*

Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for

the Second Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-5063.

UNITED STATES of America, Plaintiff-Appellee,

v.

Alvaro ESCOBAR-URREGO, Defendant-Appellant.

May 1, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 92-300-CR-UUB), Ursula Ungaro-Benages,

Judge.

Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*

,

Senior Circuit Judge.

MESKILL, Senior Circuit Judge:

Alvaro Escobar-Urrego pleaded guilty to importing liquified

cocaine into this country. At his sentencing, the United States

District Court for the Southern District of Florida, UngaroBenages, J., decided that Escobar-Urrego had imported 2,036 grams

of usable cocaine and sentenced Escobar-Urrego accordingly. See

United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991)

(sentences for drug offenders to be based on "usable" quantity of

drugs possessed by defendant). After Escobar-Urrego was sentenced,

the United States Sentencing Guidelines (Guidelines) were amended

retroactively to state that a drug offender's sentence should be

based on only the quantity of drugs possessed by the defendant that

could be "used." Guidelines App. C, Amendment 484 (amending

Guidelines § 2D1.1, Application Note 1). Escobar-Urrego then moved

to have his sentence recalculated based on the amendment, and the
district court denied Escobar-Urrego's motion.

We conclude that the question of how much usable cocaine

Escobar-Urrego imported has already been decided, and that EscobarUrrego is therefore barred by the law-of-the-case doctrine from

relitigating the issue. Accordingly, we affirm the decision of the

district court.

BACKGROUND

I. Sentencing

In May 1992, Alvaro Escobar-Urrego arrived at the Miami

International Airport from Columbia and presented his luggage to

United States Customs Agents. The Customs Agents performed a field

test on a liquid contained in two bottles Escobar-Urrego was

carrying, and the liquid tested positive for cocaine.

Escobar-Urrego was arrested and indicted for importing cocaine

into the United States in violation of 21 U.S.C. §§ 952(a),

960(a)(1) and 18 U.S.C. § 2 (Count I), and for possessing cocaine

with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2 (Count II). The government eventually entered into

a plea agreement with Escobar-Urrego, and pursuant to that

agreement, Escobar-Urrego pleaded guilty to Count I and the

government dropped Count II.

To sentence Escobar-Urrego, the district court had to

determine how much cocaine Escobar-Urrego imported, and at the

time, the issue was controlled by United States v. Rolande-Gabriel,

938 F.2d 1231 (11th Cir.1991). In that case, Mary Rolande-Gabriel

pleaded guilty to importing a liquid which contained cocaine. Id.

at 1233. A laboratory test determined that the total weight of the
liquid was 241.6 grams. Id. at 1232. However, before the cocaine

could be used as intended, the cocaine had to be separated from the

liquid, and once that was done, the liquid contained only 72.2

grams of usable cocaine. Id. at 1233, 1235. The district court

based Rolande-Gabriel's sentence on 241.6 grams of cocaine. Id. at

1233.

On appeal, this Court stated:

Rolande-Gabriel's sentence was based on a weight of 241.6

grams, despite the fact that only 72 grams of the mixture were

usable; however, a defendant possessing a usable mixture of

cocaine ... weighing 75 grams would receive a significantly

smaller sentence than Rolande-Gabriel. This is manifestly

unjust and defeats the Sentencing Guidelines' stated policy of

sentencing uniformity and proportionality.

Id. at 1237. Accordingly, this Court held that a defendant's

sentence should be based on only the "usable" quantity of drugs

that the defendant possessed. Id. Here, because Escobar-Urrego

imported a mixture that contained both usable cocaine and an

unusable liquid substance, Rolande-Gabriel mandated that EscobarUrrego's sentence be based on only the usable cocaine that EscobarUrrego imported.

