Appeal from the United States District Court UNITED STATES OF AMERICA v. Timothy S. Durham

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 13, 2016
Decided February 3, 2016
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
J. PHIL GILBERT, District Judge*
No. 15-2474 Appeal from the
United States District Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY S. DURHAM,
Defendant-Appellant.
for the Southern District of Indiana,
Indianapolis Division.
No. 1:11CR00042-1
Jane E. Magnus-Stinson,
Judge.
O R D E R
Timothy Durham, James Cochran, and Rick Snow operated a massive Ponzi
scheme resulting in losses of more than $200 million to thousands of victims. The three
men were convicted on multiple counts of conspiracy, securities fraud, and wire fraud,
and received lengthy sentences. In a previous appeal, we affirmed their convictions and
sentences in all respects except one: we vacated two of Durham’s ten counts of
conviction and remanded for resentencing “without those counts in the mix.” United
States v. Durham (“Durham I”), 766 F.3d 672, 676 (7th Cir. 2014).
* Of the Southern District of Illinois, sitting by designation.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 15-2474 Page 2
On remand Durham attempted to reopen the district court’s previous
loss-amount calculation, see U.S.S.G. §2B1.1, which had been challenged and explicitly
affirmed in the earlier appeal, Durham I, 766 F.3d at 686–88. The judge declined to revisit
the matter because the loss amount was conclusively fixed in Durham I and was now law
of the case. The judge found that Durham’s final offense level of 47—above the top level
of 43 under the Sentencing Guidelines—remained the same without the two vacated
counts “in the mix.” Indeed, the probation office prepared a new presentence report, but
the guidelines calculations were unchanged. After reweighing the sentencing factors
under 18 U.S.C. § 3553, the judge reimposed the same sentence: 50 years in prison.
Durham again appeals, arguing primarily that he was entitled to reopen the
loss-amount calculation at resentencing. That’s incorrect. “If this [c]ourt remands to
correct a ‘discrete, particular error that can be corrected … without … a redetermination
of other issues, the district court is limited to correcting that error.’” United States v.
Barnes, 660 F.3d 1000, 1006 (7th Cir. 2011) (quoting United States v. Parker, 101 F.3d 527,
528 (7th Cir. 1996)). And the law-of-the-case doctrine generally prohibits the district
court “from reconsidering on remand an issue expressly or impliedly decided by a
higher court.” United States v. Adams, 746 F.3d 734, 744 (7th Cir. 2014) (quotation marks
omitted).
We considered and rejected Durham’s challenge to the district court’s
loss-amount calculation in the earlier appeal. Durham I, 766 F.3d at 686–88. That
determination is conclusive; the mandate rule and the law-of-the-case doctrine combine
to prohibit Durham’s effort to reopen it.
Durham also argues that he is entitled to yet another resentencing based on a
recent clarification of the loss-amount guideline regarding the manner of calculating
intended loss. We previously affirmed the district court’s loss-amount calculation based
on an actual loss in excess of $200 million; that’s independently sufficient regardless of
the intended loss. Id. at 688.
Finally, Durham argues that because his sentence was based on judge-found facts,
it violates his Fifth and Sixth Amendments rights to due process and trial by jury. This
argument wasn’t raised in Durham I and thus is waived. Barnes, 660 F.3d at 1006 (“[A]ny
issue that could have been raised on [an earlier] appeal but was not is waived … .”).
AFFIRMED.

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