This order and judgment is not binding precedent except under the doctrines of *

law of the case, res judicata and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

June 14, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERRY LEE WILLIAMS,

Defendant - Appellant.

No. 05-3298

(D. Kansas)

(D.Ct. No. 03-CR-10140-JTM)

ORDER AND JUDGMENT

*

Before KELLY, McKAY, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Jerry Lee Williams was found guilty following a jury trial of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g), and sentenced as an
-2-

armed career criminal to 210 months imprisonment. On direct appeal, Williams

raised seven issues. We affirmed his conviction, but vacated his sentence due to

the district court’s belief the United States Sentencing Guidelines were

mandatory. United States v. Williams, 403 F.3d 1188, 1199-1200 (10th Cir.)

(Williams I), cert. denied, 126 S.Ct. 178 (2005). Upon remand, the district court

imposed the mandatory minimum sentence—180 months imprisonment—under

the Armed Career Criminal Act. 18 U.S.C. § 924(e). Exercising jurisdiction

under 28 U.S.C. § 1291, we AFFIRM.

Williams raises four issues on appeal: (1) in Williams I, this Court applied

an incorrect standard in reviewing Williams’ requested theory of the defense

instruction on “fleeting possession”; (2) the district court erred in giving the jury

a supplemental instruction on the issue of Williams’ knowing possession of the

firearm; (3) mere movement of a firearm from one state to another does not

satisfy the requirement of §922(g) that the firearm be possessed “in or affecting

commerce”; and (4) the district court erred in sentencing Williams as an armed

career criminal. Williams admits his second and third issues are the same as

those raised in Williams I, and thus the “law of the case” doctrine applies. We

conclude his first and fourth issues also merely reiterate those raised in Williams

I. See Williams I, 403 F.3d at 1195, n.7 & 1198.

Under the law of the case doctrine, “when a court decides upon a rule of

law, that decision should continue to govern the same issues in subsequent stages
-3-

of the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). Further,

“when a case is appealed and remanded, the decision of the appellate court

establishes the law of the case and ordinarily will be followed by both the trial

court on remand and the appellate court in any subsequent appeal.” Rohrbaugh v. 

Celotex Corp., 53 F.3d 1181, 1183 (10th Cir.1995). “The law of the case

doctrine is intended to prevent continued re-argument of issues already decided . .

. .” Huffman v. Saul Holdings, Ltd. P’ship, 262 F.3d 1128, 1132 (10th Cir. 2001)

(internal quotations and citation omitted). This Court has recognized only three

narrow exceptions to the doctrine: “(1) when the evidence in a subsequent trial is

substantially different; (2) when controlling authority has subsequently made a

contrary decision of the law applicable to such issues; or (3) when the decision

was clearly erroneous and would work a manifest injustice.” McIlravy v. KerrMcGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000) (internal quotations and

citations omitted). Williams does not argue these exceptions and rightly so. 

None of these circumstances exists here. We decided all issues raised in this 

appeal in Williams I. The law of the case doctrine applies.

AFFIRMED.

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge