USA v. Roberto Victores

Filing 920101108

Opinion

[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS F O R THE ELEVENTH CIRCUIT .S. COURT OF APPEALS U ________________________ ELEVENTH CIRCUIT N o . 09-12270 N o n -A rg u m en t Calendar ________________________ D . C. Docket No. 00-01130-CR-WJZ U N IT E D STATES OF AMERICA,
NOV 08, 2010 JOHN LEY CLERK FILED

Plaintiff-Appellee, versus ROBERTO VICTORES, Defendant-Appellant.

________________________ A p p eal from the United States District Court fo r the Southern District of Florida _________________________ (N o v em b er 8, 2010) B efo re PRYOR, MARTIN and KRAVITCH, Circuit Judges. P E R CURIAM:

Roberto Victores, proceeding pro se,1 appeals the denial of his motion to red u ce his 180-month prison sentence imposed following his conviction for p o ssessio n with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). After a thorough review of the record and the parties' briefs, we a f f ir m . In April 2008, Victores filed a counseled motion for reduction of sentence u n d er 18 U.S.C. § 3582(c)(2). Victores alleged that he was eligible for a sentence red u ctio n because of Amendment 706 to the United States Sentencing Guidelines, w h ich reduced the advisory guideline range for most crack cocaine offenses. See g en erally United States v. Moore, 541 F.3d 1323, 1325­26 (11th Cir. 2008). The d istrict court acknowledged that Victores's 180-month sentence was above the am en d ed guideline range, but stated that it "would still impose a sentence of 180m o n th s" because of "the statutory factors under 18 U.S.C. § 3553, and [Victores's] ex ten siv e criminal history." The court therefore denied Victores's motion, and he d id not appeal. In March 2009, Victores filed a second counseled motion to amend his sen ten ce under § 3582(c)(2). Victores again relied on Amendment 706 to establish h is eligibility for § 3582(c)(2) relief, and contended that his significant

Accordingly, we will liberally construe Mr. Victores's pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2

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rehabilitative efforts warranted "revisit[ing]" the courts prior analysis of the 18 U .S .C . § 3553(a) factors. Despite lauding Victores's efforts, the district court ag ain denied relief. Under § 3582(c)(2), a district court may modify a term of imprisonment in th e case of a defendant who was sentenced based on a guideline range that the S en ten cin g Commission subsequently lowered. See 18 U.S.C. § 3582(c)(2). "We rev iew de novo a district court's conclusions about the scope of its legal authority u n d er 18 U.S.C. § 3582(c)(2)." United States v. Jones, 548 F.3d 1366, 1368 (11th C ir. 2008), cert. denied, --- U.S. ----, 129 S. Ct. 1657 (2009). Moreover, "[w]e m ay affirm the district court's judgment on any ground that appears in the record, w h eth er or not that ground was relied upon or even considered by the court b elo w ." Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). W e need not recount the district court's reasoning, because under the law of th e case doctrine the court properly denied Victores's second § 3582(c)(2) motion. Under this doctrine, courts are "bound by findings of fact and conclusions of law" p rev io u sly made in the same case unless "(1) a subsequent trial produces su b stan tially different evidence, (2) controlling authority has since made a contrary d ecisio n of law applicable to that issue, or (3) the prior decision was clearly erro n eo u s and would work manifest injustice." United States v. Stinson, 97 F.3d

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466, 469 (11th Cir. 1996). Mr. Victores did not appeal the denial of his first § 3582(c)(2) motion, and accordingly it became the law of the case. See United S tates v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997). As a result, on th e record before us, his failure to appeal the first motion forecloses the relief he n o w seeks. F o r the foregoing reasons, the denial of Mr. Victores's second motion to red u ce his sentence is AFFIRMED.

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