                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                Nos. 05-15690 & 06-12753                  DEC 18, 2007
                                                                       THOMAS K. KAHN
                                                                            CLERK
                         D. C. Docket No. 93-00597-CR-KMM

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

REYNALDO RODRIGUEZ,

                                                                       Defendant-Appellant.




                     Appeals from the United States District Court
                         for the Southern District of Florida


                                   (December 18, 2007)

Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and MARTIN,*
District Judge.

PER CURIAM:


       *
        Honorable Beverly B. Martin, United States District Judge for the Northern District of
Georgia, sitting by designation.
I.     Factual and Procedural Background

       Appellant Reynaldo Rodriguez, a former officer for the City of Miami

Police Department, was convicted of conspiracy to possess cocaine with the intent

to distribute, in violation of 21 U.S.C. § 846, on December 15, 1994, in the

Southern District of Florida. Mr. Rodriguez appealed to this Court, which

remanded the case on October 30, 2001.

       The original appeal addressed an evidentiary ruling made by the district

court at trial, denying Mr. Rodriguez the use of two affidavits as impeachment

material.1 Mr. Rodriguez was tried along with a number of co-conspirators,

including Francisco Novaton and Oscar Cuni. Neither Mr. Novaton nor Mr. Cuni

testified at trial, but the government introduced numerous hearsay statements made

by them and recorded by investigators’ wiretaps. The wiretap conversations were

introduced under Federal Rule of Evidence 801(d)(2)(E), which permits the

admission of out-of-court co-conspirator statements made in furtherance of the

conspiracy. Federal Rule of Evidence 806 allows a party to impeach statements

admitted under Rule 801(d)(2)(E) by means of any evidence that would be

appropriate impeachment material were the declarant to testify from the witness


       1
        Mr. Rodriguez also appealed the district court’s denial of his motion to sever his trial.
This Court affirmed the district court’s ruling on that issue. United States v. Novaton, 271 F.3d
968, 990-91 (11th Cir. 2001).

                                                2
stand. Mr. Rodriguez proffered two affidavits sworn by Mr. Novaton and Mr.

Cuni (“the affidavits”) that denied Mr. Rodriguez’s participation in the conspiracy.

He requested that he be allowed to use the affidavits to impeach the hearsay

statements of Mr. Novaton and Mr. Cuni introduced at trial. The district court

denied his request.

      Mr. Rodriguez challenged the exclusion of the affidavits in his first appeal.

To assist its decision, this Court requested that Mr. Rodriguez submit specific

citations to the trial record, pointing out statements that would have been

impeached by the affidavits. It was then discovered that the recorded

conversations admitted as trial exhibits, along with accompanying transcripts and

translations, had been lost. This Court remanded the case with instructions for the

district court to determine whether any of the missing trial exhibits were relevant

to Mr. Rodriguez’s appeal. If there were relevant missing exhibits, the district

court was to attempt to reconstruct them as provided in Federal Rule of Appellate

Procedure 10(e). United States v. Novaton, 271 F.3d 968, 991-93 (11th Cir.

2001).

      The remand also gave the district court the opportunity to reconsider its

Rule 806 determination in light of this Court’s intervening decision in United

States v. Grant, 256 F.3d 1146 (11th Cir. 2001). The panel expressed no view on

                                          3
whether Grant was controlling authority. It was left to the district court to assess

the effect of Grant, if any, and grant Mr. Rodriguez a new trial as appropriate.

Novaton, 271 F.3d at 993-94.

      On September 9, 2005, the district court, having concluded that the record

was adequately reconstructed to reconsider the Rule 806 matter, affirmed the

exclusion of the affidavits (Dist. Ct. Order of Sept. 9, 2005, at 2-3). The district

court found that “the affidavits were in fact intended to be used as substantive

evidence, and not for impeachment” (id. at 4). They were therefore inadmissible

hearsay and not proper impeachment material under Rule 806. The court noted

that it would have been within its discretion to exclude the affidavits under

Federal Rule of Evidence 403 as well, as “highly prejudicial” to the government

and likely to lead to “jury confusion as to the proper use of such evidence as

impeachment as opposed to substantive evidence” (id.). To be thorough, the court

analyzed whether a new trial would be warranted in the event that the affidavits

were erroneously excluded. It determined that the affidavits had little

impeachment value, and that there was ample other evidence presented at trial to

support the conviction (id. at 5-6). On April 26, 2006, the district court also

denied Mr. Rodriguez’s Motion for New Sentencing Hearing.




