                 Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit


No. 06-2142

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                               EDGAR MEDINA,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                                   Before

                        Boudin, Chief Judge,
                  Campbell, Senior Circuit Judge,
                     and Lynch, Circuit Judge.



     Kevin J. Fitzgerald, Assistant Federal Defender, on brief
for appellant.
     Donald C. Lockhart and Stephanie S. Browne, Assistant U.S.
Attorneys, and Robert Clark Corrente, United States Attorney, on
brief for appellee.



                              March 28, 2007
                 Per Curiam.       This is an appeal from resentencing

  after remand from this court on defendant's prior appeal.                  See

  United States v. Medina, 427 F.3d 88 (1st Cir. 2005) ("Medina

  I")       (affirming    defendant's      conviction   but   remanding      for

  resentencing in light of United States v. Booker, 543 U.S. 220

  (2005)).       On remand, defendant was sentenced to 15 years'

  imprisonment,        the     mandatory    minimum   for   the   offenses   of

  conviction.

                 In this appeal from that sentence, defendant focuses

  solely on the mandatory minimum contained in 18 U.S.C. § 841,

  which he continues to argue applies only to offenses involving

  crack cocaine, despite this court's ruling to the contrary in

  his first appeal.1           See Medina I, 427 F.3d at 92 (holding that

  21 U.S.C. § 841 regulates exactly what it's terms suggest: the

  possession      of     any   form   of   'cocaine   base'").      Under    the

  doctrines of law of the case and stare decisis, we decline to

  reconsider this court's prior rulings on that issue.




        1
      Although in Medina I, this court was interpreting the phrase
"cocaine base" in 21 U.S.C. § 841 to determine whether the district
court accurately defined the substantive offense, while here the
same phrase is being interpreted to determine whether the mandatory
minimum provision of that same statute applies, the difference is
immaterial. Indeed, the very case that established the meaning of
that phrase in this circuit did so in the sentencing context.
United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992)
(per curiam) (as amended on rehearing).

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           Under the relevant branch of the law of the case

doctrine, "a legal decision made at one stage of a civil or

criminal proceeding . . . remain[s] the law of that case

throughout the litigation, unless and until the decision is

modified   or   overruled    by   a   higher   court.    That   branch

binds . . . a successor appellate panel in a second appeal in

the same case . . . ."       United States v. Moran, 393 F.3d 1, 7

(1st Cir. 2004); see also Ellis v. United States, 313 F.3d 636,

646-47 (1st Cir. 2002) (explaining the "salutary policies"

behind this doctrine).

           Although that branch of the doctrine is prudential

and has certain exceptions, the only one even potentially

applicable here--that adhering to the law of the case would

yield "a manifestly unjust result," Ellis, 313 F.3d at 648--is

unavailing. "[A] litigant seeking to fit within [the] confines

[of this exception] must negotiate a steep uphill climb. . . .

[A] finding of manifest injustice requires, at a bare minimum,

'a   definite   and   firm   conviction   that   a   prior   ruling   is

unreasonable or obviously wrong.'"             Moran, 393 F.3d at 8

(quoting Ellis, 313 F.3d at 648).

           That demanding standard is not met here.           Far from

being "obviously wrong," the panel's ruling in the first appeal

was itself dictated by the decisions of other panels on this

issue in previous cases, Medina I, 427 F.3d at 92 (citing


                                  -3-
Lopez-Gil, 965 F.3d at 1134, and United States v. Richardson,

225 F.3d 46, 49 (1st Cir. 2000)), which that panel was not free

to revisit, absent supervening authority, which did not and

still does not exist, see United States v. Anderson, 452 F.3d

66, 86 (1st Cir.), cert. denied, 127 S. Ct. 696 (2006).

Apparently acknowledging that point, defendant suggests in his

brief that this appeal be heard en banc.   However, he filed no

petition to that effect.     See Fed. R. App. P. 35(b).   That

procedural consideration aside, under the law of the case

doctrine discussed above, this case would be an unlikely

vehicle for en banc consideration, which could have been but

was not sought before or after the panel's decision in the

first appeal.   United States v. Ticchiarelli, 171 F.3d 24, 29

(1st Cir. 1999).

           Because we therefore decline to revisit our prior

rulings that the phrase "cocaine base" in 21 U.S.C. § 841

applies not only to crack cocaine but to any form of cocaine

base, we do not reach defendant's subsidiary arguments that he

was entitled to but did not receive a jury finding beyond a

reasonable doubt, or even a judicial finding by a preponderance

of the evidence, that the substance involved here was crack

cocaine.

           Affirmed.   See 1st Cir. Loc. R. 27.0(c).




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