              Case: 12-12588    Date Filed: 04/25/2013    Page: 1 of 4


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-12588
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:89-cr-00362-MGC-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JOHN GALATOLO,

                                                              Defendant-Appellant.
                          ________________________

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

                                 (April 25, 2013)

Before BARKETT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

      John Galatolo appeals the district court’s denial of his pro se motion to

correct an illegal sentence, pursuant to former Federal Rule of Criminal Procedure
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35(a). 1 “ Mr. Galatolo’s Rule 35 motion challenges a mandatory five-year

consecutive sentence he received for a conviction of 18 U.S.C. § 924(c).

       Mr. Galatolo was convicted in 1990 of numerous offenses related to drug-

trafficking, including a conviction under § 924(c) for possessing a firearm in

furtherance of a drug-trafficking crime. His convictions were based on events that

occurred in September 1986. In 2008, Mr. Galatolo filed his first Rule 35(a)

motion, which claimed that his § 924(c) conviction was illegal because the version

of § 924(c) in effect when he committed his offense did not prohibit the possession

of a firearm in furtherance of a drug-trafficking crime. The district court denied

the motion and we affirmed, stating that

       Galatolo is correct that he possessed a firearm in furtherance of a drug
       trafficking crime before it was a crime to do so. However, for
       purposes of Rule 35(a), Galatolo may only challenge the legality of
       his sentence and not his underlying conviction. Therefore, as a matter
       of law, Galatolo’s conviction must be treated as valid. Because a
       defendant who is convicted under § 924(c)(1)(A) must be sentenced to
       at least 5 years’ imprisonment, Galatolo’s 60-month sentence is not
       illegal.

United States v. Galatolo, 361 F.App’x. 29, 30 (11th Cir. Jan. 7, 2010).

       In his current Rule 35(a) motion, Mr. Galatolo argues that the district court

erroneously imposed a mandatory five-year sentence, to run consecutive with his

other sentences, by applying a version of § 924(c) that did not become effective

       1
          Former Rule 35(a) provided that “[t]he court may correct an illegal sentence at any
time” and it remains applicable to sentences committed prior to November 1, 1987. United
States v. Jackson, 923 F.2d 1494, 1496 n.1 (11th Cir. 1991).

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until November 1986. He contends that he should have been sentenced under the

version of § 924(c) in effect in September 1986, which would have produced a

sentence of imprisonment of one to ten years to run concurrently with his other

sentences. The district court summarily denied the motion.

      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.” Thomas v.

United States, 572 F.3d 1300, 1303 (11th Cir. 2009). However, we have

recognized three exceptions to the law-of-the-case doctrine: “(1) the evidence on a

subsequent trial was substantially different, (2) controlling authority has since

made a contrary decision of the law applicable to the issue, or (3) the previous

decision was clearly erroneous and would work a manifest injustice.” Westbrook

v. Zant, 743 F.2d 764, 768-69 (11th Cir. 1984).

      As our previous decision on Mr. Galatolo’s 2008 Rule 35(a) motion held

that his sentence under § 924(c)(1)(A) was not illegal, our review of his current

Rule 35(a) motion is governed by the law of the case doctrine. None of the

exceptions to the law of the case doctrine apply here. Contrary to Mr. Galatolo’s

argument, the version of § 924(c) in effect at the time he committed the underlying

offense mandated a five-year consecutive sentence upon for a § 924(c) conviction.

See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, tit. II, § 1005,

98 Stat. 1837, 2138 (1984). Our previous ruling on Mr. Galatolo’s original Rule


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35(a) was therefore not clearly erroneous. As a result, the resolution of Mr.

Galatolo’s Rule 35(a) motion is controlled by the law-of-the-case doctrine and the

district court did not err in denying his current Rule 35(a) motion.

      AFFIRMED.




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