                    Case: 11-16074         Date Filed: 08/13/2012   Page: 1 of 3

                                                                      [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-16074
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:09-cr-20729-JEM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                versus

DANIEL STEPHEN,

lllllllllllllllllllllllllllllllllllllll                               l Defendant-Appellant.

                                     ________________________

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

                                           (August 13, 2012)

Before TJOFLAT, CARNES, and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 11-16074     Date Filed: 08/13/2012   Page: 2 of 3

      Daniel Stephen was convicted of conspiracy to commit mail fraud in

violation of 18 U.S.C. § 1349. The district court calculated a total offense level of

38—which included a 2-level increase under United States Sentencing Guidelines

§ 2B1.1(b)(9)(C) (Nov. 2009) and a 2-level increase under § 3B1.3 because

Stephen abused a position of trust—and a criminal history category of I. His

offense carried a statutory maximum of 240 months imprisonment, see 18 U.S.C. §

1341, so the resulting guidelines range was 235–240 months imprisonment. The

court sentenced Stephen to 240 months in prison.

      Stephen appealed his sentence, and in an unpublished decision, we held that

the district court did not clearly err in applying the sophisticated-means

enhancement but that it had clearly erred in applying the abuse-of-trust

enhancement. United States v. Stephen, 440 F. App’x 824, 828–30 (11th Cir.

2011) (unpublished). We vacated Stephen’s sentence and remanded for

resentencing. Id. at 830. At resentencing, the district court again applied the

sophisticated-means enhancement, calculating a new total offense level of 36 and

a new guidelines range of 188–235 months imprisonment. It sentenced Stephen to

188 months in prison. Stephen appeals, contending that the district court erred in

applying of the sophisticated-means enhancement.

      This case is controlled by the law of the case doctrine, which provides that

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              Case: 11-16074     Date Filed: 08/13/2012    Page: 3 of 3

“the district court and the court of appeals are bound by findings of fact and

conclusions of law made by the court of appeals in a prior appeal of the same

case.” United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996). There are

three exceptions to the law of the case doctrine: (1) the evidence in the later

sentence hearing is substantially different; (2) there is a change in controlling law;

or (3) the earlier decision was “clearly erroneous and would work manifest

injustice.” Id. at 469. Stephen argues that the first exception applies here, but he

presented no new evidence relating to the sophisticated-means enhancement when

he was resentenced. The first exception to the law of the case doctrine, therefore,

does not apply, which forecloses our review of the district court’s application of

that enhancement.

      AFFIRMED.




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