United States v. Jose Barajas-Perez , 172 F. App'x 690 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1634
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Jose Barajas-Perez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 21, 2006
Filed: March 27, 2006
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Before WOLLMAN, BYE, and RILEY, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal following remand for resentencing, Jose Barajas-
Perez (Jose) challenges his sentence of 135 months imprisonment and 5 years
supervised release. His counsel has moved to withdraw and filed a brief under Anders
v. California, 386 U.S. 738 (1967), arguing that the district court1 at resentencing
violated the law of the case by reconsidering alleged false testimony Jose had given
at his nephew’s criminal trial in determining where to sentence Jose within the
advisory Sentencing Guidelines range. We affirm.
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The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
Under the law-of-the-case doctrine, once a court decides upon a rule of law, that
decision is usually binding at subsequent stages of the same case. See United States
v. Hively, 437 F.3d 752, 766 (8th Cir. 2006). We conclude that the district court did
not violate the law of the case when it sentenced Jose at the top of the Guidelines
range for having lied at his nephew’s trial, because such a finding is not necessarily
the same as the finding required to enhance for obstruction of justice. See U.S.S.G.
§ 3C1.1 comment. (n.1) (obstruction-of-justice adjustment applies if defendant’s
obstructive conduct occurred during course of investigation, prosecution, or
sentencing of defendant’s instant offense of conviction, and related to defendant’s
offense and any relevant conduct or to otherwise closely related case), (n.4) (non-
exhaustive list of types of conduct to which adjustment applies). Moreover, the
finding that Jose lied was based on new evidence, i.e., evidence that could not have
been submitted until after Jose’s first sentencing hearing. See United States v. Palmer,
297 F.3d 760, 766 (8th Cir. 2002) (decision in prior appeal is followed in later
proceedings unless, inter alia, party introduces substantially different evidence), cert.
denied, 538 U.S. 937 (2003).
We have reviewed the resentencing record independently under Penson v. Ohio,
488 U.S. 75, 80 (1988), and we have found no nonfrivolous issues. Accordingly, we
grant counsel’s motion to withdraw, and we affirm.
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