[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11436 ELEVENTH CIRCUIT
DECEMBER 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 91-10021-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GASPAR CORTINA,
a.k.a. Johnny,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 28, 2009)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Juan Gaspar Cortina, proceeding pro se, appeals the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion for a reduction in sentence, based on
Amendment 505 to the Sentencing Guidelines, which reduced the highest base
offense level for all drug offenses to level 38.
On appeal, Cortina asserts that the district court’s denial of his motion was
based upon clearly erroneous factual findings, as its order stated that his offense
involved “thousands” of kilograms of cocaine, whereas he was only found
responsible at sentencing for 1,340 kilograms. Cortina also argues that the present
motion was not barred by the law of the case doctrine, despite the fact that the
district court had denied two previous § 3582(c)(2) motions in which he had sought
a sentence reduction based on Amendment 505. This motion was not barred, he
says, because it included new evidence concerning his post-sentencing
rehabilitation activities.
“We review a district court’s decision whether to reduce a sentence pursuant
to § 3582(c)(2) for abuse of discretion.” United States v. White, 305 F.3d 1264,
1267 (11th Cir. 2002). A district court’s application of the law of the case doctrine
is reviewed de novo. Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285
(11th Cir. 2004).
Section 3582(c)(2) gives federal courts the authority to consider reducing the
sentence “of a defendant who has been sentenced to a term of imprisonment based
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on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Amendment 505 amended the drug
quantity table in U.S.S.G. § 2D1.1 by reducing the highest offense level for all
drug offenses to 38 and eliminating levels 40 and 42. U.S.S.G. App. C., Amend.
505. Following the enactment of Amendment 505, a defendant responsible for 150
kilograms or more of cocaine is subject to a base offense level of 38. See id.
Amendment 505 was later made retroactive by Amendment 536. U.S.S.G. App.
C., Amend. 536.
“Under the law of the case doctrine, both the district court and the court of
appeals are bound by findings of fact and conclusions of law made by the court of
appeals in a prior appeal in the same case.” United States v. Stinson, 97 F.3d 466,
469 (11th Cir. 1996). When a litigant fails to appeal an issue decided by the
district court, the law of the case doctrine precludes the litigant from raising that
issue in a subsequent appeal. United States v. Escobar-Urrego, 110 F.3d 1556,
1560-61 (11th Cir. 1997). The law of the case doctrine does not apply if: (1) new
evidence is presented; (2) there is an intervening change in the law that dictates a
different result; or (3) the prior decision is clearly erroneous and would result in
manifest injustice. Id. at 1561.
Even assuming that Cortina’s latest motion is not barred by the law of the
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case, the district court still did not abuse its discretion in denying the motion. As
the court pointed out, Cortina was responsible for far more than the 150 kilograms
of cocaine that would now justify an offense level of 38; he was responsible for
1,340 kilograms, which is nearly nine times the topping out amount. That the
district court said Cortina was responsible for thousands of kilograms does not
change the core basis of its reasoning, which is that Cortina was responsible for so
much more than the 150 kilogram amount requisite for offense level 38 that the
court would not sentence him to less than the 340-month sentence he received even
if the court was starting over from scratch and operating under the amended
guidelines.
AFFIRMED.
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