United States v. Medina , 219 F. App'x 20 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2142
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR MEDINA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Kevin J. Fitzgerald, Assistant Federal Defender, on brief
for appellant.
Donald C. Lockhart and Stephanie S. Browne, Assistant U.S.
Attorneys, and Robert Clark Corrente, United States Attorney, on
brief for appellee.
March 28, 2007
Per Curiam. This is an appeal from resentencing
after remand from this court on defendant's prior appeal. See
United States v. Medina, 427 F.3d 88 (1st Cir. 2005) ("Medina
I") (affirming defendant's conviction but remanding for
resentencing in light of United States v. Booker, 543 U.S. 220(2005)). On remand, defendant was sentenced to 15 years'
imprisonment, the mandatory minimum for the offenses of
conviction.
In this appeal from that sentence, defendant focuses
solely on the mandatory minimum contained in 18 U.S.C. § 841,
which he continues to argue applies only to offenses involving
crack cocaine, despite this court's ruling to the contrary in
his first appeal.1 See Medina I, 427 F.3d at 92 (holding that
21 U.S.C. § 841 regulates exactly what it's terms suggest: the
possession of any form of 'cocaine base'"). Under the
doctrines of law of the case and stare decisis, we decline to
reconsider this court's prior rulings on that issue.
1
Although in Medina I, this court was interpreting the phrase
"cocaine base" in 21 U.S.C. § 841 to determine whether the district
court accurately defined the substantive offense, while here the
same phrase is being interpreted to determine whether the mandatory
minimum provision of that same statute applies, the difference is
immaterial. Indeed, the very case that established the meaning of
that phrase in this circuit did so in the sentencing context.
United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992)
(per curiam) (as amended on rehearing).
-2-
Under the relevant branch of the law of the case
doctrine, "a legal decision made at one stage of a civil or
criminal proceeding . . . remain[s] the law of that case
throughout the litigation, unless and until the decision is
modified or overruled by a higher court. That branch
binds . . . a successor appellate panel in a second appeal in
the same case . . . ." United States v. Moran, 393 F.3d 1, 7
(1st Cir. 2004); see also Ellis v. United States, 313 F.3d 636,
646-47 (1st Cir. 2002) (explaining the "salutary policies"
behind this doctrine).
Although that branch of the doctrine is prudential
and has certain exceptions, the only one even potentially
applicable here--that adhering to the law of the case would
yield "a manifestly unjust result," Ellis, 313 F.3d at 648--is
unavailing. "[A] litigant seeking to fit within [the] confines
[of this exception] must negotiate a steep uphill climb. . . .
[A] finding of manifest injustice requires, at a bare minimum,
'a definite and firm conviction that a prior ruling is
unreasonable or obviously wrong.'" Moran, 393 F.3d at 8(quoting Ellis, 313 F.3d at 648).
That demanding standard is not met here. Far from
being "obviously wrong," the panel's ruling in the first appeal
was itself dictated by the decisions of other panels on this
issue in previous cases, Medina I, 427 F.3d at 92 (citing
-3-
Lopez-Gil, 965 F.3d at 1134, and United States v. Richardson,
225 F.3d 46, 49 (1st Cir. 2000)), which that panel was not free
to revisit, absent supervening authority, which did not and
still does not exist, see United States v. Anderson, 452 F.3d
66, 86 (1st Cir.), cert. denied, 127 S. Ct. 696 (2006).
Apparently acknowledging that point, defendant suggests in his
brief that this appeal be heard en banc. However, he filed no
petition to that effect. See Fed. R. App. P. 35(b). That
procedural consideration aside, under the law of the case
doctrine discussed above, this case would be an unlikely
vehicle for en banc consideration, which could have been but
was not sought before or after the panel's decision in the
first appeal. United States v. Ticchiarelli, 171 F.3d 24, 29
(1st Cir. 1999).
Because we therefore decline to revisit our prior
rulings that the phrase "cocaine base" in 21 U.S.C. § 841applies not only to crack cocaine but to any form of cocaine
base, we do not reach defendant's subsidiary arguments that he
was entitled to but did not receive a jury finding beyond a
reasonable doubt, or even a judicial finding by a preponderance
of the evidence, that the substance involved here was crack
cocaine.
Affirmed. See 1st Cir. Loc. R. 27.0(c).
-4-