United States Court of Appeals,
Eleventh Circuit.
No. 95-5063.
UNITED STATES of America, Plaintiff-Appellee,
v.
Alvaro ESCOBAR-URREGO, Defendant-Appellant.
May 1, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 92-300-CR-UUB), Ursula Ungaro-Benages,
Judge.
Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*,
Senior Circuit Judge.
MESKILL, Senior Circuit Judge:
Alvaro Escobar-Urrego pleaded guilty to importing liquified
cocaine into this country. At his sentencing, the United States
District Court for the Southern District of Florida, Ungaro-
Benages, J., decided that Escobar-Urrego had imported 2,036 grams
of usable cocaine and sentenced Escobar-Urrego accordingly. See
United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991)
(sentences for drug offenders to be based on "usable" quantity of
drugs possessed by defendant). After Escobar-Urrego was sentenced,
the United States Sentencing Guidelines (Guidelines) were amended
retroactively to state that a drug offender's sentence should be
based on only the quantity of drugs possessed by the defendant that
could be "used." Guidelines App. C, Amendment 484 (amending
Guidelines § 2D1.1, Application Note 1). Escobar-Urrego then moved
to have his sentence recalculated based on the amendment, and the
*
Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for
the Second Circuit, sitting by designation.
district court denied Escobar-Urrego's motion.
We conclude that the question of how much usable cocaine
Escobar-Urrego imported has already been decided, and that Escobar-
Urrego is therefore barred by the law-of-the-case doctrine from
relitigating the issue. Accordingly, we affirm the decision of the
district court.
BACKGROUND
I. Sentencing
In May 1992, Alvaro Escobar-Urrego arrived at the Miami
International Airport from Columbia and presented his luggage to
United States Customs Agents. The Customs Agents performed a field
test on a liquid contained in two bottles Escobar-Urrego was
carrying, and the liquid tested positive for cocaine.
Escobar-Urrego was arrested and indicted for importing cocaine
into the United States in violation of 21 U.S.C. §§ 952(a),
960(a)(1) and 18 U.S.C. § 2 (Count I), and for possessing cocaine
with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2 (Count II). The government eventually entered into
a plea agreement with Escobar-Urrego, and pursuant to that
agreement, Escobar-Urrego pleaded guilty to Count I and the
government dropped Count II.
To sentence Escobar-Urrego, the district court had to
determine how much cocaine Escobar-Urrego imported, and at the
time, the issue was controlled by United States v. Rolande-Gabriel,
938 F.2d 1231 (11th Cir.1991). In that case, Mary Rolande-Gabriel
pleaded guilty to importing a liquid which contained cocaine. Id.
at 1233. A laboratory test determined that the total weight of the
liquid was 241.6 grams. Id. at 1232. However, before the cocaine
could be used as intended, the cocaine had to be separated from the
liquid, and once that was done, the liquid contained only 72.2
grams of usable cocaine. Id. at 1233, 1235. The district court
based Rolande-Gabriel's sentence on 241.6 grams of cocaine. Id. at
1233.
On appeal, this Court stated:
Rolande-Gabriel's sentence was based on a weight of 241.6
grams, despite the fact that only 72 grams of the mixture were
usable; however, a defendant possessing a usable mixture of
cocaine ... weighing 75 grams would receive a significantly
smaller sentence than Rolande-Gabriel. This is manifestly
unjust and defeats the Sentencing Guidelines' stated policy of
sentencing uniformity and proportionality.
Id. at 1237. Accordingly, this Court held that a defendant's
sentence should be based on only the "usable" quantity of drugs
that the defendant possessed. Id. Here, because Escobar-Urrego
imported a mixture that contained both usable cocaine and an
unusable liquid substance, Rolande-Gabriel mandated that Escobar-
Urrego's sentence be based on only the usable cocaine that Escobar-
Urrego imported.
