USA v. Edgar Jamal Gamory

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12129
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR JAMAL GAMORY,
a.k.a. J.B.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:08-cr-00153-TWT-RGV-1
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2 Opinion of the Court 21-12129
____________________
Before ROSENBAUM, LUCK, and EDMONDSON, Circuit Judges.
PER CURIAM:
Edgar Gamory, through counsel, appeals the district court’s
denial of his motion for a sentence reduction, pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. No
reversible error has been shown; we affirm.
I.
In 2008, Gamory was convicted of conspiracy to distribute
and to possess with intent to distribute cocaine and marijuana: a
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (vii), and 846
(Count One).1
A probation officer prepared a Presentence Investigation Re-
port (“PSI”) using the 2008 Sentencing Guidelines. According to
the PSI, Gamory’s drug offense involved more than 150 kilograms
of cocaine: an amount that corresponded to a base-offense level of
38 under U.S.S.G. § 2D1.1(c)(1). Gamory’s total offense level of 44
and his criminal history category of II resulted in a guidelines range
of life imprisonment.
1 Gamory was also convicted of two counts of money laundering, in violation
of 18 U.S.C. §§ 1957 and 2 (Counts Two and Three). Gamory’s sentence on
Counts Two and Three is not at issue in this appeal.
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21-12129 Opinion of the Court 3
Gamory filed objections to the PSI. The sentencing court
overruled Gamory’s objection to the PSI’s drug-quantity finding.
The sentencing court found that a confidential informant and
Gamory’s drug supplier testified credibly about the amount of
drugs involved in Gamory’s offense. Based chiefly on this witness
testimony, the sentencing court found it “absolutely clear” that
Gamory was a “large-scale dealer in cocaine and marijuana” who
was “involved with the sale and distribution of hundreds of kilo-
grams of cocaine.” Because “no doubt” existed that Gamory’s
drug-conspiracy offense “involved more than 150 kilograms of co-
caine,” the sentencing court determined that Gamory qualified for
a base-offense level of 38.
The sentencing court calculated Gamory’s guidelines range
as life imprisonment and then imposed a life sentence. We af-
firmed Gamory’s convictions and sentence on direct appeal.
See
United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).
In October 2020, Gamory moved for a reduced sentence
based on Amendment 782 to the Sentencing Guidelines: an amend-
ment that lowered by two levels the base-offense level for con-
trolled-substance offenses. The district court denied Gamory’s mo-
tion. The district court examined the record that was before the
court at the time of Gamory’s initial sentencing and concluded that
Gamory’s guideline range calculation remained the same under the
amended guidelines. The district court noted that it had credited
witness testimony about various drug transactions involving
Gamory, including testimony establishing that Gamory was
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4 Opinion of the Court 21-12129
involved with over 800 kilograms of cocaine. Because the record
established that Gamory was responsible for an amount of cocaine
“far in excess of 450 kilograms,” the district court determined that
Gamory’s base-offense level remained 38. The district court thus
lacked authority to reduce Gamory’s sentence. The district court
also rejected Gamory’s constitutional challenges to his sentence.
This appeal followed.
II.
We review
de novo whether a district court had authority
to modify a term of imprisonment.
See United States v. Jones, 962
F.3d 1290, 1296 (11th Cir. 2020).
A district court ordinarily may not modify a defendant’s
term of imprisonment once it has been imposed.
See 18 U.S.C. §
3582(c). A district court may, however, reduce a defendant’s sen-
tence if the term of imprisonment was “based on a sentencing
range that has subsequently been lowered by the Sentencing Com-
mission.”
Id. § 3582(c)(2);
see also U.S.S.G. § 1B1.10(a)(1). A dis-
trict court “cannot use an amendment to reduce a sentence in a
particular case unless that amendment actually lowers the guide-
lines range in that case.”
United States v. Hamilton, 715 F.3d 328,
337 (11th Cir. 2013). The defendant “bears the burden of establish-
ing that a retroactive amendment has actually lowered his guide-
lines range.”
Id.
In determining whether the defendant’s guidelines range has
been lowered, the district court calculates the guideline range that
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21-12129 Opinion of the Court 5
would have applied if the amendment were in effect at the time of
the initial sentencing but leaves all other guideline application de-
cisions undisturbed.
Dillon v. United States, 560 U.S. 817, 827
(2010). A section 3582(c)(2) proceeding does not constitute a
de
novo resentencing.
See id. at 831; U.S.S.G. § 1B1.10(a)(3).
Amendment 782 lowered retroactively the sentencing range
applicable to controlled-substance offenses by revising the drug-
quantity tables listed in U.S.S.G. § 2D1.1(c).
See U.S.S.G. App. C.,
Amend. 782. When Gamory was sentenced in 2008, the Sentenc-
ing Guidelines assigned a base-offense level of 38 to controlled-sub-
stance offenses involving 150 kilograms or more of cocaine.
See
U.S.S.G. § 2D1.1(c) (2008). Following Amendment 782, the
amount of cocaine necessary to trigger a base-offense level of 38
increased to 450 kilograms or more.