                                           4
      Mr. Rodriguez appeals from the district court’s rulings on remand. He

alleges a number of errors with regard to the exclusion of the affidavits, namely,

that the record was not adequately reconstructed, that exclusion of the affidavits

was error, and that he is entitled to a new trial. He further contends that his due

process right to a timely appeal has been violated by the “lengthy, protracted and

attenuated direct appeal process” in his case (Appellant’s Br. 49). Finally, he

argues that his sentence should be reconsidered in light of United States v.

Booker, 543 U.S. 220 (2005), and that it was error for the district court to deny

him a new sentencing hearing.

II.   Analysis

      A.     Reconstruction of the Record

      Reconstruction of the missing trial exhibits was undertaken by the United

States Attorney’s Office, which located the audiotapes that were admitted at trial

and re-translated and re-transcribed them, using official court translators and

reporters (Appellee’s Br. 26). Mr. Rodriguez contends that there are “numerous

material and significant errors, omissions and discrepancies” in the reconstructed

transcripts, which he identified by comparing the reconstructed transcripts with the

excerpts of the original transcripts that were available from the trial transcript

(Def. Reynaldo Rodriguez’s Mem. Regarding Errors & Omissions in

                                           5
Government’s “Reconstructed” Trs. 2). The district court held a series of five

evidentiary hearings to evaluate the reconstruction effort and concluded, over Mr.

Rodriguez’s objection, that the government had adequately reconstructed the

missing evidence in accordance with the remand instructions (Dist. Ct. Order of

Sept. 9, 2005, at 2).

      Federal Rule of Appellate Procedure 10(e) provides that when

reconstructing the trial record, “[i]f any difference arises about whether the record

truly discloses what occurred in the district court, the difference must be submitted

to and settled by that court . . . .” Fed. R. App. P. 10(e)(1). “[S]ubstantial and

significant omissions from the verbatim transcript do not mandate a reversal if . . .

the record can be adequately reconstructed to accord effective appellate review.”

United States v. Cashwell, 950 F.2d 699, 704 (11th Cir. 1992). Nor does the

reconstructed record have to be identical to the original transcripts and exhibits

used in the trial. Novaton, 271 F.3d at 993.

      A district court’s decision in reconstructing the record should be upheld

“absent a showing of intentional falsification or plain unreasonableness.” United

States v. Mori, 444 F.2d 240, 246 (5th Cir. 1971); see also United States v.

Zichettello, 208 F.3d 72, 93 (2d Cir. 2000); United States v. Keskey, 863 F.2d

474, 478 (7th Cir. 1988). There is certainly no evidence that the district court’s

                                           6
ruling was intentionally false. Neither is it plainly unreasonable. The court held

numerous evidentiary hearings on the matter and gave Mr. Rodriguez ample

opportunity to present his arguments, all of which the court considered. The

district court did not err in ruling that the record reconstruction was sufficient to

afford Mr. Rodriguez effective review on the evidentiary question.

      B.     Exclusion of the Affidavits

      Evidentiary rulings are reviewed for abuse of discretion, and will stand

absent a “reasonable likelihood that [an error] affected the defendant’s substantial

rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). An

error is harmless “if the error ‘had no substantial influence on the outcome and

sufficient evidence uninfected by error supports the verdict.’” United States v.

Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (quoting United States v.

Fortenberry, 971 F.2d 717, 722 (11th Cir. 1992)).

      The statements admitted at Mr. Rodriguez’s trial were numerous taped

telephone conversations, involving what the government asserted were coded

references to drug transactions that established the existence of the conspiracy and

Mr. Rodriguez’s participation in it. A statement offered for impeachment

purposes must be inconsistent with the statement already in evidence. “[T]he

point of admitting inconsistent statements to impeach is not to show that they are

                                           7
true, but to aid the jury in deciding whether the witness is credible.” Grant, 256

F.3d at 1156 (citing United States v. Graham, 858 F.2d 986, 990 n.5 (5th Cir.

1988)).

