[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-12844

Non-Argument Calendar

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D.C. Docket No. 0:10-cr-60311-DMM-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

JIMMY LEE THEODORE, 

 Defendant - Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(December 17, 2019)

Before JORDAN, NEWSOM and DUBINA, Circuit Judges.

PER CURIAM:

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Appellant, Jimmy Lee Theodore, a federal prisoner proceeding pro se, 

appeals the district court’s order denying his motion for reconsideration filed on 

November 5, 2018 (“the second motion”). The second motion was one for 

reconsideration of the district court’s denial of an earlier motion for 

reconsideration (“the first motion”) of the district court’s order granting the 

government’s motion to apply inheritance funds in Theodore’s Bureau of Prisons 

(“BOP”) trust account towards his outstanding criminal restitution judgment. The 

government moves for summary affirmance and an order staying the briefing 

schedule. After review, we grant the government’s motion for summary 

affirmance and deny its motion to stay the briefing schedule as moot.

I. Procedural History 

Theodore pleaded guilty to wire fraud, using unauthorized access devices, 

and aggravated identity theft, and his plea agreement included a waiver of his right 

to appeal any sentence imposed, including any restitution order, or to appeal the 

manner in which the sentence was imposed. During the plea colloquy, Theodore 

expressly agreed to pay restitution as ordered, and the restitution/sentence appeal 

waiver was established on the record. The district court sentenced Theodore to 

175 months of imprisonment, to be followed by three years of supervised release, 

and ordered him to pay restitution of $631,000. Theodore waived his right to a 

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restitution hearing and agreed to pay the restitution ordered. Theodore filed a 

notice of appeal from the judgment, and this court dismissed his appeal. See 

United States v. Andrulonis and Theodore, 476 F. App’x 379 (11th Cir. 2012).

In August 2017, the government filed a motion requesting the district court 

to apply the funds in Theodore’s BOP trust account towards the outstanding 

restitution order in his case. Theodore had paid only $425 towards the $631,000 

restitution amount, and he had $53,599.16 in his trust account from an inheritance 

Theodore received as a result of his mother’s death. The district court entered an 

order requiring the BOP to transfer this money from Theodore’s trust account to 

the Clerk of the Court for the money to be applied to Theodore’s outstanding 

judgment of restitution.

Theodore appealed the district court’s order to our court, Case No. 17-

13777. Immediately after filing his notice of appeal, Theodore filed a motion in 

the district court requesting that the court reconsider its order requiring the BOP to 

relinquish the funds in his prison account (“the first motion”). Theodore also 

requested that this court stay the appellate proceedings pending the district court’s 

resolution of the first motion for reconsideration. After entertaining responses 

from both parties, the district court denied Theodore’s first motion for 

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reconsideration and directed the funds from his BOP account to be applied towards 

his outstanding criminal monetary penalties judgment. 

Theodore did not appeal the district court’s order denying the first motion 

for reconsideration; rather, he filed a second motion for reconsideration. Theodore 

requested this court stay appellate proceedings pending the district court’s 

consideration of the second motion for reconsideration. This court denied his 

motion to stay, and the appellate proceedings in Case No. 17-13777 resumed. In 

July 2019, this court ruled that it lacked jurisdiction to consider Theodore’s 

arguments that challenged the district court’s order denying the first motion for 

reconsideration because he did not amend his notice of appeal to include a review 

of the district court’s denial of his Rule 59 first motion for reconsideration. We 

also ruled that Theodore’s appeal was precluded by his sentence appeal waiver, 

which encompassed the payment of restitution. See United States v. Theodore, No. 

17-13777 (11th Cir. July 9, 2019). In the interim, the district court summarily 

denied the second motion for reconsideration that now is presently before us.

II. Discussion

Summary disposition is appropriate either where time is of the essence, such 

as “situations where important public policy issues are involved or those where 

rights delayed are rights denied,” or where “the position of one of the parties is 

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clearly right as a matter of law so that there can be no substantial question as to the 

outcome of the case, or where, as is more frequently the case, the appeal is 

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 

1969).1

 The later reason is applicable here and allows for summary affirmance.

“A motion to alter or amend a judgment must be filed no later than 28 days 

after the entry of the judgment.” Fed. R. Civ. P. 59(e). The only grounds upon 

which a Rule 59(e) motion can be granted are (1) newly discovered evidence or (2) 

manifest errors of law or fact. United States v. Marion, 562 F.3d 1330, 1335 (11th 

Cir. 2009). Further, a Rule 59(e) motion cannot be used “to relitigate old matters, 

raise argument[s] or present evidence that could have been raised prior to the entry 

of judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 

(11th Cir. 2005). Moreover, we have held that “a Rule 59(e) motion cannot be 

used simply as a tool to reopen litigation where a party has failed to take advantage 

of earlier opportunities to make [his] case.” Stansell v. Revolutionary Armed 

Forces of Colombia, 771 F.3d 713, 744 (11th Cir. 2014). We review for abuse of 

discretion the district court’s decision on a motion to alter or amend a judgment. 

Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006).

1 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding 

precedent all decisions of the former Fifth Circuit handed down prior to the close of business on 

September 30, 1981).

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Under the law-of-the-case doctrine, both the district court and this court are 

bound by findings of fact and conclusions of law made by this court on a prior 

appeal of the same case unless “(1) a subsequent trial produces substantially 

different evidence, (2) controlling authority has since made a contrary decision of 

law applicable to that issue, or (3) the prior decision was clearly erroneous and 

would work manifest injustice.” United States v. Stinson, 97 F.3d 466, 469 (11th 

Cir. 1996).

We liberally construe Theodore’s arguments that the district court failed to 

consider 18 U.S.C. § 3664(f)(2) and the needs of his wife and child when it granted 

the government’s motion to apply funds towards his outstanding restitution 

judgment. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 

1998). However, these arguments are not properly before us because they 

challenge issues that Theodore previously appealed and we considered. See 

Stinson, 97 F.3d at 469. Moreover, the notice of appeal Theodore filed designated 

only the order denying the second motion to reconsider and was timely to that 

order only. See Fed. R. Civ. P. 59(e). Thus, our review is limited to the district 

court’s denial of the second motion to reconsider.

As to Theodore’s arguments that the district court erred by denying the 

second motion for reconsideration without explanation and by failing to address 

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explicitly each of his arguments, Theodore has presented no authority requiring a 

district court do so. Theodore’s reliance on Clisby v. Jones, 960 F.2d 925 (11th 

Cir. 1992), is inapplicable because that case involved a writ of habeas corpus under 

28 U.S.C. § 2254, which this case does not. Hence, in the absence of binding 

precedent, Theodore cannot show that the district court committed a “manifest 

error of law,” in denying the second motion to reconsider and, therefore, cannot 

show an abuse of discretion by the district court. See Marion, 562 F.3d at 1335.

Because there is no substantial question about the outcome of the case, we 

GRANT the government’s motion for summary affirmance, and we DENY the 

government’s motion to stay the briefing schedule as moot.

AFFIRMED. 

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