his involvement in the offense. United States v.
Simpson, 228 F.3d 1294, 1304-05 (11 th Cir. 2000); 18 U.S.C. § 3553(f)(5);
U.S.S.G. § 5C1.2(a)(5). “The question of whether the information [that the
defendant] supplied to the government . . . was truthful and complete . . . is a
factual finding for the district court.” United States v. Brownlee, 204 F.3d 1302,
1305 (11th Cir. 2000). “The burden of proof on the truthfulness issue lies, of
course, with the defendant.” United States v. Espinosa, 172 F.3d 795, 797 (11th
Cir. 1999). We review a district court’s factual determinations in deciding whether
to grant safety-valve relief for clear error. United States v. Cruz, 106 F.3d 1553,
10
1556-57 (11th Cir. 1997).
The district court did not clearly err in concluding that Esperance did not
meet his burden to provide a complete and truthful statement of his involvement in
the drug conspiracy. At resentencing, Esperance maintained that he was innocent.
However, Esperance was tape-recorded speaking to undercover agents in a way
that demonstrated that he was involved in and aware of the drug sale.4 Esperance
offered no information to account for his statements to undercover agents. Under
these facts, the district court did not clearly err in denying safety-valve relief.
C. Reasonableness of Esperance’s Sentence
Esperance next argues that his sentence is unreasonable under United States
v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Among other things, Esperance
argues that the 100:1 penalty ratio for offenses involving cocaine base compared to
offenses involving cocaine powder renders his sentence unreasonable. Esperance’s
reasonableness challenge is not foreclosed by the law-of-the-case doctrine because
it falls within one of the doctrine’s exceptions. Booker was decided after we
remanded Esperance’s case for resentencing, and Booker’s remedial holding that a
sentence must be reasonable constituted an intervening change in the law.
4
Specifically, Esperance stated to an undercover officer and a confidential informant who
were waiting in a car for the cocaine to finish “cooking,” “We have four. We are making five.
Just wait,” and “Be cool, we make it right for you.”
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After Booker, a district court, in determining a reasonable sentence, must
consider the correctly calculated sentencing range under the Sentencing Guidelines
and the factors set forth in 18 U.S.C. § 3553(a). See Booker, 543 U.S. at ___, 125
S. Ct. at 764-66; United States v. Talley, 431 F.3d 784, 786 (11 th Cir. 2005).5 We
review a defendant’s ultimate sentence, in its entirety, for unreasonableness in light
of the factors in § 3553(a). See United States v. Winigear, 422 F.3d 1241, 1245
(11 th Cir. 2005).
After review, we cannot say that Esperance’s 151-month sentence was
unreasonable. The district court imposed a sentence at the bottom of the guidelines
range of 151 to 188 months and well below the statutory maximum sentence of life
imprisonment. See Talley, 431 F.3d at 788 (explaining that, although we have
declined to hold that a sentence within the guidelines range is per se reasonable,
ordinarily we expect such a sentence to be reasonable); Winigear, 422 F.3d at 1246
(comparing, as one indication of reasonableness, the actual prison term imposed to
the statutory maximum). The district court stated that it had considered the parties’
5
The factors in § 3553(a) include: “(1) the nature and circumstances of the offense; (2)
the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law, and to provide just punishment; (4)
the need to protect the public; and (5) the Guidelines range.” United States v. Scott, 426 F.3d
1324, 1328-29 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)). “[N]othing in Booker or elsewhere
requires the district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” Id. at 1329. Instead, indications in
the record that the district court considered facts and circumstances falling within § 3553(a)’s
factors will suffice. Talley, 431 F.3d at 876; Scott, 426 F.3d at 1329-30.
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statements, the advisory guidelines range and the factors in § 3553(a) and, based
on “the severity and the significance of the offense,” imposed a sentence at the low
end of the guidelines range. Given that the district court consulted the accurately
calculated guidelines range and considered the factors of § 3553(a), we cannot say
that Esperance’s sentence at the low end of the guidelines range is unreasonable.
For all these reasons, we affirm Esperance’s 151-month sentence.
AFFIRMED.
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