      Mr. Novaton’s affidavit states generally that “Reynaldo Rodriguez did not

conspire with me, or to my knowledge with anyone else, to possess with intent to

distribute cocaine at any time in 1993,” and that Mr. Rodriguez “did not provide

protection, security or counter-surveillance for me, or to my knowledge for anyone

else, at any time during 1993” (Aff. of Francisco Novaton ¶ 3). More specifically,

“on October 12, 1993, [Mr.] Rodriguez did not provide security at my residence

. . . while an alleged sale of cocaine took place” (id.). “[O]n December 5, 1993,

[Mr.] Rodriguez did not discuss with me and Oscar Cuni an alleged narcotics debt

owed by Novaton to Cuni” (id.). The affidavit denies Mr. Rodriguez’s

participation in other acts alleged in the indictment, and states that Mr. Rodriguez

only came to the Novaton house “to eat, use the bathroom facilities, engage in

Santeria worship, and for other personal reasons” (id.). Mr. Cuni’s affidavit

reiterates that Mr. Rodriguez did not conspire to possess cocaine with the intent to

distribute, did not provide security or counter-surveillance to the conspiracy, and

did not discuss a narcotics debt on December 5, 1993 (Aff. of Oscar Cuni ¶ 3).




                                          8
       The district court pointed out that any use of the affidavits by Mr.

Rodriguez was “simply a pretext for their otherwise impermissible use as

substantive evidence” (Dist. Ct. Order of Sept. 9, 2005, at 4). We agree that the

affidavits are “post-indictment, conclusory, self-serving statements made in

anticipation of litigation,” when the affiants had “significant incentive to make

false exculpatory statements” (id.).2 The affidavits do not attack the credibility of

either Mr. Novaton or Mr. Cuni as Rule 806 would require. Instead, they attack

the government’s interpretation of the statements as a conspiracy, and attempt to

exonerate Mr. Rodriguez. Such a use does not constitute impeachment.

       Grant is distinguishable from this case. The statements admitted in Grant

under Rule 801(d)(2)(E) were co-conspirator Wilson’s statements to an

undercover agent that he had a partner who was involved in cocaine distribution.

The government produced other evidence at trial suggesting that the partner was

Grant. Later, Wilson swore out an affidavit to the effect that he did not have a

partner and had lied to the agent about having a partner. Grant, 256 F.3d at 1152-

53. This Court ruled that Wilson’s affidavit was admissible as impeachment


       2
         On Mr. Rodriguez’s original appeal, this Court agreed with the district court’s
assessment of the affidavits at trial, and referred to them as “conclusory denials of the charges in
the indictment” that did “not contain the type of specific and exonerative facts which would
establish that the district court abused its discretion in denying the motions.” Novaton, 271 F.3d
at 990 (ruling on Mr. Rodriguez’s motion to sever the trials of the co-conspirators).

                                                 9
material under Rule 806. The co-conspirator statements made by Wilson

“circumstantially link[ed] Grant to the conspiracy. At the very least, [they]

indicated that Wilson had a co-conspirator. . . . Wilson’s statements in the

proffered affidavit, however, indicate that he had no co-conspirator and, further,

that Grant had no involvement in Wilson’s drug transactions.” Id. at 1153-54.

Wilson’s statements to the undercover officer and his statements in the affidavit

directly contradicted one another.

      The co-conspirator statements admitted against Mr. Rodriguez, by contrast,

were coded and were interpreted at trial by government agents. See Novaton, 271

F.3d at 981-82. Mr. Rodriguez’s proffered affidavits contradict only the

interpretation of the statements, not the statements themselves. For example, Mr.

Novaton never called Mr. Rodriguez and expressly asked him to provide security.

The affidavits contradict the government’s assertion of the existence of a

conspiracy, but they are not inconsistent with the statements the government used

to establish the conspiracy. The affidavits are inadmissible hearsay, offered as

substantive evidence, and not impeachment material. See Graham, 858 F.2d at

990 & n.5.

      The district court relied in the alternative on Federal Rule of Evidence 403

to exclude the affidavits. Under the Federal Rules of Evidence, all evidence is

                                         10
subject to the probative-prejudicial balancing test of Rule 403. United States v.

Hewes, 729 F.2d 1302, 1314 (11th Cir. 1984). In practice, district court judges

may issue their rulings on the basis of one Rule and, in the alternative, on the basis

of Rule 403. See, e.g., United States v. Anderson, 872 F.2d 1508, 1514-15 (11th

Cir. 1989); Alimenta (U.S.A.), Inc. v. Stauffer, 598 F. Supp. 934, 941 (N.D. Ga.

