[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 31, 2009
No. 08-10185
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-14041-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK FREDERICK WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 31, 2009)
Before DUBINA and CARNES, Circuit Judges, and RESTANI,* Judge.
DUBINA, Circuit Judge:
*
Honorable Jane Restani, Chief Judge of the United States Court of International Trade,
sitting by designation.
Appellant Patrick Frederick Williams appeals his life sentence, imposed on
remand, for possession with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1). We previously remanded this case to the district court for
compliance with 18 U.S.C. § 3553(c)(1), requiring the district court to state the
reasons for giving Williams a life sentence and to explain why the sentence was
appropriate. See United States v. Williams, 438 F.3d 1272, 1274–75 (11th Cir.
2006) (“Williams I”). In Williams I, we: (1) held that “it was not error to enhance
Williams’[s] sentence on the basis of prior convictions properly noted in the
presentence report (PSI);” (2) found “no constitutional Booker1 error in assigning
to Williams a base offense level of 30, the figure used for crack offenses involving
between 35 and 50 grams;” (3) rejected Williams’s “claim that the trial court
committed reversible Booker error by construing the sentencing guidelines as
mandatory;” and (4) rejected Williams’s “claim that his sentence must be vacated
because the district court failed to inquire ‘whether he affirms or denies that he has
been previously convicted as alleged in the information.’” Id. at 1273–74 (footnote
added) (quoting 21 U.S.C. § 851(b)). In Williams I, we also denied Williams’s
claim that the district court violated his Sixth Amendment rights by considering
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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prior convictions that were not included in the indictment nor found by a jury. Id.
I.
In this appeal, Williams argues that his life sentence was procedurally
unreasonable because at resentencing the district court treated the Sentencing
Guidelines as mandatory, improperly calculated the guideline range, failed to
consider the 18 U.S.C. § 3553(a) factors, and failed to adequately explain the
chosen sentence by relying on unproven facts from arrest warrants and statements
that he made while asserting his right to contest his guilt at trial. Specifically, he
asserts that by deciding to construe the previous mandate given by this court
narrowly, and failing to consider the § 3553(a) factors in order to impose a lesser
sentence, the district court treated the guidelines as mandatory, in violation of
Booker. Williams also argues that he was not a career offender because his battery
of a law enforcement officer (“BOLEO”) conviction was not a crime of violence
under U.S. Sentencing Guidelines Manual § 4B1.1(a). Williams relies on an
intervening Florida Supreme Court decision that held that BOLEO is not a crime
of violence. See State v. Hearns, 961 So. 2d 211, 212 (Fla. 2007) (holding that
battery of a law enforcement officer is not a “forcible felony” under Florida’s
violent career criminal statute).
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II.
We review de novo whether the district court complied with our mandate.
United States v. Amedeo, 487 F.3d 823, 829 (11th Cir.), cert. denied, ___ U.S.
___, 128 S. Ct. 671, 169 L. Ed. 2d 526 (2007). Where we issue a limited mandate,
“the trial court is restricted in the range of issues it may consider on remand.”
United States v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003). Particularly where
this court holds that there is no merit to a party’s objections to his sentence other
than that for which the court issues a remand, the district court is foreclosed from
addressing any of the other sentencing issues previously raised. See United States
v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). A district court’s assertion of
jurisdiction over matters outside the scope of such a mandate constitutes an abuse
of discretion. Id. Moreover, a specific mandate is not subject to interpretation.
United States v. Mesa, 247 F.3d 1165, 1170 (11th Cir. 2001).
“Under the law of the case doctrine, both the district court and the court of
appeals are bound by findings of fact and conclusions of law made by the court of
appeals in a prior appeal of the same case.” United States v. Stinson, 97 F.3d 466,
469 (11th Cir. 1996). The exceptions to the law of the case doctrine are (1) the
presentation of new evidence, or (2) an intervening change in controlling law, or
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(3) that the appellate decision is clearly erroneous and would result in manifest
injustice if implemented. Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510
(11th Cir. 1987).
III.
