[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12252 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:07-cr-14063-DLG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
MARSHALL LEE MITCHELL,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 23, 2011)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Marshall Lee Mitchell appeals his sentence of imprisonment for 120
months, which was imposed on remand from this Court, for conspiracy to possess
and possession with intent to distribute five or more grams of crack cocaine, 21
U.S.C. §§ 841(a)(1), 846. Mitchell argues that the district court erred when it
deferred to the jury’s finding of drug quantity at his original sentencing. Mitchell
also argues that he should be resentenced under the Fair Sentencing Act of 2010.
See Pub. L. 111-220, § 2(a)(2), 124 Stat. 2372, codified at 21 U.S.C. §
841(b)(1)(B)(iii) (2010). We affirm.
During his initial sentencing proceeding, Mitchell failed to object to either
the jury’s special verdict, which found him responsible for five or more grams of
crack, or the application of a ten-year mandatory minimum sentence triggered by
the jury’s finding. Mitchell challenged the finding of drug quantity for the first
time on appeal. We rejected his argument as follows: “Although Mitchell argues
that the jury should have determined what amount [he] intended to distribute, he
cites no caselaw that would require such a special verdict. Mitchell was
responsible for all the crack cocaine purchased in the scope of the conspiracy,
whether the drugs were intended for resale or personal use.” United States v.
Mitchell, 366 Fed. Appx. 6, 16 (11th Cir. 2010) (citations omitted). We remanded
for resentencing on other grounds.
2
Following our remand, Mitchell contested the applicability of the ten-year
mandatory minimum sentence as to each count and argued that the district court
should disregard as erroneous the jury’s finding of drug quantity. The district
court rejected Mitchell’s argument based on our ruling and sentenced him to
concurrent terms of the mandatory minimum sentence of imprisonment on both
counts.
We review de novo the compliance with our mandate from a previous
appeal. United States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). Under the
mandate rule, a district court acting on remand cannot vary or examine our
mandate “for any other purpose than execution; or give any other or further relief;
or review it, even for apparent error, upon a matter decided on appeal; or
intermeddle with it, further than to settle so much as has been remanded.” United
States v.Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). A district court abuses its
discretion if it exceeds the scope of our mandate. Id. In addition, the law of the
case doctrine bars reconsideration of “an issue decided at one stage of a case . . .
[raised] at later stages of the same case.” United States v. Escobar-Urrego, 110
F.3d 1556, 1560 (11th Cir. 1997).
We reject Mitchell’s argument that the district court erred by refusing to
revisit the jury’s finding of drug quantity. Our decision in Mitchell’s first appeal
3
that the jury’s finding of drug quantity was entitled to deference foreclosed that
issue from being revisited on remand, and the district court correctly declined to
do so. Mitchell’s failure to contest the application of the ten-year mandatory
minimum sentence, in either his initial sentencing or first appeal, also means that
the decision of the district court on that issue became the law of the case, which
barred Mitchell from contesting it for the first time at resentencing.
Mitchell’s remaining argument about the Fair Sentencing Act is foreclosed
by precedent. The Act does not apply to a defendant, like Mitchell, convicted
before its effective date. United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.
2010). Mitchell was arrested, convicted, and twice sentenced before that date.
Mitchell is not entitled to be resentenced.
AFFIRMED.
4