1984). Though Rule 403 is an “extraordinary” remedy to be used “sparingly,”

United States v. Betancourt, 734 F.2d 750, 757 (11th Cir. 1984), a district court’s

ruling based on Rule 403 will not be overturned unless it constitutes a clear abuse

of discretion. United States v. Pomerantz, 683 F.2d 352, 353 (11th Cir. 1982).

The district court found that the affidavits were of “dubious” probative value, but

were highly prejudicial to the government and likely would have confused the jury

on the issue of impeachment as opposed to substantive evidence (Dist. Ct. Order

of Sept. 9, 2005, at 4). The court’s analysis of the balance was well within its

discretion. Thus, we find no abuse of discretion by the trial judge in excluding the

proffered affidavits.

      The district court also correctly concluded that Mr. Rodriguez was not

entitled to a new trial. To challenge a jury verdict on the basis of an erroneous

evidentiary ruling by the district court, the challenger must preserve his objection,

demonstrate an abuse of discretion by the district court, and show that the error

                                          11
affected his substantial rights. United States v. Stephens, 365 F.3d 967, 974 (11th

Cir. 2004). An error affects the defendant’s substantial rights if it “probably had a

‘substantial influence’ on the jury’s verdict.” Id. at 976-77 (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946)). Mr. Rodriguez has preserved his

objection to the district court’s exclusion of his affidavits, but he has not

established that the district court abused its discretion. Even if he were able to

make such a showing, the exclusion cannot be said to have substantially

influenced the jury’s verdict because there was sufficient other evidence, unrelated

to the affidavits, to support his conviction (Dist. Ct. Order of Sept. 9, 2005, at 5-

6).

      The trial evidence showed that Officers Rodriguez and Lopez drove slowly

by the Novaton residence several times a day. The Novaton household received

calls from a Miami Police Department telephone located very near Officer Lopez’s

office. On October 23, 1993, federal agents arrested cocaine purchasers leaving

the Novatons’ and seized three kilograms of cocaine. Mrs. Novaton called her

husband, who was with Mr. Rodriguez at the time, to report that the purchaser had

been “caught with three.” Mr. Rodriguez then accompanied Mr. Novaton back to

his home. On November 9, 1993, Mrs. Novaton asked Mr. Rodriguez for

information about another seizure of drugs that had occurred three days earlier.

                                          12
Mr. Rodriguez went to the Novaton residence with the requested information. On

November 17, 1993, Mr. Rodriguez reported a “phantom drug delivery” in order

to identify the undercover police cars used to investigate drug deals. On

November 20, 1993, another co-conspirator abandoned his car, in which he was

transporting drug proceeds, because he feared he was being followed. He called

Mrs. Novaton, who in turn contacted her husband and the two officers. Mr.

Rodriguez helped to recover the car and the drug proceeds, and was treated to free

food, drink, and possibly prostitutes that night at a bar owned by Mr. Cuni. Both

Officers Rodriguez and Lopez were observed escorting various individuals to the

Novaton household over this period of time. Novaton, 271 F.3d at 980-82.

Sufficient evidence unrelated to the affidavits was presented at trial to convict Mr.

Rodriguez.

      Mr. Rodriguez argues that the length of the jury’s deliberations indicates

that it was a close case, and that the affidavits could have swung the balance.

However, there is no way of knowing whether the jury had trouble reaching a

conclusion on the conspiracy charge for which Mr. Rodriguez was convicted, as

opposed to the charges of which he was acquitted (Dist. Ct. Order of Sept. 9, 2005,




                                         13
at 6).3 Therefore, even if we were to assume that the exclusion of the affidavits

was an abuse of the district court’s discretion (which we have held it was not), it

would amount to harmless error and would not merit a new trial. See Stephens,

365 F.3d at 976 n.11.

       C.      Delay on Appeal as a Due Process Violation

       If a state offers convicted criminals a right to appeal, the right is subject to

the requirements of due process. Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir.