The Drug Enforcement Agency (DEA) measured the liquid Escobar-
Urrego imported and determined that its total weight was 4,173
grams. The DEA also weighed the liquid and noted its purity, and
determined that the total quantity of cocaine Escobar-Urrego
imported, minus the unusable liquid, was 2,036 grams. At Escobar-
Urrego's sentencing, his defense attorney stated that he had
consulted with an independent chemist about the DEA's test, and
that the independent chemist concluded that the DEA's test was
accurate. However, Escobar-Urrego maintained that he imported only
258 grams of cocaine.1 In an effort to determine how much cocaine
Escobar-Urrego actually imported, the district court engaged in the
following exchange:
The Court: When the DEA lab weighed the cocaine did they
distill the cocaine from the liquid or did they just
weigh the liquid?
Defense Counsel: They weighed the liquid and noted its
purity.
The Court: Right....
....
The Court: Isn't there a particular discussion [in the
Guidelines] of how the drugs are supposed to be weighed
in [this case]?
Defense Counsel: Judge, the case [apparently referring to
Rolande-Gabriel ] that Mr. Escobar-Urrego brought with
him ... talks about cases such as this where the
narcotics are not consumable in their present state, and
that case suggests that you take away those portions that
are not usable and use only the actual drug. And that's
essentially what happened in this case.
The Court: Well, I appreciate that you and the government
don't have a dispute about this....
Defense Counsel: The reason I don't have a dispute ... is
because I conferred with ... an independent chemist ...
and he told me that that was an accurate report, an
accurate reading for purposes of total offense conduct
for the guidelines.
(emphasis added).
The district court stated on the record that it was "satisfied
that the amount of drugs determined by the DEA chemist [2,036
grams] is the correct amount of drugs." The district court never
specifically found that Escobar-Urrego had imported 2,036 grams of
1
How Escobar-Urrego arrived at the figure of 258 grams is
unclear. The government contends that the figure was provided by
"jailhouse chemists" while Escobar-Urrego claimed at his
sentencing that his family in Columbia provided the figure.
usable cocaine. However, the district court understood that
Escobar-Urrego's sentence was to be based on only the usable
cocaine that Escobar-Urrego imported, and therefore, when the
district court concluded that 2,036 grams was "the correct amount
of drugs," it is clear that the district court did in fact decide
that Escobar-Urrego imported 2,036 grams of usable cocaine.
Having decided that Escobar-Urrego imported 2,036 grams of
usable cocaine, the district court concluded that Escobar-Urrego's
base offense level was twenty-eight. See Guidelines § 2D1.1(c)(6)2
& Note to Drug Quantity Table (A). The court decided that no
adjustments to the base level were warranted, and that Escobar-
Urrego had no criminal history points, see Guidelines § 4A1.1-.3.
Therefore, the court concluded that the proper sentencing range was
78-97 months, see Guidelines § 5A, Zone D, and sentenced Escobar-
Urrego to 78 months imprisonment to be followed by four years of
supervised release.
Escobar-Urrego appealed his sentence, and although he raised
several issues, he did not challenge the district court's
conclusion that he imported 2,036 grams of usable cocaine. This
Court affirmed the district court. See United States v. Escobar-
Urrego, 28 F.3d 116 (11th Cir.1994) (table of decisions).
II. The Amendment to the Guidelines and the Second Proceeding
On November 1, 1993, about seven months after Escobar-Urrego
was sentenced, Amendment 484 was added to the Guidelines. The
2
When Escobar-Urrego was sentenced, Guidelines § 2D1.1(c)(8)
determined his base offense level. In 1994, the Guidelines were
amended, and although Guidelines § 2D1.1(c)(8) remained
unchanged, it was renumbered Guidelines § 2D1.1(c)(6). For
convenience, the Court is using the current numbering.
amendment states in pertinent part:
Mixture or substance does not include materials that must be
separated from the controlled substance before the controlled
substance can be used.... If such material cannot readily be
separated from the mixture or substance ... the court may use
any reasonable method to approximate the weight of the mixture
or substance to be counted.
