United States v. Daniel Stephen , 486 F. App'x 804 ( 2012 )

Case: 11-16074 Date Filed: 08/13/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16074
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-20729-JEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
DANIEL STEPHEN,
lllllllllllllllllllllllllllllllllllllll l Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 13, 2012)
Before TJOFLAT, CARNES, and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 11-16074 Date Filed: 08/13/2012 Page: 2 of 3
Daniel Stephen was convicted of conspiracy to commit mail fraud in
violation of 18 U.S.C. § 1349. The district court calculated a total offense level of
38—which included a 2-level increase under United States Sentencing Guidelines
§ 2B1.1(b)(9)(C) (Nov. 2009) and a 2-level increase under § 3B1.3 because
Stephen abused a position of trust—and a criminal history category of I. His
offense carried a statutory maximum of 240 months imprisonment, see 18 U.S.C. §
1341, so the resulting guidelines range was 235–240 months imprisonment. The
court sentenced Stephen to 240 months in prison.
Stephen appealed his sentence, and in an unpublished decision, we held that
the district court did not clearly err in applying the sophisticated-means
enhancement but that it had clearly erred in applying the abuse-of-trust
enhancement. United States v. Stephen, 440 F. App’x 824, 828–30 (11th Cir.
2011) (unpublished). We vacated Stephen’s sentence and remanded for
resentencing. Id. at 830. At resentencing, the district court again applied the
sophisticated-means enhancement, calculating a new total offense level of 36 and
a new guidelines range of 188–235 months imprisonment. It sentenced Stephen to
188 months in prison. Stephen appeals, contending that the district court erred in
applying of the sophisticated-means enhancement.
This case is controlled by the law of the case doctrine, which provides that
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Case: 11-16074 Date Filed: 08/13/2012 Page: 3 of 3
“the district court and the court of appeals are bound by findings of fact and
conclusions of law made by the court of appeals in a prior appeal of the same
case.” United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996). There are
three exceptions to the law of the case doctrine: (1) the evidence in the later
sentence hearing is substantially different; (2) there is a change in controlling law;
or (3) the earlier decision was “clearly erroneous and would work manifest
injustice.” Id. at 469. Stephen argues that the first exception applies here, but he
presented no new evidence relating to the sophisticated-means enhancement when
he was resentenced. The first exception to the law of the case doctrine, therefore,
does not apply, which forecloses our review of the district court’s application of
that enhancement.
AFFIRMED.
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