The Drug Enforcement Agency (DEA) measured the liquid EscobarUrrego imported and determined that its total weight was 4,173

grams. The DEA also weighed the liquid and noted its purity, and

determined that the total quantity of cocaine Escobar-Urrego

imported, minus the unusable liquid, was 2,036 grams. At EscobarUrrego's sentencing, his defense attorney stated that he had

consulted with an independent chemist about the DEA's test, and

that the independent chemist concluded that the DEA's test was

accurate. However, Escobar-Urrego maintained that he imported only
 1

How Escobar-Urrego arrived at the figure of 258 grams is

unclear. The government contends that the figure was provided by

"jailhouse chemists" while Escobar-Urrego claimed at his

sentencing that his family in Columbia provided the figure. 

258 grams of cocaine.1 In an effort to determine how much cocaine

Escobar-Urrego actually imported, the district court engaged in the

following exchange:

The Court: When the DEA lab weighed the cocaine did they

distill the cocaine from the liquid or did they just

weigh the liquid?

Defense Counsel: They weighed the liquid and noted its

purity.

The Court: Right....

....

The Court: Isn't there a particular discussion [in the

Guidelines] of how the drugs are supposed to be weighed

in [this case]?

Defense Counsel: Judge, the case [apparently referring to

Rolande-Gabriel ] that Mr. Escobar-Urrego brought with

him ... talks about cases such as this where the

narcotics are not consumable in their present state, and

that case suggests that you take away those portions that

are not usable and use only the actual drug. And that's

essentially what happened in this case.

The Court: Well, I appreciate that you and the government

don't have a dispute about this....

Defense Counsel: The reason I don't have a dispute ... is

because I conferred with ... an independent chemist ...

and he told me that that was an accurate report, an

accurate reading for purposes of total offense conduct

for the guidelines.

(emphasis added).

The district court stated on the record that it was "satisfied

that the amount of drugs determined by the DEA chemist [2,036

grams] is the correct amount of drugs." The district court never

specifically found that Escobar-Urrego had imported 2,036 grams of
 2

When Escobar-Urrego was sentenced, Guidelines § 2D1.1(c)(8)

determined his base offense level. In 1994, the Guidelines were

amended, and although Guidelines § 2D1.1(c)(8) remained

unchanged, it was renumbered Guidelines § 2D1.1(c)(6). For

convenience, the Court is using the current numbering. 

usable cocaine. However, the district court understood that

Escobar-Urrego's sentence was to be based on only the usable

cocaine that Escobar-Urrego imported, and therefore, when the

district court concluded that 2,036 grams was "the correct amount

of drugs," it is clear that the district court did in fact decide

that Escobar-Urrego imported 2,036 grams of usable cocaine.

Having decided that Escobar-Urrego imported 2,036 grams of

usable cocaine, the district court concluded that Escobar-Urrego's

base offense level was twenty-eight. See Guidelines § 2D1.1(c)(6)2

& Note to Drug Quantity Table (A). The court decided that no

adjustments to the base level were warranted, and that EscobarUrrego had no criminal history points, see Guidelines § 4A1.1-.3.

Therefore, the court concluded that the proper sentencing range was

78-97 months, see Guidelines § 5A, Zone D, and sentenced EscobarUrrego to 78 months imprisonment to be followed by four years of

supervised release.

Escobar-Urrego appealed his sentence, and although he raised

several issues, he did not challenge the district court's

conclusion that he imported 2,036 grams of usable cocaine. This

Court affirmed the district court. See United States v. EscobarUrrego, 28 F.3d 116 (11th Cir.1994) (table of decisions).

II. The Amendment to the Guidelines and the Second Proceeding

On November 1, 1993, about seven months after Escobar-Urrego

was sentenced, Amendment 484 was added to the Guidelines. The
amendment states in pertinent part:

Mixture or substance does not include materials that must be

separated from the controlled substance before the controlled

substance can be used.... If such material cannot readily be

separated from the mixture or substance ... the court may use

any reasonable method to approximate the weight of the mixture

or substance to be counted.

Guidelines App. C, Amendment 484 (emphasis added) (amending

Guidelines § 2D1.1, Application Note 1). The amendment was made

retroactive, see Guidelines § 1B1.10(a) & (c), and therefore

applies to Escobar-Urrego's sentence.

