United States v. Michael Robert Lee , 266 F. App'x 892 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 26, 2008
No. 07-11877 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-06212-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ROBERT LEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 26, 2008)
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
Michael Robert Lee appeals pro se the denial of his motion to reduce his
sentence, which he filed pursuant to 18 U.S.C. § 3582(c)(2). He contends that the
district court erred by denying his motion for modification of sentence because the
November 1, 2000, amendments to the Sentencing Guidelines, specifically
Amendments 599 and 600, retroactively apply to bar sentence enhancements he
received.
We review a district court’s decision not to grant a sentence reduction under
18 U.S.C. § 3582(c)(2) only for an abuse of discretion. United States v. Moreno,
421 F.3d 1217, 1219 (11th Cir. 2005). The law-of-the-case doctrine provides that
“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). Under the
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.” Id. We may deviate from the law-
of-the-case doctrine when: (1) a subsequent trial involves substantially different
evidence, (2) controlling law has been changed by an intervening decision that is
binding precedent, or (3) the decision was clearly erroneous and a manifest
injustice would result from not changing it. Id. at 1561.
2
Lee’s § 3582(c)(2) motion was based on the same arguments he
unsuccessfully made in an earlier § 3582(c)(2) motion in this same underlying
criminal case. The district court denied Lee’s first § 3582(c)(2) motion on
December 21, 2004, and Lee never filed an appeal from that denial. He has not
presented any new evidence, identified a new legal decision, or persuaded us that
the district court’s decision on his earlier motion was clearly erroneous and
resulted in a manifest miscarriage of justice. See Escobar-Urrego, 110 F.3d at
1560.
Alternatively, Lee’s motion lacked merit anyway. Amendment 600, as the
district court noted, is not retroactively applicable. United States v. Armstrong, 347
F.3d 905, 907–08 (11th Cir. 2003); U.S.S.G. § 1B1.10(a) & (c). Lee argues that
Amendment 599, which is retroactive, makes a difference because it would
preclude him from receiving the four-level increase in offense level for using or
possessing a firearm in connection with his felony offense under U.S.S.G. §
2K2.1(b)(5). However, that enhancement was not applied to calculate Lee’s
offense level anyway, because he was sentenced as a career offender pursuant to
U.S.S.G. § 4B1.1, the application of which Lee does not challenge. In this
situation, because § 2K2.1(b)(5) had no effect Amendment 599 is not implicated.
See Armstrong, 347 F.3d at 908.
3
Lee’s argument that he should win because the government and probation
officer failed to comply with the district court’s briefing deadline is frivolous.
AFFIRMED.
4