                    Case: 11-12212         Date Filed: 08/03/2012   Page: 1 of 6



                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-12212
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:99-tp-00152-FAM-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                  versus

PEDRO JESUS RIVERA,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.
                                      ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                        (August 3, 2012)

Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:


         In his underlying criminal case, Appellant Pedro Jesus Rivera (“Rivera”)

was convicted on August 10, 1987, of one count of conspiracy to possess stolen
              Case: 11-12212    Date Filed: 08/03/2012   Page: 2 of 6

goods from a foreign shipment, in violation of 18 U.S.C. § 371, and three counts

of possession of stolen goods from a foreign shipment, in violation of 18 U.S.C. §

659. Rivera received concurrent sentences of four years’ imprisonment for each of

the first two counts. His sentence was suspended as to Counts 3 and 4, each of

which carried a maximum sentence of ten years’ imprisonment. After violating his

probation for a second time, the Southern District of Florida revoked probation

and sentenced Rivera on April 26, 2011, to seven years’ imprisonment. On

appeal, Rivera contends that the district court violated 18 U.S.C. § 3653 by

imposing a prison sentence that exceeds the prison sentence imposed for the

underlying offense. Rivera also argues that our decision in his appeal of an earlier

sentence imposed following his first probation revocation binds us to conclude

that the district court violated § 3653. See United States v. Rivera, 324 Fed. App’x

811, 815 (11th Cir. 2009) (per curiam). After reviewing the record and reading

the parties’ briefs, we conclude that Rivera’s contentions are without merit, and

thus, we affirm his sentence.

                                         I.

      We ordinarily review pre-Guidelines probation revocation decisions for

abuse of discretion. United States v. Parrish, 427 F.3d 1345, 1347 (11th Cir.

2005) (per curiam). However, at sentencing, Rivera did not raise his objections to

                                         2
               Case: 11-12212     Date Filed: 08/03/2012     Page: 3 of 6

the length of his sentence. If a defendant does not raise timely objections in the

district court, we review for plain error. Id. We exercise plain error review

sparingly and only “in those circumstances in which a miscarriage of justice would

otherwise result.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779

(1993)). For this reason, the plain error test is difficult to meet. Rodriguez, 398

F.3d at 1298. To prevail under the plain error standard of review, a defendant

must prove that there is “(1) error, (2) that is plain, and (3) that affects substantial

rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)

(internal quotation marks omitted) (quoting Johnson v. United States, 520 U.S.

461, 466–467, 117 S. Ct. 1544, 1549 (1997). If a defendant proves all of these

elements, we “may then exercise [our] discretion to notice a forfeited error, but

only if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Cotton, 535 U.S. at 631, 122 S. Ct. at 1785 (quoting

Johnson, 520 U.S. at 467, 117 S. Ct. at 1549).

      Rivera is unable to show error — plain or otherwise — because pre-

Guidelines law permits his sentence of seven years’ imprisonment. In 1987, 18

U.S.C. § 659 provided a term of imprisonment of up to 10 years for each count of

knowing possession of stolen goods valued at more than $100 from a foreign

                                            3
              Case: 11-12212     Date Filed: 08/03/2012    Page: 4 of 6

shipment. Under § 3653, upon finding that the defendant violated probation, the

district court may “revoke the probation and require him to serve the sentence

imposed, or any lesser sentence, and, if imposition of sentence was suspended,

may impose any sentence which might originally have been imposed.” 18 U.S.C.

§ 3653 (repealed Nov. 1, 1987). While “[§] 3653 was repealed by the Sentencing

Reform Act, Pub. L. 98-473, § 212(a)(2), 98 Stat. 1987 (1984) . . . the repeal

applies only to offenses committed after November 1, 1987.” United States v.

Holland, 874 F.2d 1470, 1472 n.1 (11th Cir. 1989). In Parrish, we affirmed the

district court’s imposition of eight years’ imprisonment following probation

revocation where the original sentence for two counts of mail fraud was

suspended, and each count carried a statutory maximum of five years’

imprisonment. Parrish, 427 F.3d at 1349. We held that under § 3653, the district

court may impose any sentence that might originally have been imposed and noted

that “the district court . . . could have imposed up to five years’ imprisonment as to

each count, to run consecutively, for a total 10 years’ imprisonment.” Id.

Moreover, under the pre-Guidelines framework, if a court imposes a sentence

within the statutory limits, the severity of the sentence is insulated from appellate

review. United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984). Rivera’s

underlying conviction from August 1987 precedes the effective repeal of § 3653,

                                          4
              Case: 11-12212     Date Filed: 08/03/2012    Page: 5 of 6

and thus, we conclude that the district court did not plainly err in following pre-

Guidelines law when sentencing Rivera.

      Additionally, Rivera argues that our decision in his prior appeal following

his first revocation of probation requires that the instant sentence not exceed four

years. See Rivera, 324 Fed. App’x at 815 (concluding that “the district court did

not violate the terms of . . . § 3653, because the eighteen-month sentence it

imposed is less than the original forty-eight month sentence” in Rivera’s

underlying criminal case). “Unpublished opinions are not considered binding

precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2. We

“may cite to [unpublished opinions] . . . to ascertain the law of the case.” Id.

I.O.P. 7. Under the law of the case doctrine, “the resolution of an issue decided at

one stage of a case is binding at later stages of the same case.” Schiavo ex rel.

Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005) (per curiam). The law

of the case doctrine “operates to preclude courts from revisiting issues that were

decided explicitly or by necessary implication in a prior appeal.” Id. The doctrine

has “developed to maintain consistency and avoid reconsideration of matters once

decided during the course of a single continuing lawsuit.” United States v.

Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997).

      In the instant appeal, the law of the case doctrine and our prior decision has

                                          5
              Case: 11-12212     Date Filed: 08/03/2012   Page: 6 of 6

no bearing on the district court’s imposition of this seven-year sentence. Our prior

comment in Rivera on the reasonableness of that 18-month sentence does not

require us to find this 84-month sentence unreasonable. In fact, as discussed

supra, the district court had the authority under § 3653 to sentence Rivera to a

longer term. See 18 U.S.C. § 3653. Consequently, we reject Rivera’s contention

that our holding in his prior appeal constrains us now.

                                         II.

      Rivera has not demonstrated that the district court committed plain error in

imposing a seven-year prison sentence after revoking his probation where the

seven-year sentence is less than the statutory maximum prison sentence for the

two counts that were suspended in his original case. Additionally, Rivera has not

shown that the law of the case compels us to conclude that the district court

violated § 3653. Accordingly, we affirm Rivera’s sentence.

      AFFIRMED.




                                         6
