U.S. v. Stratton, 11th Cir. Mar. 13, 2008
06-10080 U.S. v. Stratton
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM: This case is before us on remand from the United States Supreme Court for consideration of Stratton’s sentence in light of Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558 (2007). Stratton v. United States, 552 U.S. ___, 128 S. Ct. 859 (2008). This panel previously affirmed Stratton’s 235-month sentence for conspiracy to possess with intent to distribute crack and powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. See United States v. Stratton, 205 F. App’x 791 (11th Cir. 2006). After reconsideration, we reinstate our previous opinion to the extent it rejected Stratton’s claims that (1) United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), is unconstitutional, (2) Booker’s remedial holding implicates ex post facto and due process concerns, (3) the district court violated Booker by its extra-verdict fact-findings and enhancements, and (4) the district court judge sua sponte should have recused. We also reinstate our previous order to the extent it concluded that Stratton’s claim that 21 U.S.C. § 846 is unconstitutional was barred by the law-of-the-case doctrine because he did not raise it in his first appeal.
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However, we reconsider our previous opinion to the extent it rejected Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining a reasonable sentence. … U.S. v. Stratton.