1980). “[A]ny substantial retardation of the appellate process, including an

excessive delay in the furnishing of a transcription of testimony necessary for

completion of an appellate record,” can constitute a denial of due process. Id. at

302. To analyze a due process claim, the Rheuark court adopted the four factors

used to assess speedy trial violations: the length of the delay; the reason for the

delay; defendant’s assertion of his right; and prejudice to the defendant. Id. at 303

& n.8; see Barker v. Wingo, 407 U.S. 514, 530 (1972).4


       3
         The jury acquitted Mr. Rodriguez of two counts of possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of knowingly carrying a firearm
during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1).
Novaton, 271 F.3d at 982-83.
       4
         Most of the other circuits use the Barker factors to analyze due process claims of delay
on appeal as well. See United States v. Smith, 94 F.3d 204, 208 (6th Cir. 1996); United States v.
Hawkins, 78 F.3d 348, 350 (8th Cir. 1996); United States v. Mohawk, 20 F.3d 1480, 1485 (9th
Cir. 1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990); Burkett v. Cunningham,
826 F.2d 1208, 1225 (3d Cir. 1987); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.

                                               14
       The first Barker factor, the length of the delay, serves as a “triggering

mechanism.” There must be a “presumptively prejudicial” delay before a court

will consider the other factors. Barker, 407 U.S. at 530. We assume the 12 year

span between Mr. Rodriguez’s conviction and his current appeal amounts to a

presumptively prejudicial delay. However, not every delay, “even an inordinate

one,” violates due process. Rheuark, 628 F.2d at 303. All four factors must be

evaluated.

       The process of discovering that the trial record was incomplete and

reconstructing that record are the main reasons for the delay in this case. Included

in this time period was the time it took for the government to re-translate and re-

transcribe the audiotapes to replace the missing exhibits, a task that began on

October 31, 2002, and was completed on April 20, 2004 (Appellant’s Br. 7-8;

Appellee’s Br. 11-12). The district court held evidentiary hearings on October 29,

2002, August 11, 2003, March 22, 2004, April 23, 2004, and July 15, 2004 (Dist.

Ct. Order of Sept. 9, 2005, at 2). We find that the delay in the government’s

reconstruction of the evidence was reasonable given the amount of information

that needed to be sorted, re-translated, and re-transcribed (see Appellee’s Br. 46).



1984). The First Circuit hinges its inquiry on a showing of prejudice alone. United States v.
DeLeon, 444 F.3d 41, 56-57 (1st Cir. 2006).

                                               15
The numerous status conferences, hearings, and motions and memoranda filed by

Mr. Rodriguez during this time also make clear that the case did not lie idle for

long periods. The length of the delay was reasonable in

light of the number of issues that had to be worked out.

      The third Barker factor requires that the defendant assert his right. Mr.

Rodriguez asserts his right here in his timely appeal of the district court’s most

recent order, and has properly preserved his objections.

      The fourth factor is prejudice, which is assessed “in light of the interests of

those convicted of crimes to an appeal of their convictions unencumbered by

excessive delay.” Rheuark, 628 F.2d at 303 n.8. The interests are: “(1) prevention

of oppressive incarceration pending appeal; (2) minimization of anxiety and

concern of those convicted awaiting the outcome of their appeals; and (3)

limitation of the possibility that a convicted person’s grounds for appeal, and his

or her defenses in case of reversal and retrial, might be impaired.” Id. Mr.

Rodriguez’s incarceration is not oppressive because his appeal has been evaluated

and found to be without merit. See United States v. Tucker, 8 F.3d 673, 676 (9th

Cir. 1993) (“[Appellant’s] incarceration was not oppressive because his appeal is

meritless.”); Muwwakkil v. Hoke, 968 F.2d 284, 285 (2d Cir. 1992) (“[Petitioner]

has produced no evidence that prompt disposition of his appeal would have

                                          16
yielded a different outcome.”); United States v. Johnson, 732 F.2d 379, 382-83

(4th Cir. 1984) (holding that where “the appeal has been heard and found lacking

in merit[,] there is not any sound reason to order defendant’s release” even though

the delay may have violated due process). There is no indication that Mr.

Rodriguez’s anxiety over his appeal is greater than that of any other imprisoned

appellant. See Tucker, 8 F.3d at 676. Finally, the delay has not impaired Mr.

Rodriguez’s appeal, or any defenses on a possible retrial, because there is no merit

to his appeal in the first place. See id.; Muwwakkil, 968 F.2d at 285; Johnson, 732

F.2d at 382-83. Mr. Rodriguez cannot show that he has suffered prejudice due to

the delay, and therefore he is entitled to no relief.

