             Case: 14-12832   Date Filed: 03/19/2015   Page: 1 of 9


                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-12832
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 3:11-cr-00281-MMH-JBT-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

BRYAN ADRAIN COPELAND,

                                                           Defendant-Appellant.

                         ________________________

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

                               (March 19, 2015)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      This is Defendant Bryan Copeland’s second appeal arising from this

criminal case, in which Copeland pled guilty to wire fraud, aggravated identity
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theft, and making false claims against the United States. Initially, Copeland was

sentenced to a total term of 264 months of imprisonment. On appeal from that

sentence, we determined that the government had breached Copeland’s plea

agreement by not recommending a two-level reduction for acceptance of

responsibility. See United States v. Copeland, 520 F. App’x 822, 826-28 (11th Cir.

2013). Concluding that Copeland was entitled to specific performance of the plea

agreement, we vacated the sentence and remanded to the district court for

resentencing before a different judge. Id. at 828. On remand, the district court

applied the reduction for acceptance of responsibility and imposed a total sentence

of 204 months of imprisonment, below Copeland’s advisory guideline range.

      At his resentencing, Copeland objected to the district court’s application of

an enhancement for obstruction of justice under United States Sentencing

Guidelines Manual (“U.S.S.G.”) § 3C1.1. In addressing the objection, the court

concluded that the law-of-the-case doctrine barred Copeland’s challenge to the

application of the enhancement because Copeland had failed to raise this issue in

his first appeal. In the alternative, the court found that the enhancement was

appropriate because the facts showed that Copeland had attempted to intimidate a

codefendant who was cooperating in the investigation of the fraudulent tax-refund

scheme in which Copeland was involved. In this appeal, Copeland argues that the

district court erred in both respects. After careful review, we affirm.


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      We review the district court’s application of the law-of-the-case doctrine de

novo. Alphamed, Inc. v. B. Braud Med., Inc., 367 F.3d 1280, 1285 (11th Cir.

2004). We likewise review de novo the district court’s compliance with our

mandate from a previous appeal. United States v. Amedeo, 487 F.3d 823, 829

(11th Cir. 2007). When a district court imposes an enhancement for obstruction of

justice under U.S.S.G. § 3C1.1, we review the court’s factual findings for clear

error and its application of the Sentencing Guidelines to those facts de novo.

United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006).

      The law-of-the-case doctrine “preclude[s] courts from revisiting issues that

were decided explicitly or by necessary implication in a prior appeal.” Schiavo ex

rel. Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005). Self-imposed by

the courts, law of the case creates efficiency, finality, and obedience within the

judicial system. Amedeo, 487 F.3d at 829. The law-of-the-case doctrine applies to

findings made under the Sentencing Guidelines. Id. at 830.

      Notably, “[u]nder the law of the case 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.” United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997)

(quoting Williamsburg Wax Museum v. Historic Figures, 810 F.2d 243, 250 (D.C.


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Cir. 1987)); see also United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-83 (11th

Cir. 1989) (concluding that a defendant had waived his right to raise an argument

in a second appeal after resentencing that was not raised in the first appeal).

Therefore, in Escobar-Urrego, this Court held that because the defendant “had the

opportunity to appeal the district court’s decision that he imported 2,036 grams of

usable cocaine but did not, that decision is the law of the case,” precluding the

defendant from “relitigating the question of how much usable cocaine he

imported” unless an exception to law of the case applied. 110 F.3d at 1560-61.

      In his first appeal, Copeland did not argue that the evidence failed to support

the district court’s application of the obstruction-of-justice enhancement under

§ 3C1.1.1 See Copeland, 520 F. App’x at 827-28. This issue could have been

raised in the first appeal. The first district-court judge applied the enhancement

during Copeland’s initial sentencing, and, on resentencing, the new judge applied

the enhancement primarily based on testimony from a cooperating codefendant

presented at Copeland’s detention hearing early in the case.

      Because Copeland did not challenge the district court’s initial decision to

apply the enhancement when the opportunity existed in his first appeal, that

decision is law of the case, and Copeland is deemed to have waived his right to


      1
           Although Copeland argued that the government breached the plea agreement by
advocating for the obstruction-of-justice enhancement, he did not directly challenge the
application of that enhancement, as he does in this appeal.
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challenge the enhancement on resentencing and in this appeal. See Escobar-

Urrego, 110 F.3d at 1560; Fiallo-Jacome, 874 F.2d at 1481-83.            Nor does

Copeland’s current appeal satisfy any of the exceptions to the law-of-the-case

doctrine, because it does not address new evidence or an intervening change in the

law, nor does it raise the issue of manifest injustice resulting from our prior

decision. See Amedeo, 487 F.3d at 830.