See U.S.S.G. § 2D1.1(c) (2014).
Thus, to show that Amendment 782 actually lowered his guide-
lines range, Gamory had to prove that his drug-conspiracy offense
involved less than 450 kilograms of cocaine.
To determine the applicable drug-quantity amount for pur-
poses of ruling on a section 3582(c) motion, we have instructed dis-
trict courts to “determine what drug quantity findings it made, ei-
ther explicitly or implicitly, at [the defendant]’s original sentencing
hearing” without entering “any new finding that is inconsistent
with a finding it made in the original sentence proceeding.”
See
Hamilton, 715 F.3d at 340. “Once [the district court] makes a drug
quantity finding that is not inconsistent with any finding it made in
the original sentence proceeding, the district court can then use
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6 Opinion of the Court 21-12129
that finding to calculate a new guidelines range” under the perti-
nent guidelines amendment.
Id.
The district court committed no error in concluding that
Gamory’s guidelines range remained unchanged following
Amendment 782. The district court followed properly the proce-
dure described in
Hamilton.2 To determine whether Gamory was
responsible for at least 450 kilograms of cocaine (the drug quantity
necessary to trigger a base-offense level of 38 under Amendment
782) the district court considered the record available at the time of
Gamory’s initial sentencing. The district court determined that
this pre-existing record established that Gamory was responsible
for more than 450 kilograms of cocaine: a drug-quantity finding
consistent with the sentencing court’s initial finding that Gamory
was responsible for more than 150 kilograms. Based on this drug-
quantity finding, the district court concluded properly that Gamory
was still subject to a base-offense level of 38 under the amended
2 On appeal, Gamory argues that the drug-quantity assessment described in
Hamilton is inapplicable here because the sentencing court used the phrase
“more than” 150 kilograms: a phrase Gamory contends is more specific than
the “at least” language used in
Hamilton. In context, we understand both
phrases to mean at the lowest estimate and that higher numbers might be cor-
rect. For this appeal, we see no material difference between these two phrases.
Cf. United States v. Green, 764 F.3d 1352, 1353, 1356 (11th Cir. 2014) (conclud-
ing that the district court applied properly the process described in
Hamilton
when the sentencing court found the defendant responsible for a drug-quan-
tity amount “well in excess of” and “far above” the triggering amount of co-
caine).
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21-12129 Opinion of the Court 7
guidelines and, thus, that the district court lacked authority to re-
duce Gamory’s sentence.
On appeal, Gamory challenges the credibility of the two wit-
nesses who testified about the quantity of drugs involved in
Gamory’s offense. The district court, however, found these two
witnesses credible. The district court’s “choice of whom to believe
is conclusive on the appellate court unless the judge credits
exceed-
ingly improbable testimony,” or its credibility determination is
“contrary to the laws of nature, or is so inconsistent or improbable
on its face that no reasonable factfinder could accept it.”
United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (empha-
sis in original). Here, the complained-of witness testimony was nei-
ther “contrary to the laws of nature” nor so inconsistent or improb-
able that it was unworthy of credence. Accordingly, we must defer
to the district court’s credibility finding.
We also reject Gamory’s argument that this Court’s state-
ment on direct appeal -- noting that the sentencing court found
Gamory “was involved with more than 150 kilograms of cocaine”
-- constituted the law-of-the-case or otherwise foreclosed the dis-
trict court from making additional drug-quantity findings in ruling
on Gamory’s section 3582 motion. Our recitation of the pertinent
facts of the case on direct appeal constituted no binding factual find-
ing about the quantity of drugs involved in Gamory’s offense. Nor
is a drug-quantity finding of “more than 150 kilograms” incon-
sistent with the district court’s later finding that Gamory was re-
sponsible for more than 450 kilograms of cocaine.
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8 Opinion of the Court 21-12129
On appeal, Gamory seeks to challenge the constitutionality
of his original sentence under
Apprendi v. New Jersey, 530 U.S. 46
(2000). Gamory also seeks to challenge the constitutionality of
U.S.S.G. § 1B1.10(b)(2)(A) as applied to him. These constitutional
challenges to Gamory’s sentence are outside the scope of the dis-
trict court’s authority under section 3582(c)(2).
See United States
v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000) (concluding that section
3582(c) does not authorize the district court to consider “extrane-
ous resentencing issues”; a defendant seeking to challenge the con-
stitutionality of his sentence must raise that argument in a 28
U.S.C. § 2255 proceeding). The district court lacked jurisdiction to
consider these issues; we need not address these arguments on ap-
peal. We also note that we have already rejected Gamory’s
Ap-
prendi argument on direct appeal.
See Gamory, 635 F.3d at 489
n.12;
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1291-92
(11th Cir. 2005) (“Under the law-of-the-case doctrine, the resolu-
tion of an issue decided at one stage of a case is binding at later
stages of the same case.” (alteration omitted)).
AFFIRMED.
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