USA v. Michael Malgoza, No. 09-15977 (11th Cir. 2010)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAY 26, 2010 JOHN LEY CLERK No. 09-15977 Non-Argument Calendar ________________________ D. C. Docket No. 90-00032-CR-KLR UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL MALGOZA, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (May 26, 2010) Before BLACK, PRYOR and FAY, Circuit Judges. PER CURIAM: Michael Malgoza appeals the denial of his second motion to reduce his sentence. 18 U.S.C. § 3582(c)(2). We affirm. In 1997, Malgoza moved to reduce his sentence of life imprisonment based on Amendment 505 to the Sentencing Guidelines. 18 U.S.C. § 3582(c). The district court denied the motion. The district court considered the quantity of cocaine involved in Malgoza s drug offenses and criminal history, see 18 U.S.C. § 3553(a), and determined that Malgoza s sentence was fair and just. Malgoza did not appeal the decision. In 2009, Malgoza filed a renewed motion for reduction of sentence and repeated the arguments made in his first motion to reduce. The district court denied Malgoza s motion based on lack of jurisdiction. In the alternative, the district court ruled that it was bound by the law of the case and, if not, it was exercising its discretion [by] refus[ing] to reduce Malgoza s sentence. Malgoza s second motion to reduce was barred by the law of the case. The district court rejected Malgoza s first request to reduce his sentence, and Malgoza failed to appeal that decision. See United States v. Escobar-Urrego, 110 F.3d 1556, 1560 61 (11th Cir. 1997). Malgoza s alleged new evidence also was available when he moved to reduce his sentence in 1997. The denial of Malgoza s successive motion to reduce his sentence is AFFIRMED. 2

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