Case: 15-15794    Date Filed: 09/29/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15794
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 9:12-cr-80054-WJZ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

JOSNY CHARLESTAIN,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 29, 2016)

Before MARTIN, ANDERSON, and DUBINA, Circuit Judges.

PER CURIAM:
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      Appellant Josny Charlestain appeals pro se the district court’s denial of his

motion to enforce the plea agreement, pursuant to which he was convicted of being

a felon in possession of a firearm and ammunition, in violation of 18 U.S.C.

§ 922(g)(1), and possessing a firearm and ammunition while under a court order

prohibiting domestic violence, in violation of 18 U.S.C. § 922(g)(8). On appeal,

Charlestain argues that the government breached the plea agreement by

introducing evidence at his sentencing hearing regarding his alleged involvement

in a 2009 murder, which Charlestain asserts was not “factual.”

                                          I.

      The law of the case doctrine bars relitigation of issues that were decided,

either explicitly or by necessary implication, in an earlier appeal of the same case.

United States v. Jordan, 

, 1035 (11th Cir. 2005). Under the law of

the case doctrine, both the district court and this court are bound by our findings of

fact and conclusions of law in a prior appeal of the same case unless: “(1) a

subsequent trial produces substantially different evidence”; (2) a contrary decision

of law applicable to that issue has since been made by a controlling authority; or

(3) the prior decision was clearly erroneous and allowing it to stand would produce

a manifest injustice. United States v. Stinson, 

, 469 (11th Cir. 1996).

      Whether the law of the case doctrine applies is a question of law we review

de novo. United States v. Bobo, 

, 1267 (11th Cir. 2005).


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                                         II.

      Federal law provides that “[n]o limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661 (emphasis

added). That includes hearsay, so long as it is sufficiently reliable, and evidence

that may not be admissible at trial, as long as the defendant has a chance to rebut

the evidence. United States v. Baker, 

, 1253-54 & n.68 (11th Cir.

2005) (abrogated in part by Davis v. Washington, 

, 

(2006), which held that the Confrontation Clause does not apply to non-testimonial

hearsay). The Supreme Court has also noted that, at sentencing, the district court

has broad discretion to consider “the fullest information possible concerning the

defendant’s life and characteristics.” Pepper v. United States, 

, 480,

, 1235 (2011). We have held that a sentencing court may even

consider relevant acquitted conduct so long as it is proven by a preponderance of

the evidence. See United States v. Faust, 

, 1348 (11th Cir. 2006).

      The Guidelines similarly provide that in deciding whether to sentence a

defendant within the guideline range, the court can consider any information about


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the defendant’s background, character, and conduct, unless it is otherwise illegal to

do so. U.S.S.G. § 1B1.4. Moreover, under Rule 32, Federal Rules of Criminal

Procedure, the court may allow the parties to introduce evidence regarding

objections to the PSI during sentencing. Fed. R. Crim. P. 32(i)(2).

        Charlestain’s motion to enforce the plea agreement advances substantially

the same arguments as his direct appeal, in which we already held that

Charlestain’s argument lacked merit and that the government was permitted to

present evidence of Charlestain’s past involvement with a homicide. Specifically,

we held that the government was permitted to present evidence of Charlestain’s

involvement with the 2009 homicide because it was relevant information to the 18

U.S.C. § 3553(a) factors, including Charlestain’s background and characteristics,

the need for deterrence, and the need to protect the public. See United States v.

Charlestain, 530 F. App’x 870, 872 (11th Cir. 2013) (unpublished). As this issue

has already been specifically litigated before us, Charlestain’s motion to enforce is

barred from consideration by the law of the case doctrine. See 

.

        Charlestain’s motion also is not saved by any of the exceptions to the law of

the case doctrine. Neither of the first two exceptions would apply, as Charlestain

has not alleged either: (1) the introduction of any substantially different evidence

or (2) the applicability of any new contrary precedent decided by a controlling


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authority. 

. Furthermore, our holding in Charlestain’s

direct appeal was not clearly erroneous. 

agreement makes

clear that the government “reserve[d] the right to inform the Court and the

probation office of all facts pertinent to the sentencing process, including all

relevant conduct information concerning the defendant and his background.” The

evidence regarding Charlestain’s involvement in the 2009 shooting was clearly

“pertinent” and concerned Charlestain’s background. Additionally, the

information about the shooting was relevant to the § 3553(a) considerations of

Charlestain’s background and characteristics, and the need to provide adequate

deterrence to prevent additional gun-related crimes and protect the public.

18 U.S.C. § 3661. For the aforementioned reasons, we affirm the district court’s

order denying Charlestain’s motion to enforce the plea agreement.

      AFFIRMED.




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