      Copeland contends that this Court’s remand for resentencing before a

different district-court judge wiped the slate clean and entitled the new judge “to

rule upon guideline objections anew.” He cites to our opinion in United States v.

Martinez, 606 F.3d 1303 (11th Cir. 2010), where we explained that “we have often

held that a general vacatur of a sentence by default allows for resentencing de

novo.” Id. at 1304. In such a case of general vacatur, “the sentence—including

any enhancements—has been wholly nullified and the slate wiped clean,”

permitting the district court to fully revisit the sentence upon resentencing. Id.

(quotation marks omitted).

      But the circuit courts have “broad discretion to fashion an appropriate

mandate on remand after the vacatur of a sentence,” pursuant to 28 U.S.C. § 2106,

so “the reviewing court remains free to modify or limit the issues for review on

remand as it may deem appropriate.” Id. And a district court abuses its discretion

if it exceeds the scope of this Court’s mandate. United States v. Tamayo, 80 F.3d


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1514, 1520 (11th Cir. 1996). We have explained that “[t]he mandate rule is simply

an application of the law of the case doctrine to a specific set of facts.” Id.

(quotation marks omitted).

      Whether the district court was permitted to consider Copeland’s guideline

objection anew on resentencing therefore depends on whether this Court’s vacatur

of his sentence was general or more limited. In resolving Copeland’s first appeal,

we held that the government breached the plea agreement, concluded that

Copeland was entitled to specific performance of that agreement, and “vacate[d]

Copeland’s sentence and remand[ed] for resentencing before a different judge,

consistent with this opinion.” See Copeland, 520 F. App’x at 826-28. Thus, it

appears as if this Court’s mandate was limited to consideration of Copeland’s

acceptance of responsibility, and did not constitute a general vacatur of his

sentence permitting resentencing de novo. See Martinez, 606 F.3d at 1304-05.

Nothing so explicit was stated in the opinion, however, leading the district court to

helpfully make alternative determinations.

      Nevertheless, we do not need to resolve whether the remand was general or

limited, because even assuming that the district court was permitted to resentence

Copeland de novo, Copeland has not shown that the district court erred in applying

the obstruction-of-justice enhancement under § 3C1.1.




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      Section 3C1.1 of the Guidelines provides, in relevant part, that an upward

adjustment of two levels is appropriate if “the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant offense of

conviction,” and such conduct related to “the defendant’s offense of conviction and

any relevant conduct. U.S.S.G. § 3C1.1. Among the examples of covered conduct

described in the commentary to § 3C1.1, the obstruction-of-justice enhancement

applies to “threatening, intimidating, or otherwise unlawfully influencing a co-

defendant, witness, or juror, directly or indirectly, or attempting to do so.” Id.

§ 3C1.1 cmt. n.4(A).

      Here, one of Copeland’s codefendants, Prientice Hooks, testified under oath

at Copeland’s detention hearing that he had been cooperating with the IRS and the

Secret Service in their investigation of Copeland’s tax-fraud scheme.        Hooks

testified that he had received prior threats from Copeland’s associates, warning him

that they would come after him if he divulged anything about Copeland to the

authorities. Then, in September 2011, Hooks was walking alongside a road when

Copeland hit Hooks with his vehicle and then drove off.          The district court

concluded that, based on Hooks’s testimony, the government had shown by “a

preponderance of the evidence that the incident occurred largely as Mr. Hooks




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described it . . . , specifically, that Mr. Copeland assaulted his former co-

conspirator, whom he knew or believed was cooperating against him.”

      Copeland contends that Hooks’s testimony was undermined by other

evidence in the record and was inconsistent with the police incident report

prepared immediately after the incident. But because we review the district court’s

factual findings only for clear error, we must defer to the court’s findings so long

as they are “plausible.” United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir.

2003).   And “[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Id. (quotation

marks omitted).    The district court’s resolution of the factual inconsistencies

identified by Copeland was plausible and, therefore, not clearly erroneous. See id.

      Based on the court’s plausible factual findings, it was not erroneous to apply

the obstruction-of-justice enhancement because the facts demonstrate that

Copeland threatened or intimidated Hooks, or attempted to do so, because

Copeland knew or believed that Hooks, a codefendant and potential witness, was

assisting with the investigation of Copeland’s tax fraud. See U.S.S.G. § 3C1.1,

cmt. n.4(A). Accordingly, the district court did not err in applying the two-level

increase for obstruction of justice. See Massey, 443 F.3d at 818.

      In short, by failing to challenge the obstruction-of-justice enhancement in his

first appeal, Copeland is barred by law of the case from challenging the


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enhancement on appeal after resentencing. Alternatively, even if the district court

was permitted to address Copeland’s objection de novo, the court did not err in

applying the § 3C1.1 enhancement.

      AFFIRMED.




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