[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13740 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 14, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 91-06159-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH GREGORY SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 14, 2009)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Kenneth Gregory Smith, through counsel, appeals the district court’s denial
of his second motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2),
after his initial § 3582(c)(2) motion was granted and affirmed on appeal. He
argues that he should receive a further § 3582(c)(2) sentence reduction based on
Amendment 706, because the United States Department of Justice (“DOJ”) has a
new position on the disparity between sentences of crack cocaine and powder
cocaine, and his amended sentence is therefore unreasonable. After careful review,
we affirm.
We review “de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d
1366, 1368 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657 (2009). We review for
abuse of discretion a district court’s decision whether to reduce a sentence pursuant
to § 3582(c)(2). Id. n.1. A district court may modify a term of imprisonment in the
case of a defendant who was sentenced based on a guideline range that the
Sentencing Commission subsequently lowered. 18 U.S.C. § 3582(c)(2). A
§ 3582(c)(2) motion to reduce sentence does not provide the basis for a de novo
re-sentencing. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).
We find no merit in Smith’s claim that he should receive an additional §
3582(c)(2) reduction to his sentence under Amendment 706, based on a statement
that Lanny A. Breuer, a DOJ Assistant Attorney General, made before the United
States Senate Committee on the Judiciary Subcommittee on Crime and Drugs on
April 29, 2009, that would reduce the severity of Smith’s crack cocaine offense.
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Importantly, the law of the case doctrine applies here, since the district court
previously granted Smith a § 3582(c)(2) reduction in this case, which this Court
affirmed, upon finding that the district court had adequately weighed the § 3553(a)
factors and sentenced Smith accordingly to the high-end of his guideline range.
Under the law of the case doctrine, we are “bound by findings of fact and
conclusions of law” that we previously made in the same case unless “(1) a
subsequent trial produces substantially different evidence, (2) controlling authority
has since made a contrary decision of law applicable to that issue, or (3) the prior
decision was clearly erroneous and would work manifest injustice.” United States
v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).
None of the exceptions to the law of the case doctrine apply here. First,
Breuer’s statement does not constitute new evidence or controlling authority under
the first exception, because it was not produced in a subsequent trial. See id.
Furthermore, controlling authority has not made Breuer’s statement “a contrary
decision of law applicable to that issue,” so it does not satisfy the second
exception. See id. To the contrary, Breuer’s statement was merely a policy
statement that he made to a Senate Committee with the hope that the sentencing
disparity would be eliminated between crack cocaine and powder cocaine offenses.
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Lastly, under the law, our prior decision was not “clearly erroneous” and would not
“work manifest injustice.” See id.
Therefore, the district court did not err in denying Smith’s second
§ 3582(c)(2) motion because he was not entitled to a further reduction. See United
States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009) (holding that a court need not
consider the § 3553(a) factors if a defendant is not eligible for § 3582(c)(2) relief).
AFFIRMED.
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