United States v. Steven Ryan Michael Sholly

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 26, 2021
• Docket: 20-12339
• Status: Unpublished

Opinion

USCA11 Case: 20-12339 Date Filed: 03/26/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12339 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cr-00074-RV-8

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEVEN RYAN MICHAEL SHOLLY,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(March 26, 2021)

Before MARTIN, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12339 Date Filed: 03/26/2021 Page: 2 of 9

This is Steven Sholly’s second appeal challenging the district court’s drug-

quantity finding and resulting sentence at his sentencing for trafficking marijuana.

In the first appeal, we vacated Sholly’s 59-month prison sentence and remanded for

resentencing after concluding that the government failed to prove that Sholly had

possessed at least 100 kilograms of marijuana in the course of the conspiracy to

which he pled guilty. On remand, the district court again found a drug quantity in

excess of 100 kilograms of marijuana and sentenced Sholly to 59 months. But

because the record at the resentencing was not substantially different than the record

at the original sentencing, the doctrine of law of the case requires that we again

vacate the sentence and remand for resentencing.

I.

Sholly pled guilty to conspiracy to possess marijuana with intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1) and 846. According to the presentence

investigation report (“PSR”), Sholly received packages of marijuana in Florida that

were shipped by coconspirator Charles Sindylek in California. In addition to

conducting trash pulls and executing a search warrant at Sholly’s house, government

agents analyzed FedEx and UPS shipping records and identified twelve packages

that were sent to “addresses controlled by Sholly.” But the government believed

that the shipping records failed to accurately reflect the amount of marijuana Sholly

received from Sindylek. And the PSR recommended holding Sholly accountable for

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68 packages, each containing six pounds of marijuana, for a total drug quantity of

185.06 kilograms. Sholly objected that the amount should be significantly lower.

To prove drug quantity at Sholly’s sentencing, the government called an agent

who testified that Sindylek had told him that Sholly had received weekly shipments

of six pounds of marijuana each between 2013 and April 2015. Sholly responded

that this hearsay statement was not reliable because it did not “mesh” with the

shipping records—which otherwise corresponded to the government’s estimation of

drugs attributable to the other coconspirators. The government suggested that the

shipping records were incomplete in Sholly’s case because it did not have all the

addresses at which Sholly received marijuana. The district court ultimately found

that Sholly was responsible for at least 100 kilograms of marijuana, based in part on

Sindylek’s hearsay statement, and sentenced him to 59 months in prison.

On appeal, we vacated Sholly’s sentence and remanded for resentencing,

“conclud[ing] that the government did not meet its burden to prove that Sholly had

possessed at least 100 kilograms of marijuana in the course of the conspiracy.”

United States v. Sholly, 785 F. App’x 714, 718 (11th Cir. 2019). We found that the

district court erred when it relied on Sindylek’s hearsay statement without making

an explicit finding about its reliability and without its reliability being “apparent

from the record.” Id. at 718–19.

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“Also,” we continued, the “record does not contain sufficient indicia of the

hearsay statement’s reliability.” Id. at 719. We noted that the evidence cited by the

government “d[id] not corroborate Sindylek’s hearsay statement that Sholly received

weekly shipments of marijuana,” that the shipping records were “perfectly consistent

with the volume of drugs and evidence of drug shipment found during the

investigation,” and that there was “no evidence that suggested that Sholly received

shipments of marijuana at other addresses.” We therefore concluded that “it was

clear error for the district court to rely on [Sindylek’s hearsay statement] in

calculating the weight of marijuana” attributable to Sholly. Id.

The district court held another sentencing hearing when the case returned on

remand. In a sentencing memorandum and at the resentencing hearing, the

government maintained that the court could find Sindylek’s hearsay statement

sufficiently reliable based on the record in Sholly’s case and the cases of his

codefendants, though it did not submit any new evidence or cite to any information

that was not available at the time of Sholly’s original sentencing. For his part, Sholly

questioned “how the [g]overnment can have a burden that the appellate court found

it didn’t meet, not put on any more evidence, and somehow now meet that burden at

this sentencing hearing.”

Ultimately, the district court again relied on Sindylek’s hearsay statement in

finding that Sholly was responsible for at least 100 kilograms of marijuana, stating

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that it was “credible” in light of the court’s prior interactions with Sindylek and other

evidence in the record. The court again sentenced Sholly to 59 months in prison.

Sholly now appeals, arguing that the district court did not follow the law of

the case. We agree.

II.

Under the law-of-the-case doctrine, the parties may not relitigate, and we may

not reconsider, issues that were decided in an earlier appeal of the same case. United

States v. Siegelman, 786 F.3d 1322, 1327 (11th Cir. 2015); United States v. Jordan,

429 F.3d 1032, 1035 (11th Cir. 2005). This rule encompasses both findings of fact

and conclusions of law made by the appellate court. United States v. Anderson, 772

F.3d 662, 668 (11th Cir. 2014); see United States v. Pressley, 345 F.3d 1205, 1216–

17 (11th Cir. 2003) (holding that a prior drug quantity finding was law of the case).

