[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 28, 2008
No. 07-14977 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-00121-CR-JTC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEROY NOLAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 28, 2008)
Before ANDERSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Leroy Nolan appeals pro se the denial of his motion to reduce his sentence
of imprisonment for life for conspiring to distribute drugs. 18 U.S.C. § 3582(c)(2).
The district court rejected Nolan’s argument to reduce his sentence under
Amendment 599 of the Sentencing Guidelines. We affirm.
I. BACKGROUND
Nolan was convicted for his participation in a conspiracy to distribute
mixtures of drugs containing heroin, cocaine, and cocaine base. 21 U.S.C. §§
841(a)(1), 846. Nolan was later convicted of two counts of possession of a firearm
by a convicted felon. 18 U.S.C. § 922(g)(1). The district court sentenced Nolan
for the three crimes based on a single presentence investigation report. The report
grouped the conspiracy conviction with one count of possession of a firearm for
offense level computations because the firearm charge “embodie[d] conduct that
[was] treated as a specific offense characteristic in the guideline applicable” to the
conspiracy charge. Under the guidelines, the base offense level for the conspiracy
conviction was enhanced by two points because Nolan possessed a firearm in
connection with the offense. See U.S.S.G. § 2D1.1(b)(1). The district court
sentenced Nolan to imprisonment for life for the conspiracy conviction concurrent
with two sentences for 120 months for the firearms convictions.
This Court affirmed Nolan’s conspiracy conviction and sentence but vacated
and remanded Nolan’s convictions and sentences for the possession of firearms.
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On remand, the district court granted the motions of the government to dismiss the
firearms charges. Nolan moved for resentencing and argued that the vacatur of his
firearms convictions rendered the firearm enhancement inapplicable to his drug
conspiracy charge. The district court denied the motion and ruled that the evidence
supported its application of the enhancement. This Court dismissed Nolan’s appeal
as untimely.
Nolan filed a collateral challenge to his sentence. 28 U.S.C. § 2255. The
district court denied the motion on the merits. The district court and this Court
denied Nolan’s motions for a certificate of appealability.
After Nolan filed two other motions challenging his sentence, he filed a
motion to modify. See 18 U.S.C. § 3582(c)(2), Fed. R. Civ. P. 60(b). Nolan
argued that Amendment 599 to the Sentencing Guidelines barred the district court
from sentencing him for the possession of firearms and using that same conduct to
enhance his sentence for his drug conspiracy conviction. The district court denied
the motion and ruled that Amendment 599 was not applicable to Nolan “because
[Nolan] was not convicted of violating 18 U.S.C. §§ 844(h), 924(c), or 929(a)” and
“there was no double counting for firearm use in a single criminal event.”
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II. STANDARDS OF REVIEW
“In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we
review de novo the district court’s legal conclusions regarding the scope of its
authority under the Sentencing Guidelines.” United States v. White, 305 F.3d
1264, 1267 (11th Cir. 2002) (citing United States v. Pelaez, 196 F.3d 1203, 1205
(11th Cir. 1999)). We also review de novo questions regarding subject matter
jurisdiction. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).
III. DISCUSSION
Nolan argues that the district court should have applied Amendment 599 of
the Sentencing Guidelines to modify his sentence and should not have applied the
firearm enhancement to his sentence for conspiracy to distribute drugs. These
arguments fail. We address each argument in turn.
A. Amendment 599 Does Not Apply to Nolan.
Nolan argues that Amendment 599 bars enhancement of his sentence for his
possession of a firearm when he was convicted and sentenced on a separate charge
related to the firearm. He argues that the application of the firearm enhancement
constitutes double-counting. We disagree.
The district court did not err by concluding that Amendment 599 did not
apply to Nolan. Amendment 599 amended only the commentary to Section 2K2.4
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of the Sentencing Guidelines. U.S.S.G. App. C., Amendment 599; U.S.S.G.
§ 1B1.10(c). Section 2K2.4 governs the base offense level for individuals who
have violated sections 844(h), 924(c), or 929(a) of Title 18 of the United States
Code. See U.S.S.G. § 2K2.4. Amendment 599 was factually inapplicable to
Nolan’s conviction because he was sentenced under Section 3D1.2. 21 U.S.C. §§
841(a)(1), 846; see United States v. Armstrong, 347 F.3d 905, 908 (11th Cir.
2003). Nolan’s related argument that his sentence for the conspiracy charge
involved duplicative punishment is without merit.
B. We Lack Jurisdiction to Consider Nolan’s Challenge
of the Firearm Enhancement.
Nolan raises two arguments regarding the use of the firearm enhancement.
First, he argues for the first time on appeal that the district court should not have
applied the enhancement because there was no evidence to establish that he
possessed the firearm in connection with the drug conspiracy and he never was
charged with possession of a weapon in connection with the conspiracy. Second,
Nolan argues that his firearm conviction was erroneously bundled with his
conspiracy conviction at sentencing and, after this Court vacated the firearm
charges, he should have been resentenced for the conspiracy conviction.
When we look beyond the label of Nolan’s motion, United States v. Stossel,
348 F.3d 1320, 1322 n.2 (11th Cir. 2003), we do not have jurisdiction to entertain
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his arguments. Nolan did not apply for or receive permission from this Court to
file a successive motion to vacate his sentence. See 28 U.S.C. §§ 2244(b)(3)(A),
2255(h). Nolan’s argument is also precluded from review under the law-of-the-
case doctrine. The district court rejected Nolan’s argument to reexamine his
sentence, and we dismissed the appeal of that decision as untimely. See United
States v. Escobar-Urrego, 110 F.3d 1556, 1560–61 (11th Cir. 1997).
We affirm the denial of Nolan’s section 3582(c)(2) motion and dismiss
Nolan’s remaining arguments for lack of jurisdiction.
AFFIRMED IN PART; DISMISSED IN PART.
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