United States v. Thomas McGowan

Opinion

[DO NOT PUBLISH]

FILED IN THE UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS ELEVENTH CIRCUIT FOR THE ELEVENTH CIRCUIT JANUARY 15, 2009 ________________________ THOMAS K. KAHN CLERK No. 08-14242 Non-Argument Calendar ________________________

D. C. Docket No. 04-00156-CR-T-30-EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS MCGOWAN, a.k.a. Shank,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida _________________________

(January 15, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Thomas McGowan appeals his 180-month sentence for possession of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii), reimposed after we remanded to the district court for reconsideration

in light of Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558 (2007).

We reject McGowan’s argument that the district failed to comply with this

Court’s limited remand.1 The purpose of the remand was “to give [the district

court] an opportunity to indicate whether it would have imposed a different

sentence if it had understood that it had discretion to disagree with the Guidelines

policy expressed in the crack/powder disparity.” United States v. McGowan, No.

05-14932, 276 Fed. App’x 946, 949 (11th Cir. May 6, 2008). However, we

instructed that “[i]f the district court concludes that consideration of the

crack/powder disparity would make no difference in McGowan’s sentence, it need

not conduct a resentencing hearing, and may simply reenter the sentence

previously imposed.” Id.

On remand, the district court issued an order in which it twice recited the

above-quoted instructions and stated that, after reviewing McGowan’s file, it was

reimposing a 180-month sentence. Thus, McGowan has shown no reversible error

1 We have plenary review over the district court’s interpretation of our mandate. Ad- Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 943 F.2d 1511, 1517 (11th Cir. 1991). A district court “may not alter, amend, or examine the mandate, or give any further relief or review, but must enter an order in strict compliance with the mandate.” Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir. 1985).

2 on remand. We also reject McGowan’s argument that the district court’s

references to Amendment 706 of the Sentencing Guidelines and 18 U.S.C.

§ 3582(c)(2) indicate that the district court misunderstood this Court’s mandate.

AFFIRMED.