United States v. Terry L. Scott

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 25, 2018
• Docket: 17-15354
• Status: Unpublished

Opinion

Case: 17-15354 Date Filed: 05/25/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15354 Non-Argument Calendar ________________________

D.C. Docket No. 4:04-cr-00037-RH-WCS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY L. SCOTT,

Defendant-Appellant.

________________________

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

(May 25, 2018)

Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM: Case: 17-15354 Date Filed: 05/25/2018 Page: 2 of 4

Terry Scott appeals pro se the denial of his motion to compel specific

performance of his plea agreement. Scott argues, as he did on direct appeal, that

the government was obligated to file a motion to reduce his sentence for his

substantial assistance. Scott also argues, for the first time on appeal, that the

district court sua sponte should have determined that the government breached the

plea agreement by subjecting him to a polygraph examination. We affirm.

The government argues that the district court lacked jurisdiction to entertain

Scott’s motion to compel because it was untimely, but we disagree. Federal Rule of

Criminal Procedure 35(b) bars the government from moving for a sentence

reduction more than one year after sentencing, subject to certain exceptions that do

not apply to Scott. See Fed. R. Crim. P. 35(b). Although Scott sought to compel the

government to file a motion to reduce that would be untimely and that the district

court would lack jurisdiction to consider, see United States v. Orozco, 160 F.3d

1309, 1313 (11th Cir. 1998), Scott’s motion was not filed pursuant to Rule 35(b)

and was timely.

Scott’s argument that the government was obligated to move for a sentence

reduction is barred by 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.” United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir.

1997). The doctrine bars a party from relitigating an issue “unless the evidence on

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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.” Id. at 1561 (quoting White v.

Murtha, 377 F.2d 428, 432 (5th Cir. 1967)). On direct appeal, we rejected as

without merit Scott’s argument that he was entitled to withdraw his guilty plea

because “the government acted in bad faith and violated its plea and cooperation

agreement . . . [by] refus[ing] to file a substantial assistance motion.” United States

v. Scott, 184 F. App’x 916, 917–19 (11th Cir. 2006). Because the issue that Scott

raises has already been decided against him by this Court and he identifies no

exception to the law-of-the-case doctrine that applies to him, the doctrine bars him

from relitigating whether he is entitled to a sentence reduction based on substantial

assistance.

The district court also did not err, much less plainly so, by failing to find sua

sponte a breach of Scott’s plea agreement based on the administration of his

polygraph examination. See United States v. Thayer, 204 F.3d 1352, 1356 (11th

Cir. 2000). “Whether the government violated the agreement is judged according

to the defendant’s reasonable understanding of the agreement when he entered the

plea.” United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007). Scott’s

written agreement did not mention polygraph examinations, so he could not have

reasonably thought that the administration of the examination violated his

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agreement with the government. Indeed, Scott requested the polygraph

examination, so if its administration violated his plea agreement, he would have

been barred from obtaining relief under the doctrine of invited error. That doctrine

bars a defendant from benefiting from error attributable to his actions. See United

States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). And “[w]here invited

error exists, it precludes a court from invoking the plain error rule and reversing.”

United States v. Cobb, 842 F.3d 1213, 1222 (11th Cir. 2016) (quoting Silvestri, 409

F.3d at 1327).

We AFFIRM the denial of Scott’s motion to compel.