USA v. Terrance Shelton, (11th Cir. 2007)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 4, 2007

THOMAS K. KAHN

N o . 05-14724

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 03-80098-CR-DTKH

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRANCE SHELTON,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Florida

(J a n u a ry 4, 2007)

B efo re ANDERSON, BARKETT and HULL, Circuit Judges.

P E R CURIAM:

T e rr an c e Shelton appeals his 180-month sentence, imposed after he pled

g u ilty to one count of possession of cocaine base ("crack cocaine"), in violation of 2 1U.S.C. § 841(a)(1), and one count of carrying a firearm during and in relation to a drug trafficking offense, in violation of 18U.S.C. § 924(c). After review, we a ff ir m Shelton's sentence.

I. BACKGROUND T h is is Shelton's second appeal of his sentence. Shelton was originally sen ten ced to 130 months' imprisonment on the drug charge, at the low end of the g u id elin es range, and a mandatory consecutive 60 months' imprisonment on the firearm s charge, for a total sentence of 190 months. In Shelton's first appeal, this C o u rt vacated Shelton's sentence in light of United States v. Booker, 543 U.S 220, 1 2 5 S. Ct. 738 (2005), because the district court had imposed the sentence under a m an d ato ry guidelines scheme. See United States v. Shelton, 400 F.3d 1325 (11th C ir . 2005). We remanded for the district court to exercise its post-Booker d is cr etio n and impose a reasonable sentence in light of the now-advisory g u id e lin e s and the factors in 18U.S.C. § 3553(a). In so doing, we also noted that "th e district court was, and still is, bound by the statutory minimums," and that the d istrict court was required to sentence Shelton to no less than ten years' im p r is o n m e n t on his drug charge and a five-year mandatory, consecutive sentence o n the firearms charge. Id. at 1333 n.10. O n remand, Shelton tried for the first time to challenge the application of the statu to ry, mandatory minimum sentence of ten years, imposed pursuant to 21 U .S .C . § 841(b)(1)(B). Section 841(b)(1)(B) requires a minimum ten-year s en te n c e if a defendant convicted of possession of five or more grams of crack co cain e has a prior felony drug conviction. Shelton argued that this sentencing en h an cem en t violated the Supreme Court's holding in Blakely v. Washington, 542 U .S . 296, 124 S. Ct. 2531 (2004), because it relied on prior convictions that were n o t alleged in his indictment or admitted by him during his guilty plea. Shelton also argued that the district court was precluded from imposing the sentencing en h an cem en t because the district court did not ask whether Shelton admitted or d e n ie d the prior conviction, as required by 21U.S.C. § 851(b).1 T h e district court overruled Shelton's objections, concluding that there was n o Blakely error and that this Court's limited mandate precluded re-opening the § 851(b) issue. The district court further determined that the limited mandate "ex p ressly indicate[d] that the court [was] bound by those statutory minimums" an d that it did not have the discretion to sentence Shelton below the mandatory ten- y ea r minimum required by § 841(b)(1)(B).

A fter considering the § 3553(a) factors, the district court sentenced Shelton to the mandatory minimum 120-month sentence on the drug charge and to the m a n d a to r y consecutive minimum 60-month sentence on the firearms charge, for a to tal of 180 months' imprisonment. This appeal followed.

II. DISCUSSION In this second appeal, Shelton argues that the district court imposed the tenyear mandatory minimum sentence in § 841(b)(1)(B) in violation of Blakely and th e procedural requirements of § 851(b). However, both issues are foreclosed by th e law-of-the-case doctrine.

U n d er the law-of-the-case doctrine, "[a]n appellate decision binds all s u b s e q u e n t 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. T a m a yo , 80 F.3d 1514, 1520 (11th Cir. 1996). Thus, on remand the district court m ay not assert jurisdiction over matters outside the scope of a limited mandate.

United States v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003). Furthermore, lower co u rt rulings that have not been challenged on a first appeal will not be disturbed in a subsequent appeal. See, e.g., United States v. Escobar-Urrego, 110 F.3d 1556, 1 5 6 0 (11th Cir. 1997); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-83 ( 1 1 th Cir. 1989).

T h ere are three exceptions to the law-of-the-case doctrine. A court is not b o u n d by a prior ruling if (1) new evidence is presented, (2) there is an intervening ch an g e in the controlling law, or (3) the prior decision was clearly erroneous and w ill cause manifest injustice. Escobar-Urrego, 110 F.3d at 1561.

H ere, Shelton's second appeal raises claims that either were or could have b ee n raised in his first appeal. Specifically, Shelton's claim that the district court's u s e of his prior conviction violated Blakely was rejected in his first appeal. See S h e lto n , 400 F.3d at 1329. As to Shelton's § 851(b) claim, Shelton never ch allen g ed the district court's compliance with § 851(b) at the initial sentencing or in his first appeal.

In addition, Shelton's claims in his second appeal are outside the scope of th e limited mandate issued in his first appeal. This Court's prior panel opinion in stru cted the district court to resentence Shelton in accordance with Booker, but also in compliance with the statutory, mandatory minimum sentences for each of S h elto n 's offenses, as follows: W e emphasize that the district court was, and still is, bound by the sta tu to ry minimums. For example, Shelton's sentence can be no less th an 120 months' (10 years') imprisonment for the drug charge in co u n t 4. The district court sentenced Shelton to 130 months' im p riso n m en t, which is 10 months higher than the statutory minimum o n count 4. The firearms sentence is not in issue in this case because it carries a mandatory, 5-year minimum, consecutive sentence to f o llo w the drug sentence.

S h elto n , 400 F.3d at 1333 n.10. Thus, Shelton's ten-year mandatory minimum sen ten ce as to the drug charge and five-year mandatory minimum consecutive sen ten ce as to the firearms charge are the law of the case. Furthermore, Shelton h as not shown that any exception to the law-of-the-case doctrine applies.2 G iv en this Court's limited mandate on remand, the district court properly refu sed to reconsider the applicable statutory ten-year minimum term of im p riso n m en t in resentencing Shelton on his drug charge. Shelton's 180-month sen ten ce is affirmed.

A F F IR M E D .

1 The government pointed out that, on remand, the district court gave Shelton an opportunity to file written objections to the prior convictions underlying his § 841 enhancement, but Shelton failed to do so. Further, the government noted that, because Shelton's prior convictions were more than five years old, he was precluded from challenging their validity. See 21U.S.C. § 851(e).

2 Shelton does not argue that there is new evidence or a change in the law. Furthermore, we see no clear error in the district court's application of the § 841(b)(1)(B) enhancement. First, the district court was not required to undertake a § 851(b) inquiry because Shelton's convictions were more than five years old. See United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006) (concluding that the district court was not required to adhere to § 851(b)'s requirement when, pursuant to 21U.S.C. § 851(e), the defendant was barred from challenging convictions that were more than five years old). Second, the district court and this Court are bound by Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S. Ct. 1219, 1223 (1998), until it is explicitly overruled by the Supreme Court. See United States v. Greer, 440 F.3d 1267, 1273-74 (11th Cir. 2006).

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