FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 26, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11877

Non-Argument Calendar

________________________

D. C. Docket No. 98-06212-CR-WJZ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MICHAEL ROBERT LEE, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 26, 2008)

Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

Michael Robert Lee appeals pro se the denial of his motion to reduce his
2

sentence, which he filed pursuant to 18 U.S.C. § 3582(c)(2). He contends that the

district court erred by denying his motion for modification of sentence because the

November 1, 2000, amendments to the Sentencing Guidelines, specifically

Amendments 599 and 600, retroactively apply to bar sentence enhancements he

received.

We review a district court’s decision not to grant a sentence reduction under

18 U.S.C. § 3582(c)(2) only for an abuse of discretion. United States v. Moreno,

421 F.3d 1217, 1219 (11th Cir. 2005). The law-of-the-case doctrine provides that

“an issue decided at one stage of a case is binding at later stages of the same case.” 

United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997). Under the

doctrine, a “legal decision made at one stage of the litigation, unchallenged in a

subsequent appeal when the opportunity existed, becomes the law of the case for

future stages of the same litigation, and the parties are deemed to have waived the

right to challenge that decision at a later time.” Id. We may deviate from the lawof-the-case doctrine when: (1) a subsequent trial involves substantially different

evidence, (2) controlling law has been changed by an intervening decision that is

binding precedent, or (3) the decision was clearly erroneous and a manifest

injustice would result from not changing it. Id. at 1561. 
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Lee’s § 3582(c)(2) motion was based on the same arguments he

unsuccessfully made in an earlier § 3582(c)(2) motion in this same underlying

criminal case. The district court denied Lee’s first § 3582(c)(2) motion on

December 21, 2004, and Lee never filed an appeal from that denial. He has not

presented any new evidence, identified a new legal decision, or persuaded us that

the district court’s decision on his earlier motion was clearly erroneous and

resulted in a manifest miscarriage of justice. See Escobar-Urrego, 110 F.3d at

1560. 

Alternatively, Lee’s motion lacked merit anyway. Amendment 600, as the

district court noted, is not retroactively applicable. United States v. Armstrong, 347

F.3d 905, 907–08 (11th Cir. 2003); U.S.S.G. § 1B1.10(a) & (c). Lee argues that

Amendment 599, which is retroactive, makes a difference because it would

preclude him from receiving the four-level increase in offense level for using or

possessing a firearm in connection with his felony offense under U.S.S.G. §

2K2.1(b)(5). However, that enhancement was not applied to calculate Lee’s

offense level anyway, because he was sentenced as a career offender pursuant to

U.S.S.G. § 4B1.1, the application of which Lee does not challenge. In this

situation, because § 2K2.1(b)(5) had no effect Amendment 599 is not implicated. 

See Armstrong, 347 F.3d at 908.
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Lee’s argument that he should win because the government and probation

officer failed to comply with the district court’s briefing deadline is frivolous. 

AFFIRMED.