[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10080 March 13, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00024-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH JAMES STRATTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 13, 2008)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
This case is before us on remand from the United States Supreme Court for
consideration of Stratton’s sentence in light of Kimbrough v. United States, 552
U.S. ___, 128 S. Ct. 558 (2007). Stratton v. United States, 552 U.S. ___, 128 S.
Ct. 859 (2008). This panel previously affirmed Stratton’s 235-month sentence for
conspiracy to possess with intent to distribute crack and powder cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. See United States v.
Stratton, 205 F. App’x 791 (11th Cir. 2006). After reconsideration, we reinstate
our previous opinion to the extent it rejected Stratton’s claims that (1) United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), is unconstitutional, (2)
Booker’s remedial holding implicates ex post facto and due process concerns, (3)
the district court violated Booker by its extra-verdict fact-findings and
enhancements, and (4) the district court judge sua sponte should have recused. We
also reinstate our previous order to the extent it concluded that Stratton’s claim that
21 U.S.C. § 846 is unconstitutional was barred by the law-of-the-case doctrine
because he did not raise it in his first appeal.
However, we reconsider our previous opinion to the extent it rejected
Stratton’s claim that the crack/powder sentencing disparity may be a factor in
determining a reasonable sentence. We do so for three reasons. First, Stratton
raised a Kimbrough-type claim in both the district court and this Court in his prior
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appeal. Because Stratton timely raised his sentencing disparity claim in his prior
direct appeal, we can now consider it on remand. Cf. United States v. Ardley, 242
F.3d 989, 990 (11th Cir. 2001) (applying well-established rule that issues not
timely raised in the initial briefs are deemed abandoned in case remanded after
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)); United States v.
Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005) (applying Ardley reasoning to
Booker remand case).
Second, this is a case where the district court rejected Stratton’s claim that
the court had authority to consider the crack/powder disparity as a sentencing
factor and a basis for a sentence reduction. And this is not a case where the district
court indicated that it would enter the same sentence even if the court had authority
to consider the crack/powder disparity as a sentencing factor. See United States v.
Keene, 470 F.3d. 1347, 1348-49 (11th Cir. 2006).
Third, our previous opinion relied on our binding precedent in United States
v. Williams, 456 F.3d 1353 (11th Cir. 2006), which concluded that federal courts
were “not at liberty to supplant [Congress’s] policy decision” that “crack offenders
should be punished more severely.” Id. at 1367. In Kimbrough, the Supreme
Court overruled Williams and determined that “it would not be an abuse of
discretion for a district court to conclude when sentencing a particular defendant
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that the crack/powder disparity yields a sentence ‘greater than necessary’ to
achieve [18 U.S.C.] § 3553(a)’s purposes, even in a mine-run case.” 552 U.S. at
___, 128 S. Ct. at 566 n.4, 575. In light of Kimbrough, Stratton has shown the
district court erred in concluding that it lacked authority to consider the
crack/powder sentencing disparity in reaching an appropriate sentence.
Therefore, we remand this case to the district court for the limited purpose of
resentencing Stratton in light of Kimbrough. We do not suggest on remand that the
district court must impose any particular sentence or that the district court is not
free to impose the same sentence after considering the § 3553(a) factors.
Furthermore, as this is a limited remand to permit the district court to reconsider
the § 3553(a) factors in light of the Supreme Court’s holding in Kimbrough,
Stratton may not re-argue other issues already decided or necessarily decided
during his two prior sentencings that either were affirmed on direct appeal or could
have been, but were not, raised by him during his direct appeals. See United States
v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003) (explaining that when the appellate
courts issue limited mandates, “the trial court is restricted in the range of issues it
may consider on remand”). However, the district court may, if it wishes to do so,
combine this resentencing proceeding on remand with any additional proceeding
the district court may determine is appropriate in light of the retroactive application
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of Amendment 706 to the crack-cocaine guidelines effective March 3, 2008. See
U.S.S.G. app. C, amend. 713 (Supp. 2008).
Accordingly, we reinstate our previous opinion with the exception of our
discussion of the crack/powder sentencing disparity, for which we substitute the
foregoing.
OPINION REINSTATED IN PART; AFFIRMED IN PART; and
VACATED AND REMANDED IN PART.
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