      D.     Re-Sentencing in Light of Booker

      Based on the United States Sentencing Guidelines, the district court

imposed a sentence of 292 months on Mr. Rodriguez. The court attributed at least

50 kilograms of cocaine to Mr. Rodriguez, for a base level of 36, added two points

for possession of a dangerous weapon, and two more for abuse of public trust

(Appellant’s Br. 53-55). On October 30, 2001, this Court remanded Mr.

Rodriguez’s first appeal to the trial court. While the case was still on remand, on

January 12, 2005, the United States Supreme Court decided United States v.

Booker, 543 U.S. 220 (2005), which invalidated the mandatory application of the

                                           17
Sentencing Guidelines. Because the district court judge applied the Sentencing

Guidelines in a mandatory fashion, Mr. Rodriguez argues that he should be

resentenced under the now-controlling Booker regime.

      Booker was decided when Mr. Rodriguez’s case was on a limited remand to

the trial court. In his first appeal, Mr. Rodriguez and his co-defendants objected to

their sentences based on issues decided by the United States Supreme Court in

Apprendi v. New Jersey, 530 U.S. 466 (2000). See Novaton, 271 F.3d at 1016.

This Court considered those arguments, rejected them, and affirmed Mr.

Rodriguez’s sentence. Id. at 1018. Thus, Mr. Rodriguez’s 292 month sentence

stands as the law of the case.

      Appellate courts are still expected to apply “ordinary prudential doctrines.”

Booker, 543 U.S. at 268. The doctrine of law of the case is generally referred to as

an ordinary prudential doctrine. See Patterson v. Haskins, 470 F.3d 645, 660-61

(6th Cir. 2006); Brown v. Bryan County, 219 F.3d 450, 475 (5th Cir. 2000);

Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1102 (9th Cir.

1995); Commercial Union Ins. Co. v. Walbrook Ins. Co., 41 F.3d 764, 770 (1st

Cir. 1994). Law of the case binds both the district court and the appellate court to

the factual findings and legal conclusions reached by the appellate court on a

previous appeal of the same case. United States v. Stinson, 97 F.3d 466, 469 (11th

                                         18
Cir. 1996). On remand, the district court is “not to assert jurisdiction over matters

outside the scope of a limited mandate.” United States v. Tamayo, 80 F.3d 1514,

1520 (11th Cir. 1996). The 2001 remand in this case gave limited jurisdiction to

the district court to examine the record, and reconstruct exhibits if necessary, with

the opportunity to review its earlier ruling under Rule 806. Law of the case

dictates that the district court cannot revisit sentencing under such a limited

mandate.

      An exception to the law of the case doctrine arises if controlling authority

has since made a contrary decision of law applicable to that issue. Stinson, 97

F.3d at 469. Mr. Rodriguez argues that contrary and controlling authority, in the

form of Booker, now applies to his case.

      The 2001 remand did not concern sentencing. The “only issues remaining

relate to [Mr.] Rodriguez’s Rule 806 argument.” Novaton, 271 F.3d at 993. The

sentencing, like other factual and legal conclusions, is law of the case and will not

be disturbed. Compare United States v. Amedeo, 487 F.3d 823, 830 (11th Cir.

2007) (finding Booker to be “an intervening change in the law of sentencing that

made a contrary decision of law applicable” when the case had been remanded for

re-sentencing); United States v. Puche, 155 Fed. Appx. 487, 492 (11th Cir. 2005)

(ruling that re-sentencing was appropriate in light of Booker because the remand

                                           19
had included specific instructions to the district court to sentence under the

Guidelines); with United States v. Correa, 197 Fed. Appx. 857, 857-58 (11th Cir.

2006) (holding reconsideration under Booker was inappropriate because the

remand was for the limited purpose of correcting a scrivener’s error); Burrell v.

United States, 467 F.3d 160, 165-66, 166 n.4 (2d Cir. 2006) (concluding that

defendant’s sentence was the law of the case because the remand was strictly for

ministerial purposes, though re-sentencing in light of Booker may have been

appropriate had the remand been for re-sentencing).

      This Court’s 2001 remand was unrelated to Mr. Rodriguez’s sentence. Law

of the case precludes Mr. Rodriguez from now challenging his sentence under

Booker.

      We affirm the district court in all respects.

      AFFIRMED.




                                          20
