                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          DECEMBER 27, 2006
                             No. 06-12976                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 04-00051-CR-T-17-EAJ

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

RONALD DUVALL,

                                                   Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________


                           (December 27, 2006)


Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Ronald Duvall appeals his 37-month sentence for theft of government

property, in violation of 18 U.S.C. § 641. We affirm his sentence.

                               I. BACKGROUND

      In October 1974, Duvall began receiving disability compensation from the

Department of Veterans Affairs (VA). Duvall’s superseding indictment provided,

“[b]eginning in or about November 1993, and continuing through in or about May

2001,” Duvall embezzled, stole, and converted to his use “in excess of $1,000 of

monies” belonging to the VA. A jury found Duvall guilty and determined the

offense involved more than $200,000. At sentencing, the district court received

evidence the total loss suffered by the government for the entire period of Duvall’s

disability amounted to $641,283.60. The district court pronounced a sentence of

37 months’ imprisonment based on a loss of $641,283.60, or, in the alternative, 30

months’ imprisonment, based on the loss found by the jury, if Blakely v.

Washington, 124 S. Ct. 2531 (2004), applied. Duvall appealed, and we remanded

for resentencing, in part, because Duvall’s 37-month sentence, which was based on

judge-found facts under a mandatory Guidelines system, violated United States v.

Booker, 125 S. Ct. 738. We stated, “[w]e note the district court correctly

calculated Duvall’s Guidelines range of 30 to 37 months’ imprisonment,” and

provided the district court, on remand, was “required to sentence Duvall according



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to Booker, considering the Guidelines advisory range of 30 to 37 months’

imprisonment . . . .” At resentencing, the district court, after considering the

Guidelines advisory range of 30 to 37 months’ imprisonment, sentenced Duvall to

a 37-month sentence.

       Duvall appeals his Guidelines range of 30 to 37 months’ imprisonment. He

acknowledges we will likely reaffirm our prior holding from his previous appeal

that his Guidelines range was 30 to 37 months’ imprisonment, but argues the trial

court erred in violation of Blakely by finding he should be held accountable for

losses in excess of $400,000, based on benefits paid outside of the period in the

indictment, and when the jury only found him responsible for losses in excess of

$200,000. He contends the Government’s allegation at sentencing, that he was

paid $641,283.60 over the entire period that he was receiving disability benefits,

includes periods as far back as 1974. He contends the attempt to expand his

culpability back almost 20 years from his offense of conviction, “ignores the

significance of the charging document in the process itself, and . . . renders that

document meaningless.”

                                  II. DISCUSSION

      “Under the law of the case doctrine, both district courts and appellate courts

are generally bound by a prior appellate decision in the same case.” Alphamed,



                                           3
Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285-86 (11th Cir. 2004). The doctrine

operates to preclude courts from revisiting issues that were decided explicitly or by

necessary implication in a prior appeal. Luckey v. Miller, 929 F.2d 618, 621 (11th

Cir. 1991). “The mandate rule is simply an application of the law of the case

doctrine to a specific set of facts.” Litman v. Mass. Mut. Life Ins. Co., 825 F.2d

1506, 1511 (11th Cir. 1987) (en banc). “If the appeals court issues a specific

mandate, the district court must obey: the mandate is not subject to interpretation.”

United States v. Mesa, 247 F.3d 1165, 1170 (11th Cir. 2001).

      The law-of-the-case doctrine and the mandate rule preclude any argument

that Duvall’s 30 to 37-month Guidelines range was miscalculated. See Alphamed,

367 F.3d at 1285-86; Mesa, 247 F.3d at 1170. Further, the district court did not err

because it applied the Guidelines in an advisory fashion, and was entitled to make

findings of fact not alleged in the indictment when fashioning Duvall’s sentence.

See United States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006) (holding extra-

verdict enhancements, under an advisory Guidelines scheme, may be based on

facts not charged in the indictment so long as the sentence does not exceed the

statutory maximum for the defendant’s offense of conviction). Duvall’s 37-month

sentence did not exceed his ten-year statutory maximum sentence. See 18 U.S.C.

§ 641. To the extent Duvall argues the district court could not make findings of



                                          4
fact as to an amount of loss contrary to the amount specifically found by the jury,

we have held a court may consider relevant acquitted conduct if proven by a

preponderance of the evidence. United States v. Faust, 456 F.3d 1342, 1348 (11th

Cir.), cert. denied, 127 S. Ct. 615 (2006). Thus, if a court can consider acquitted

conduct in sentencing, it follows the district court can also consider loss amounts

exceeding the specific findings of the jury.

      Accordingly, we affirm Duvall’s sentence.

      AFFIRMED.




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