Guidelines App. C, Amendment 484 (emphasis added) (amending
Guidelines § 2D1.1, Application Note 1). The amendment was made
retroactive, see Guidelines § 1B1.10(a) & (c), and therefore
applies to Escobar-Urrego's sentence.
Escobar-Urrego then made a motion with the district court
pursuant to 18 U.S.C. § 3582(c)(2), which allows an imprisoned
defendant to move for a reduced sentence if the Guidelines are
changed. Escobar-Urrego argued that under the amendment to the
Guidelines, his sentence should be recalculated and based on only
the amount of cocaine that he imported that could be "used." The
government moved to deny Escobar-Urrego's motion, arguing that the
same issue was raised at Escobar-Urrego's sentencing and decided
against him.
United States Magistrate Judge Stephen T. Brown, to whom the
case had been referred, recommended that Escobar-Urrego's motion be
denied. After Escobar-Urrego objected, the district court adopted
the magistrate judge's recommendation. Escobar-Urrego then filed
this appeal.
DISCUSSION
On appeal, Escobar-Urrego argues that under Amendment 484, his
sentence should be based on only the usable quantity of cocaine
that he imported. Escobar-Urrego argues that, as a factual matter,
the sentence imposed on him was not based on the usable amount of
cocaine that he imported. Rather, while Escobar-Urrego seemingly
concedes that weighing the liquid and noting its purity will show
the total amount of cocaine in the liquid, Escobar-Urrego contends
that this method will not show how much cocaine could be extracted
from the liquid and actually rendered usable. Because the
amendment requires that a defendant's sentence be based on only the
usable quantity of drugs that a defendant imported, Escobar-Urrego
argues that the cocaine should be retested and that his sentence
should be modified accordingly.
In response, the government argues that the same issue was
raised at Escobar-Urrego's sentencing and decided against him. The
government points out that at Escobar-Urrego's sentencing, pursuant
to Rolande-Gabriel, the district court concluded that Escobar-
Urrego imported 2,036 grams of usable cocaine. The government
contends that because the district court has already decided that
Escobar-Urrego imported 2,036 grams of usable cocaine, there is no
need to revisit that decision. We agree.
I. The Law of the Case
While the government never specifically identifies its legal
theory, it is clear that the government is relying on the
law-of-the-case doctrine. 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. Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 815-16, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988).
"Law of the case rules have developed to maintain consistency and
avoid reconsideration of matters once decided during the course of
a single continuing lawsuit." 18 Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 4478,
at 788 (1981).3
While the law-of-the-case doctrine has several arms, see 18
Wright et al., supra, § 4478, the only one relevant here deals with
lower court rulings that have not been challenged on a first
appeal. As one court explained:
Under the law of the case doctrine, 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.
Williamsburg Wax Museum v. Historic Figures, 810 F.2d 243, 250
(D.C.Cir.1987); see also United States v. Fiallo-Jacome, 874 F.2d
1479, 1481-83 (11th Cir.1989) (criminal defendant failed to raise
an issue on the defendant's first appeal, and when defendant tried
to raise the issue in a subsequent appeal, the court refused to
consider the issue, stating that the defendant would not be given
"two bites at the appellate apple") (quotation omitted);
Silverberg v. Paine, Webber, Jackson & Curtis, 724 F.2d 1456, 1457
(11th Cir.1983); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d
Cir.1981) ("It would be absurd that a party who has chosen not to
argue a point on a first appeal should stand better as regards the
law of the case than one who has argued and lost."); 18 Wright et
al., supra, § 4478 at 801 ("If the matter is omitted from one
appeal, ... it may be held foreclosed on a later appeal to the same
court as a matter of law of the case.").
3
Because Escobar-Urrego has moved to modify a judgment, see
18 U.S.C. § 3582(c)(2), the doctrines of res judicata and
collateral estoppel do not apply. Arizona v. California, 460
U.S. 605, 619, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983).
