Filed: Nov. 05, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 12-12014 Date Filed: 11/05/2014 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-12014 Non-Argument Calendar _ D.C. Docket No. 6:02-cr-00008-BAE-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WILLIAM ERIC GREEN, a.k.a. Cuzzo, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Georgia _ (November 5, 2014) Before ED CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges. PER CURIAM:
Summary: Case: 12-12014 Date Filed: 11/05/2014 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-12014 Non-Argument Calendar _ D.C. Docket No. 6:02-cr-00008-BAE-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WILLIAM ERIC GREEN, a.k.a. Cuzzo, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Georgia _ (November 5, 2014) Before ED CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges. PER CURIAM: ..
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Case: 12-12014 Date Filed: 11/05/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12014
Non-Argument Calendar
________________________
D.C. Docket No. 6:02-cr-00008-BAE-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM ERIC GREEN,
a.k.a. Cuzzo,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(November 5, 2014)
Before ED CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:
Case: 12-12014 Date Filed: 11/05/2014 Page: 2 of 6
William Green, proceeding pro se, appeals the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence. Green contends that he is
entitled to a reduced sentence based on Amendment 750 to the sentencing
guidelines and that, under the law of the case doctrine, the district court was
required to grant a sentence reduction under Amendment 750 because it had
granted one earlier under Amendment 706.
I.
On November 4, 2002, Green pleaded guilty to one count of conspiracy to
possess with the intent to distribute and conspiracy to distribute crack cocaine, in
violation of 21 U.S.C. § 846, and one count of carrying a firearm during and in
relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A).
Based on a total offense level of 34 1 and a criminal history category of V, 2 Green’s
advisory guidelines range for the drug offense was 235 to 240 months. The district
court imposed a sentence at the high end of the advisory guidelines (240 months)
and added the mandatory minimum 60 months for the firearms offense, for a total
sentence of 300 months imprisonment.
1
At sentencing, Green objected to the drug quantity determination of 567 grams, and the
district court overruled the objection. Green appealed his sentence and challenged the drug
quantity determination and we affirmed. United States v. Green, 87 F. App’x 712 (11th Cir.
2012) (Table).
2
Green’s criminal history included convictions for possession of cocaine, aggravated assault,
aggravated battery, robbery by intimidation, obstruction of an officer, and possession of a sawed-
off shotgun.
2
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On March 12, 2008, Green filed his first § 3582(c)(2) motion to reduce his
sentence, asserting generally that amendments to the sentencing guidelines
provided a basis for relief. In granting Green’s motion, the district court
determined that Amendment 706 — which reduced the base offense levels for
crimes involving crack cocaine — applied to Green’s case retroactively. The court
reduced Green’s total offense level to 32, calculated an amended advisory
guidelines range of 188 to 235 months, and re-sentenced Green to 235 months plus
60 months for the firearms offense, for a total sentence of 295 months. Green
moved for reconsideration of the extent of the reduction and the district court
denied the motion. This Court affirmed. United States v. Green, 347 F. App’x 420
(11th Cir. 2009).
On December 6, 2011, Green filed his second § 3582(c)(2) motion, asserting
that his sentence should be reduced under Amendment 750, which altered the crack
cocaine quantity tables listed in U.S.S.G. § 2D1.1(c). In deciding Green’s motion,
the district court acknowledged that Amendment 750 reduced Green’s total offense
level to 30 and his advisory guidelines range to 151 to 188 months. Nonetheless,
the court found that a sentence reduction was not appropriate, reasoning as follows:
A review of this defendant’s record plainly shows that the 295-month
sentence he is presently serving is richly deserved. The defendant was
attributed with over .5 kilogram of crack cocaine, which he stashed in
or sold from at least three residences. Numerous firearms were
stashed at these homes as well, including several assault weapons. The
homes in which these firearms were found were occupied by, and/or
3
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frequented by, several children. This defendant was deeply immersed
in drug trafficking and it is clear that the public needs to be protected
from him as long as possible.
The court denied Green’s motion. The court also denied his motion for
reconsideration, noting that its previous order had “made plain [the court’s]
perception that [Green] is a dangerous individual, from whom the public should be
protected as long as possible, pursuant to 18 U.S.C. § 3553(a).”
This is Green’s appeal.
II.
We review only for abuse of discretion a district court’s denial of a
§ 3582(c)(2) motion for a sentence reduction. United States v. Webb, 565 F.3d
789, 792 (11th Cir. 2009).
When the Sentencing Commission makes retroactive changes to the
sentencing guidelines under 28 U.S.C. § 994(o), a district court has discretion to
reduce any sentence that was imposed “based on” the unaltered guidelines. 18
U.S.C. § 3582(c)(2). Before granting such a reduction, however, the district court
must engage in a two-part analysis. United States v. Bravo, 203 F.3d 778, 780
(11th Cir. 2000). First, the court must recalculate the sentence under the amended
guidelines. See
id. Second, the court must “decide whether, in its discretion, it
will elect to impose the newly calculated sentence under the amended guidelines or
retain the original sentence.”
Id. at 781. This decision should take into account the
4
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statutory factors in 18 U.S.C. § 3553(a), which include the nature and
circumstances of the offense, the history and characteristics of the defendant, and
the need to protect the public. See United States v. Talley, 431 F.3d 784, 787–88
(11th Cir. 2005) (citing 18 U.S.C. § 3553(a)). The court is not required to discuss
every § 3553(a) factor as long as the record reflects that the pertinent factors were
considered. United States v. Williams,
557 F.3d 1254, 1256 (11th Cir. 2009).
Here, the district court did not abuse its discretion by denying Green’s
§ 3582(c)(2) motion. The court followed the two-part analysis, first correctly
calculating Green’s sentence under the amended guidelines and then considering
whether to impose a new sentence or retain the original sentence. The court cited
the § 3553(a) factors and explained that its decision to retain the original sentence
was influenced by the amount of cocaine involved in the offense, the number and
type of weapons found in the drug houses (all of which were occupied by
children), the fact that Green was “deeply immersed in drug trafficking,” and the
need to protect the public. Those are all valid sentencing considerations, and this
Court will not second-guess them. See United States v. Langston, 590 F.3d 1226,
1237 (11th Cir. 2009) (“The weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court, and we will not
substitute our judgment in weighing the relevant factors.”) (quotation marks
omitted).
5
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Also, the district court was not required by the law of the case doctrine to
grant Green’s second § 3582(c)(2) motion simply because it granted his first. The
law of the case doctrine, which prevents relitigation of an issue that has been
decided at an earlier stage of the same proceeding,3 has no application where, as
here, a defendant seeks a second sentence reduction based on a different
amendment to the sentencing guidelines. Cf. United States v. Vautier, 144 F.3d
756, 762 (11th Cir. 1998) (“[T]he district court’s discretionary decision to depart
from the amended guidelines range is not dictated or mandated by either its prior
decision to depart or the extent of the prior departure.”). The district court did not
abuse its discretion when it decided that a further reduction of Green’s sentence
was not warranted.
AFFIRMED.
3
See United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996).
6
