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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14266
Non-Argument Calendar
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D.C. Docket No. 8:91-cr-00300-EAK-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NORMAN LEON BURGESS,
a.k.a. Shine,
a.k.a. Leon Burgess,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 27, 2013)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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Norman Burgess appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce sentence based on Amendment 505 to the
Sentencing Guidelines. 1 After thorough review, we affirm.
Burgess was convicted in 1993 of conspiracy to distribute crack cocaine and
use of a firearm during and in relation to drug trafficking. At sentencing, the
district court held him accountable for 144.6 kilograms of crack cocaine, which
triggered a base offense level of 42 under the Sentencing Guidelines and a total
offense level of 45. Burgess’s resulting guidelines range was life imprisonment.
The district court sentenced Burgess to life imprisonment on the drug count and a
mandatory five-year sentence on the firearm count.
We upheld Burgess’s convictions and sentences on direct appeal. United
States v. Brazel, 102 F.3d 1120 (11th Cir. 1997). In doing so, we expressed doubt
that Burgess was responsible for 144.6 kilograms of crack cocaine, but stated that
there was sufficient evidence to hold him accountable for 85.6 kilograms, which
was still significantly more than required to trigger a base offense level of 42. Id.
at 1158-61.
In September 1997, Burgess moved for a reduction in sentence under
§ 3582(c)(2) based on Amendment 505, which capped the offense level at 38 –
1
Although Burgess also based his motion on Amendment 750, he has not made this argument on
appeal and has, therefore, abandoned it. See United States v. Cunningham, 161 F.3d 1343, 1344
(11th Cir. 1998).
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corresponding to 1.5 kilograms or more of crack cocaine – for certain drug
offenses, including Burgess’s. The district court declined to exercise its discretion
to lower Burgess’s sentence and denied the motion, and we affirmed. United
States v. Burgess (Burgess I), 190 F.3d 540 (11th Cir. 1999) (unpublished table
decision). Ten years later, Burgess again moved for a reduction in sentence under
Amendment 505. This time, he argued that the district court erred in his first
§ 3582(c)(2) proceeding, in part by basing its decision on an amount of crack
cocaine that this court rejected in his direct appeal. The government responded
that, due to the extraordinary quantity of crack cocaine for which Burgess was
responsible, even if the district court accepted the amount we mentioned in dicta
on direct appeal, a reduction in his sentence was unwarranted. The district court
adopted the government’s reasoning and denied Burgess’s motion. We affirmed
again. United States v. Burgess (Burgess II), 278 F. App’x 959, 959 (11th Cir.
2008) (unpublished).
In December 2008, Burgess filed a third § 3582(c)(2) motion, based in part
on Amendment 505. The district court denied this motion based on the
government’s argument that the law-of-the-case doctrine prohibited Burgess’s
Amendment 505 argument. Burgess filed a motion to alter or amend the judgment,
which the district court denied. Burgess did not appeal. Then, in January 2012,
Burgess filed this § 3582(c)(2) motion, his fourth. The government responded that
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the court had already declined to exercise its discretion to reduce Burgess’s
sentence under Amendment 505. The district court agreed with the government’s
reasoning and denied Burgess’s motion. This is his appeal.
We review a district court’s decision not to reduce a sentence under
§ 3582(c)(2) for an abuse of discretion. United States v. Davis, 587 F.3d 1300,
1303 (11th Cir. 2009). A district court’s application of the law-of-the-case
doctrine, however, is a legal conclusion that we review de novo. United States v.
Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005).
The law-of-the-case doctrine provides: “An appellate decision binds all
subsequent proceedings in the same case not only as to explicit rulings, but also as
to issues decided necessarily by implication on the prior appeal.” United States v.
Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). There are narrow exceptions
“where there is new evidence, an intervening change in controlling law dictating a
different result, or the appellate decision, if implemented, would cause manifest
injustice because it is clearly erroneous.” Id. The law-of-the-case doctrine applies
to § 3582(c)(2) proceedings. See United States v. Escobar-Urrego, 110 F.3d 1556,
1560-61 (11th Cir. 1997).
We conclude the law-of-the-case doctrine applies to preclude a reduction in
Burgess’s sentence based on Amendment 505. In Burgess II we affirmed the
denial of Burgess’s request for a reduction under Amendment 505, necessarily by
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implication incorporating the district court’s reasoning that, whether Burgess was
held responsible for 85.6 or 144.6 kilograms of crack cocaine, a reduction in
sentence was not warranted. See Burgess II, 278 F. App’x at 959. That holding is
the law of this case and accordingly binds us with respect to our analysis of
Burgess’s current appeal based on the same argument. See Tamayo, 80 F.3d at
1520.
And we cannot agree with Burgess that the manifest injustice exception to
the doctrine applies here. In denying Burgess’s second § 3582(c)(2) motion, the
district court found that, even if the court were to hold Burgess responsible for only
85.6 kilograms of crack cocaine, that amount – more than 50 times the triggering
amount for a base offense level 38 – was so extraordinary that a reduction was not
warranted. We affirmed that ruling. Burgess cannot show that this reasoning is
clearly erroneous because it relies, in part, on exactly the drug calculation he asks
us to consider. Accordingly, Burgess cannot show our reliance on that reasoning
in this appeal would cause manifest injustice.
AFFIRMED.
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