United States v. John Kitzelman , 223 F. App'x 911 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 1, 2007
No. 06-13550 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80042-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN KITZELMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 1, 2007)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
This is John Kitzelman’s second time to appear before us to appeal a 188-
month prison sentence he received as a result of his April 2004 guilty plea to one
count of being a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). On appeal of his first 188-month sentence, we remanded his case to the
district court to “resentence him, treating the sentencing guidelines as advisory
rather than mandatory,” in light of the Supreme Court’s decision in United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). See United States v. Kitzelman
(Kitzelman I), 140 Fed. Appx. 931, 932 (11th Cir. 2005) (unpublished).
Complying with those instructions, the district court on remand again
sentenced Kitzelman to 188 months. And as it had done in the original sentence
hearing, the district court based its sentence in part on its finding that Kitzelman’s
prior felony convictions included one “violent felony” and two “serious drug
offense[s]” within the meaning of the Armed Career Criminal Act, 18 U.S.C. §
922(e)(1). Under the ACCA, any person having “three previous convictions . . .
for a violent felony or . . . serious drug offense” who violates § 922(g) is subject to
a mandatory minimum sentence of fifteen years. 18 U.S.C. § 922(e)(1).
Here, on appeal of this second 188-month sentence, Kitzelman simply
repeats a contention he made in his previous appeal with respect to his first 188-
month sentence. For a second time, Kitzelman complains that the district court
violated his rights under the Sixth Amendment when it (and not a jury) found that
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his prior felony convictions counted under the ACCA as predicate convictions for
the fifteen-year mandatory minimum sentence. This time, he cites not only Booker
and its forbears, but also the Supreme Court’s decision in Shepard v. United States,
544 U.S. 13, 125 S. Ct. 1254 (2005), which was decided during the pendency of
his first appeal and which “limit[ed] the scope of judicial factfinding on the
disputed . . . character of a prior [conviction]” for purposes of increasing a
defendant’s potential sentence under statutes like the ACCA. Id. at 25, 125 S. Ct.
at 1262.
Under the decisions of the Supreme Court and of this Court, we doubt that
Kitzelman can succeed on the merits of this contention. See United States v.
Greer, 440 F.3d 1267, 1275 (11th Cir. 2006) (noting that “Shepard does not bar
judges from finding whether prior convictions qualify for ACCA purposes; it
[merely] restricts the sources or evidence that a judge (instead of a jury) can
consider in making that finding”). A more fundamental problem for Kitzelman is
that we cannot even consider the merits issue, because he made a substantially
identical argument on his first trip to this Court, and we rejected it as “without
merit.” See Kitzelman I, 140 Fed. Appx. at 931. Under our “law of the case”
doctrine, both the district court and this Court are bound by that legal conclusion.
See United States v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982) (“Under the law
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of the case doctrine, both the district court and the court of appeals generally are
bound by findings of fact and conclusions of law made by the court of appeals in a
prior appeal of the same case.”)
There are exceptions to the “law of the case” doctrine. They account for
new evidence produced at a subsequent trial, allow for changes in controlling
authority on a particular issue after the initial appellate disposition of the case, or
seek to prevent “manifest injustice” if the prior appellate decision was “clearly
erroneous.” See id. But none of the exceptions apply here. Kitzelman does not
squarely address any of them, instead stating that he is making the argument “in
the event that the Supreme Court does in fact reconsider its decision” in cases such
as Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998)
(where the Supreme Court held that the factual issue of whether a defendant has
previously been convicted of an “aggravated felony” for sentence enhancement
purposes is not to be treated as an element of the offense for constitutional
purposes).
AFFIRMED.
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