[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
DEC 14, 2006
No. 05-16949
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 91-00208-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS GUILLERMO RESTREPO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 14, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Luis Guillermo Restrepo, a federal prisoner appearing pro se, appeals the
district court’s denial of his second motion to modify the term of his imprisonment
under 18 U.S.C. § 3582(c)(2). No reversible error has been shown; we affirm.
Restrepo was convicted of various narcotics offenses. He was assigned an
offense level of 42 and was sentenced to 360 months’ imprisonment. In 1998,
Restrepo filed his first section 3582(c)(2) motion (the “first motion”), arguing that
his offense level should be reduced from 42 to 38 and his sentence modified based
on Amendment 505 to the Sentencing Guidelines, which reduced the upper limits
of the U.S.S.G. § 2D1.1 drug quantity table. The United States District Court for
the Southern District of Florida denied this motion, noting that the amount of
cocaine base attributed to Restrepo significantly exceeded the minimum necessary
for an offense level of 38 and therefore supported an upward departure. Restrepo
did not appeal.
In 2004, Restrepo filed a second section 3582(c)(2) motion for a reduction
in sentence (the “second motion”). In this motion, he repeated arguments about
reducing the maximum offense level attributable to him.1
The district court denied Restrepo’s second motion, concluding, among
other things, that Congress did not intend for prisoners to file successive motions
to reduce a sentence based on retroactive application of the same Guideline
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In addition, Restrepo argued that the district court should consider the “underlying foundations”
of the Supreme Court’s decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), in considering
his motion. He also sought relief under the writ of audita querela and the writ of error coram nobis.
But Restrepo does not renew these arguments on appeal; they are abandoned. See United States v.
Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (explaining that a party abandons an issue when he fails
to raise it in his initial brief on appeal).
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amendment. The district court also explained that, under the law-of-the-case
doctrine, the court should not consider the merits of Restrepo’s renewed argument
about application of Amendment 505. In addition, the district court concluded
that Restrepo did not comply with Southern District of Florida Local Rule 7.1(F),
which requires that, when a party makes a motion to one judge and the motion is
denied, if the party later requests the same relief from a different judge, the party is
required to attach to the new motion an affidavit setting forth the circumstances of
the original motion, the nature of the ruling on the original motion, and new facts
or circumstances that did not exist or were not shown with the original motion.2
On appeal, Restrepo argues that 18 U.S.C. § 3582(c)(2) does not restrict the
number of motions for a reduction in sentence that he can file. He also asserts that
the law-of-the-case doctrine does not limit our review of his second motion
because he did not appeal the denial of his first motion. Restrepo does not address
the district court’s conclusion that his second motion did not comply with Local
Rule 7.1(F).
We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Vautier, 144
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The district court noted that the district court judge who reviewed Restrepo’s first motion had
died.
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F.3d 756, 759 n.3 (11th Cir. 1998). “The application of an abuse-of-discretion
review recognizes the range of possible conclusions the trial judge may reach.”
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004). Therefore,
By definition under the abuse of discretion standard of review there
will be occasions in which we affirm the district court even though
we would have gone the other way had it been our call. That is how
an abuse of discretion standard differs from a de novo standard of
review. As we have stated previously, the abuse of discretion
standard allows a range of choice for the district court, so long as that
choice does not constitute a clear error of judgment.
Id. (internal quotation and alteration omitted).
“Under the law-of-the-case doctrine, an issue decided at one stage of a case
is binding at later stages of the same case.” United States v. Escobar-Urrego, 110
F.3d 1556, 1560 (11th Cir. 1997). Pursuant to one arm of this doctrine, lower
court rulings that have not been challenged on a first appeal will not be disturbed
in a subsequent appeal. See id. (explaining that “a legal decision made at one
stage of the litigation, unchallenged in a subsequent appeal when the opportunity
existed, becomes the law of the case for future stages of the same litigation, and
the parties are deemed to have waived the right to challenge that decision at a later
time”); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-83 (11th Cir. 1989)
(deciding that a defendant waives his right to raise in second appeal issues not
raised in first appeal). But a court is not bound by a prior ruling if (1) new
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evidence that is substantially different is presented; (2) controlling authority has
made a contrary decision of the law applicable to such issues; or (3) the decision
was clearly erroneous and would work a manifest injustice. Escobar-Urrego, 110
F.3d at 1561.
Here, the district court previously rejected Restrepo’s first motion to reduce
his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 505. Restrepo
failed to appeal that decision when the opportunity existed. He has not identified
new evidence or intervening law, nor has he alleged that the district court
committed clear error in its original decision. And Restrepo does not challenge
the district court’s determination that he failed to comply with Local Rule 7.1(F)
in filing his second motion. In the light of all of these circumstances, the district
court did not abuse its discretion in denying Restrepo’s second section 3582(c)(2)
motion.
AFFIRMED.
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