Escobar-Urrego then made a motion with the district court

pursuant to 18 U.S.C. § 3582(c)(2), which allows an imprisoned

defendant to move for a reduced sentence if the Guidelines are

changed. Escobar-Urrego argued that under the amendment to the

Guidelines, his sentence should be recalculated and based on only

the amount of cocaine that he imported that could be "used." The

government moved to deny Escobar-Urrego's motion, arguing that the

same issue was raised at Escobar-Urrego's sentencing and decided

against him.

United States Magistrate Judge Stephen T. Brown, to whom the

case had been referred, recommended that Escobar-Urrego's motion be

denied. After Escobar-Urrego objected, the district court adopted

the magistrate judge's recommendation. Escobar-Urrego then filed

this appeal.

DISCUSSION

On appeal, Escobar-Urrego argues that under Amendment 484, his

sentence should be based on only the usable quantity of cocaine

that he imported. Escobar-Urrego argues that, as a factual matter,

the sentence imposed on him was not based on the usable amount of
cocaine that he imported. Rather, while Escobar-Urrego seemingly

concedes that weighing the liquid and noting its purity will show

the total amount of cocaine in the liquid, Escobar-Urrego contends

that this method will not show how much cocaine could be extracted

from the liquid and actually rendered usable. Because the

amendment requires that a defendant's sentence be based on only the

usable quantity of drugs that a defendant imported, Escobar-Urrego

argues that the cocaine should be retested and that his sentence

should be modified accordingly.

In response, the government argues that the same issue was

raised at Escobar-Urrego's sentencing and decided against him. The

government points out that at Escobar-Urrego's sentencing, pursuant

to Rolande-Gabriel, the district court concluded that EscobarUrrego imported 2,036 grams of usable cocaine. The government

contends that because the district court has already decided that

Escobar-Urrego imported 2,036 grams of usable cocaine, there is no

need to revisit that decision. We agree.

I. The Law of the Case

While the government never specifically identifies its legal

theory, it is clear that the government is relying on the

law-of-the-case doctrine. Under the law-of-the-case doctrine, an

issue decided at one stage of a case is binding at later stages of

the same case. Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 815-16, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988).

"Law of the case rules have developed to maintain consistency and

avoid reconsideration of matters once decided during the course of

a single continuing lawsuit." 18 Charles Alan Wright, Arthur R.
 3

Because Escobar-Urrego has moved to modify a judgment, see

18 U.S.C. § 3582(c)(2), the doctrines of res judicata and

collateral estoppel do not apply. Arizona v. California, 460

U.S. 605, 619, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). 

Miller & Edward H. Cooper, Federal Practice and Procedure § 4478,

at 788 (1981).3

While the law-of-the-case doctrine has several arms, see 18

Wright et al., supra, § 4478, the only one relevant here deals with

lower court rulings that have not been challenged on a first

appeal. As one court explained:

Under the law of the case 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.

Williamsburg Wax Museum v. Historic Figures, 810 F.2d 243, 250

(D.C.Cir.1987); see also United States v. Fiallo-Jacome, 874 F.2d

1479, 1481-83 (11th Cir.1989) (criminal defendant failed to raise

an issue on the defendant's first appeal, and when defendant tried

to raise the issue in a subsequent appeal, the court refused to

consider the issue, stating that the defendant would not be given

"two bites at the appellate apple") (quotation omitted);

Silverberg v. Paine, Webber, Jackson & Curtis, 724 F.2d 1456, 1457

(11th Cir.1983); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d

Cir.1981) ("It would be absurd that a party who has chosen not to

argue a point on a first appeal should stand better as regards the

law of the case than one who has argued and lost."); 18 Wright et

al., supra, § 4478 at 801 ("If the matter is omitted from one

appeal, ... it may be held foreclosed on a later appeal to the same

court as a matter of law of the case.").
 4

This Court has decided to be bound by decisions of the

Fifth Circuit Court of Appeals made on or before September 30,

1981, the day before the Fifth Circuit was split into the Fifth

and Eleventh Circuits. Bonner v. City of Prichard, Alabama, 661

F.2d 1206, 1209 (11th Cir.1981) (in banc). 