Here, the issue that Escobar-Urrego has raised has already
been decided. At Escobar-Urrego's sentencing, the district court
concluded pursuant to Rolande-Gabriel, 938 F.2d at 1237, that
Escobar-Urrego imported 2,036 grams of "usable" cocaine. Escobar-
Urrego now seeks to receive the benefit of Amendment 484, which
requires that his sentence be based on the quantity of cocaine that
"can be used." See Guidelines App. C, Amendment 484 (amending
Guidelines § 2D1.1, Application Note 1). Rolande-Gabriel 's
"usable" standard and Amendment 484's "can be used" standard are
plainly identical.
Because Escobar-Urrego had the opportunity to appeal the
district court's decision that he imported 2,036 grams of usable
cocaine but did not, that decision is the law of the case, and
subject to the discussion below, precludes Escobar-Urrego from
relitigating the question of how much usable cocaine he imported.
II. Exceptions to the Law-of-the-Case Doctrine
In an oft-quoted passage, the Fifth Circuit stated:
While the "law of the case" doctrine is not an inexorable
command, a decision of a legal issue or issues ... establishes
the "law of the case" and must be followed in all subsequent
proceedings in the same case in the trial court or on a later
appeal in the appellate court, unless the evidence on a
subsequent trial was substantially different, controlling
authority has since made a contrary decision of the law
applicable to such issues, or the decision was clearly
erroneous and would work a manifest injustice.
White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967) (footnotes
omitted);4 Litman v. Massachusetts Mutual Life Ins. Co., 825 F.2d
4
This Court has decided to be bound by decisions of the
Fifth Circuit Court of Appeals made on or before September 30,
1981, the day before the Fifth Circuit was split into the Fifth
and Eleventh Circuits. Bonner v. City of Prichard, Alabama, 661
F.2d 1206, 1209 (11th Cir.1981) (in banc).
1506, 1510 (11th Cir.1987) (same).
Here, no new evidence has been called to this Court's
attention, and so the first White exception to the law-of-the-case
doctrine does not apply.
Further, there has been no change in the law. The law—that
a defendant's sentence should be based on only the amount of usable
drugs possessed by the defendant—has remained the same, only the
source of the law has changed. See Rolande-Gabriel, 938 F.2d at
1237; Guidelines App. C, Amendment 484 (amending Guidelines §
2D1.1, Application Note 1). Therefore, this exception does not
apply.
Finally, the district court's decision was not a clear error.
As discussed above, Escobar-Urrego seemingly concedes that weighing
the liquid and noting its purity will show how much total cocaine
was in the liquid. Escobar-Urrego contends, however, that weighing
the cocaine and noting its purity will not show how much cocaine
could be extracted from the liquid and actually rendered usable.
Everyone at Escobar-Urrego's sentencing understood that Escobar-
Urrego's sentence was to be based on only the amount of usable
cocaine that Escobar-Urrego imported. After that point was
established, Escobar-Urrego's counsel informed the district court
that an independent chemist had concluded that 2,036 grams was
accurate for sentencing purposes. While Escobar-Urrego's chemist
may have been wrong, it is not clear to us that he was wrong, and
it was not a clear error for the district court to rely on Escobar-
Urrego's own chemist.
Accordingly, none of the exceptions to the law-of-the-case
doctrine are applicable here, and Escobar-Urrego is precluded from
relitigating the question of how much usable cocaine he imported.5
CONCLUSION
We conclude that Escobar-Urrego is barred by the
law-of-the-case doctrine from relitigating the question of how much
usable cocaine he imported. Accordingly, the district court's
order denying Escobar-Urrego's motion is AFFIRMED.
5
We note that litigants who have never raised an issue have
been held to have waived the issue for subsequent stages of the
same litigation. See United States v. Fiallo-Jacome, 874 F.2d
1479, 1481-83 (11th Cir.1989) (issue was never raised in the
district court or on defendant's first appeal even though
defendant may have known of the issue during his trial, and this
Court held that the issue was waived for defendant's second
appeal). Because the question of how much usable cocaine
Escobar-Urrego imported was raised at Escobar-Urrego's
sentencing, we need not decide how this case would be resolved if
the issue had never been raised.