The law-of-the-case doctrine may be overcome where substantially different

evidence is produced, controlling authority has changed, or the prior decision was

clearly erroneous and application of it would result in manifest injustice. Jackson v.

State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1283 (11th Cir. 2005).

Here, law of the case precluded the district court from again relying on

Sindylek’s hearsay statement that Sholly received weekly shipments of marijuana.

In the prior appeal, we not only faulted the court for failing to make an explicit

reliability finding about the hearsay statement, we “[a]lso” independently reviewed

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the record and found that it did not “contain sufficient indicia of the hearsay

statement’s reliability.” Sholly, 785 F. App’x at 718–19. We therefore concluded

“that the government did not meet its burden to prove that Sholly had possessed at

least 100 kilograms of marijuana in the course of the conspiracy.” Id. at 718. So

although the district court at resentencing may have cured the procedural error with

regard to the reliability finding, that does not change the substantive deficiencies we

identified with the government’s proof. See id. at 718–19.

The government responds that the law-of-the-case doctrine does not apply

because “additional information distinguishes the case factually from the case

decided in the first appeal.” But the information the government refers to is not new

or “substantially different” from the information before us in Sholly’s first appeal.

See Jackson, 405 F.3d at 1283. In fact, the government admits that it relies on

information that “was part of the record at the time of the original sentencing,”

though it maintains that the information “was not presented before this Court for the

initial appeal.”

A closer look at the information the government claims was not previously

presented shows why it is insufficient to evade the doctrine of law of the case. First,

the government disputes this Court’s statement that there was “no evidence that

suggested that Sholly received shipments of marijuana at other addresses.” Sholly,

785 F. App’x at 718. In the government’s view, we “neglected to consider” that

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Sholly’s own statements to government agents corroborated its claim that Sholly

received marijuana at other unknown addresses, which, in turn, supported Sindylek’s

hearsay statement. We don’t think we did, but that’s beside the point. 1 As the

government admits, the report summarizing Sholly’s statements was “filed in its

entirety in the record” before the original sentencing, and so it was before this Court

for review in the first appeal. Our finding that there was “no evidence that suggested

that Sholly received shipments of marijuana at other addresses” is, therefore, law of

the case. See Anderson, 772 F.3d at 668.

Second, according to the government, the district court at resentencing had

information we did not have “regarding nine related defendants and had already

sentenced six of Mr. Sholly’s co-defendants at the time of Mr. Sholly’s original

sentencing hearing, including Sindylek.”2 But the government fails to identify any

specific information obtained from these related defendants or codefendants that

corroborated Sindylek’s hearsay statement. And again, the information about

Sholly’s codefendants was not new because, as the government’s own statement

1 That Sholly identified other unknown addresses where marijuana was being sent to other members of the conspiracy does not mean that Sholly personally received marijuana at other addresses. 2 The government also cited “additional sealed information in the record about Sindylek’s statements to law enforcement,” but as far as we can tell, this additional sealed information was not made available to defense counsel before or during the resentencing hearing, despite defense counsel’s objection on this ground at resentencing. We therefore do not consider this information. See United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010) (stating that a defendant must have “an opportunity to rebut” hearsay evidence used against him at sentencing). 7 USCA11 Case: 20-12339 Date Filed: 03/26/2021 Page: 8 of 9

concedes, the court had already sentenced the codefendants at the time of Sholly’s

original sentencing hearing. So in Sholly’s first appeal, the government could have,

but did not, argue that the reliability of Sindylek’s hearsay statement was supported

by the district court’s prior interactions with Sindylek during the plea colloquy and

at sentencing.

In sum, the government’s contention that the doctrine of law of the case does

not apply depends on (1) an argument that we previously rejected and (2) an

argument that could have been, but was not, presented in the first appeal. Neither

falls within an exception to law-of-the-case doctrine. See Jackson, 405 F.3d at 1283.

And the government has not met a recognized exception by showing that

substantially different evidence was produced at Sholly’s resentencing, that

controlling authority has changed, or that application of the prior decision would

result in manifest injustice. See id.

For these reasons, law of the case applies to our prior determination that

Sindylek’s hearsay statement that Sholly received weekly shipments of marijuana

was not sufficiently reliable. As a result, the government again “did not meet its

burden to prove that Sholly had possessed at least 100 kilograms of marijuana in the

course of the conspiracy.” Sholly, 785 F. App’x at 718. We therefore vacate

Sholly’s sentence and remand with instructions to resentence Sholly based on the

current record and without regard to Sindylek’s hearsay statement.

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VACATED AND REMANDED.