In Williams I, we remanded the case because the district court failed to
comply with § 3553(c)(1) by offering “no reason for the life sentence it elected to
impose upon 26 year-old Williams.” 438 F.3d at 1274. Pursuant to § 3553(c)(1),
a “court, at the time of sentencing, shall state in open court the reasons for its
imposition of the particular sentence, and, if the sentenc[ing] . . . range exceeds 24
months, the reason for imposing a sentence at a particular point within the range.”
18 U.S.C. § 3553(c)(1). Under Booker, the district court need not state on the
record that it has explicitly considered each § 3553(a) factor and need not discuss
each factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Rather,
“an acknowledgment by the district court that it has considered the defendant’s
arguments and the factors in section 3553(a) is sufficient.” Id. The weight
accorded to the § 3553(a) factors is within the district court’s discretion. See
Amedeo, 487 F.3d at 832.
Our remand was for the limited purpose of compelling the district court to
comply with § 3553(c)(1) and did not require a recalculation of either Williams’s
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sentencing range or the sentence imposed. Our mandate merely required that the
district court provide reasons for the life sentence it imposed, but we otherwise
found that the sentence was reasonable. Upon remand, the district court provided
reasons in accord with our mandate and Booker. Thus, we conclude that
Williams’s sentence was not procedurally unreasonable.
IV.
As previously discussed, our limited mandate restricted the district court
from revisiting issues on which we affirmed during the first appeal, including
whether Williams’s sentence should be enhanced because of certain prior
convictions. However, because one exception to the mandate rule is for an
intervening change in controlling law, we will consider whether two intervening
cases that Williams cites constitute a change in controlling law since the time of
our first decision that should be applied now notwithstanding our mandate.
Williams claims that the district court erred in classifying him as a career offender
based on an earlier BOLEO conviction because the Florida Supreme Court
recently held that a BOLEO conviction is not a “forcible felony” for the purposes
of sentence enhancement under Florida’s violent career criminal statute. See
Hearns, 961 So. 2d at 212. We addressed and rejected this very argument in
United States v. Johnson, 528 F.3d 1318 (11th Cir. 2008), cert granted, ___S. Ct.
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___, 2009 WL 425080 (Feb. 23, 2009). Although Johnson is pending review in
the Supreme Court, it is still controlling precedent. See Ritter v. Thigpen, 828
F.2d 662, 665–66 (11th Cir. 1987)(“A grant of certiorari does not constitute new
law.”). In Johnson, we held that the issue of whether a federal statute (in that case
the Armed Career Criminal Act) applies to the state law defined crime of battery is
a federal question, not a state one. Thus, Hearns does not overrule this court’s
opinion in United States v. Glover, 431 F.3d 744, 749 (11th Cir. 2005), which held
that a BOLEO conviction is a crime of violence for purposes of the federal
sentencing guidelines. Williams argues that our holding in Glover must be
reconsidered in light of an intervening Supreme Court decision, Begay v. United
States, 553 U.S. ___, 128 S. Ct. 1581 (2008). In Begay, the Supreme Court held
that the felony of driving under the influence is not a “violent felony” under the
language of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2006),
in part because “[i]t is simply too unlike the [18 U.S.C. § 924(e)(2)(B)(ii)] listed
examples . . . to believe that Congress intended the provision to cover it.” 553
U.S. ___, 128 S. Ct. at 1584. Although Begay provides guidance for defining a
violent felony under the ACCA or an analogous sentencing statute, we do not
interpret its holding to require a different outcome in this case or a reexamination
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of our holding in Glover. Thus, we conclude that the district court did not err in
classifying Williams as a career offender.
On remand, the district court complied with our limited mandate by giving
reasons for sentencing Williams to life imprisonment, including his failure to take
responsibility for his actions, his lengthy criminal history, the need to promote
respect for law, deterrence, and the need to protect the public. See 18 U.S.C. §
3553(c). Because the district court properly complied with our limited remand and
Williams’s arguments are meritless, we affirm Williams’s sentence.
AFFIRMED.
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