Case: 19-12844 Date Filed: 12/17/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12844 Non-Argument Calendar ________________________
D.C. Docket No. 0:10-cr-60311-DMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY LEE THEODORE,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 17, 2019)
Before JORDAN, NEWSOM and DUBINA, Circuit Judges.
PER CURIAM: Case: 19-12844 Date Filed: 12/17/2019 Page: 2 of 7
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
2 Case: 19-12844 Date Filed: 12/17/2019 Page: 3 of 7
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
3 Case: 19-12844 Date Filed: 12/17/2019 Page: 4 of 7
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
4 Case: 19-12844 Date Filed: 12/17/2019 Page: 5 of 7
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).
5 Case: 19-12844 Date Filed: 12/17/2019 Page: 6 of 7
Under the law-of-the-case doctrine, both the district court and this court are
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Case: 19-12844 Date Filed: 12/17/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12844 Non-Argument Calendar ________________________
D.C. Docket No. 0:10-cr-60311-DMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY LEE THEODORE,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 17, 2019)
Before JORDAN, NEWSOM and DUBINA, Circuit Judges.
PER CURIAM: Case: 19-12844 Date Filed: 12/17/2019 Page: 2 of 7
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
2 Case: 19-12844 Date Filed: 12/17/2019 Page: 3 of 7
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
3 Case: 19-12844 Date Filed: 12/17/2019 Page: 4 of 7
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
4 Case: 19-12844 Date Filed: 12/17/2019 Page: 5 of 7
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).
5 Case: 19-12844 Date Filed: 12/17/2019 Page: 6 of 7
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
6 Case: 19-12844 Date Filed: 12/17/2019 Page: 7 of 7
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.