 Here, the issue that Escobar-Urrego has raised has already

been decided. At Escobar-Urrego's sentencing, the district court

concluded pursuant to Rolande-Gabriel, 938 F.2d at 1237, that

Escobar-Urrego imported 2,036 grams of "usable" cocaine. EscobarUrrego now seeks to receive the benefit of Amendment 484, which

requires that his sentence be based on the quantity of cocaine that

"can be used." See Guidelines App. C, Amendment 484 (amending

Guidelines § 2D1.1, Application Note 1). Rolande-Gabriel 's

"usable" standard and Amendment 484's "can be used" standard are

plainly identical.

Because Escobar-Urrego had the opportunity to appeal the

district court's decision that he imported 2,036 grams of usable

cocaine but did not, that decision is the law of the case, and

subject to the discussion below, precludes Escobar-Urrego from

relitigating the question of how much usable cocaine he imported.

II. Exceptions to the Law-of-the-Case Doctrine

In an oft-quoted passage, the Fifth Circuit stated:

While the "law of the case" doctrine is not an inexorable

command, a decision of a legal issue or issues ... establishes

the "law of the case" and must be followed in all subsequent

proceedings in the same case in the trial court or on a later

appeal in the appellate court, unless the evidence on a

subsequent trial was substantially different, controlling

authority has since made a contrary decision of the law

applicable to such issues, or the decision was clearly

erroneous and would work a manifest injustice.

White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967) (footnotes

omitted);4 Litman v. Massachusetts Mutual Life Ins. Co., 825 F.2d
1506, 1510 (11th Cir.1987) (same).

Here, no new evidence has been called to this Court's

attention, and so the first White exception to the law-of-the-case

doctrine does not apply.

 Further, there has been no change in the law. The law—that

a defendant's sentence should be based on only the amount of usable

drugs possessed by the defendant—has remained the same, only the

source of the law has changed. See Rolande-Gabriel, 938 F.2d at

1237; Guidelines App. C, Amendment 484 (amending Guidelines §

2D1.1, Application Note 1). Therefore, this exception does not

apply.

 Finally, the district court's decision was not a clear error.

As discussed above, Escobar-Urrego seemingly concedes that weighing

the liquid and noting its purity will show how much total cocaine

was in the liquid. Escobar-Urrego contends, however, that weighing

the cocaine and noting its purity will not show how much cocaine

could be extracted from the liquid and actually rendered usable.

Everyone at Escobar-Urrego's sentencing understood that EscobarUrrego's sentence was to be based on only the amount of usable

cocaine that Escobar-Urrego imported. After that point was

established, Escobar-Urrego's counsel informed the district court

that an independent chemist had concluded that 2,036 grams was

accurate for sentencing purposes. While Escobar-Urrego's chemist

may have been wrong, it is not clear to us that he was wrong, and

it was not a clear error for the district court to rely on EscobarUrrego's own chemist.

Accordingly, none of the exceptions to the law-of-the-case
 5

We note that litigants who have never raised an issue have

been held to have waived the issue for subsequent stages of the

same litigation. See United States v. Fiallo-Jacome, 874 F.2d

1479, 1481-83 (11th Cir.1989) (issue was never raised in the

district court or on defendant's first appeal even though

defendant may have known of the issue during his trial, and this

Court held that the issue was waived for defendant's second

appeal). Because the question of how much usable cocaine

Escobar-Urrego imported was raised at Escobar-Urrego's

sentencing, we need not decide how this case would be resolved if

the issue had never been raised. 

doctrine are applicable here, and Escobar-Urrego is precluded from

relitigating the question of how much usable cocaine he imported.5

CONCLUSION

We conclude that Escobar-Urrego is barred by the

law-of-the-case doctrine from relitigating the question of how much

usable cocaine he imported. Accordingly, the district court's

order denying Escobar-Urrego's motion is AFFIRMED.