F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-3298
(D. Kansas)
JERRY LEE W ILLIAM S, (D.Ct. No. 03-CR-10140-JTM )
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Jerry Lee Williams was found guilty following a jury trial of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g), and sentenced as an
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
armed career criminal to 210 months imprisonment. On direct appeal, W illiams
raised seven issues. W e affirmed his conviction, but vacated his sentence due to
the district court’s belief the U nited States Sentencing Guidelines were
mandatory. U nited States v. Williams, 403 F.3d 1188, 1199-1200 (10th Cir.)
(William s I), cert. denied, 126 S.Ct. 178 (2005). Upon remand, the district court
imposed the mandatory minimum sentence— 180 months imprisonment— under
the Armed Career Criminal Act. 18 U.S.C. § 924(e). Exercising jurisdiction
under 28 U.S.C. § 1291, we AFFIRM .
W illiams raises four issues on appeal: (1) in William s I, this Court applied
an incorrect standard in reviewing W illiams’ requested theory of the defense
instruction on “fleeting possession”; (2) the district court erred in giving the jury
a supplemental instruction on the issue of Williams’ knowing possession of the
firearm; (3) mere movement of a firearm from one state to another does not
satisfy the requirement of §922(g) that the firearm be possessed “in or affecting
comm erce”; and (4) the district court erred in sentencing W illiams as an armed
career criminal. W illiams admits his second and third issues are the same as
those raised in William s I, and thus the “law of the case” doctrine applies. W e
conclude his first and fourth issues also merely reiterate those raised in W illiam s
I. See Williams I, 403 F.3d at 1195, n.7 & 1198.
Under the law of the case doctrine, “when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages
-2-
of the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). Further,
“w hen a case is appealed and remanded, the decision of the appellate court
establishes the law of the case and ordinarily will be followed by both the trial
court on remand and the appellate court in any subsequent appeal.” Rohrbaugh v.
Celotex Corp., 53 F.3d 1181, 1183 (10th Cir.1995). “The law of the case
doctrine is intended to prevent continued re-argument of issues already decided . .
. .” Huffman v. Saul Holdings, Ltd. P’ship, 262 F.3d 1128, 1132 (10th Cir. 2001)
(internal quotations and citation omitted). This Court has recognized only three
narrow exceptions to the doctrine: “(1) when the evidence in a subsequent trial is
substantially different; (2) when controlling authority has subsequently made a
contrary decision of the law applicable to such issues; or (3) when the decision
was clearly erroneous and would work a manifest injustice.” M cIlravy v. Kerr-
M cGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000) (internal quotations and
citations omitted). W illiams does not argue these exceptions and rightly so.
None of these circumstances exists here. W e decided all issues raised in this
appeal in William s I. The law of the case doctrine applies.
A FFIR ME D.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
-3-