Law-of-the-Case Bars Renewed Rule 404(b) Admissibility Challenges on Retrial; “Same Sentence Anyway” Renders Guidelines Disputes Non-Dispositive if Substantively Reasonable

1. Introduction

James Harding—allegedly known as “Old School”—was prosecuted for a heroin-distribution conspiracy centered in Alabama. The government’s case relied heavily on cooperating witness Jeremy Snowden, intercepted communications referencing “Old School,” and (as other-acts evidence) contraband recovered from a September 15, 2021 search of Harding’s home—conduct occurring after the charged conspiracy ended in April 2019.

This appeal followed a second trial. In the earlier appeal, the Eleventh Circuit held the 2021 search evidence was admissible under Federal Rule of Evidence 404(b) (but not “intrinsic”), and it vacated because the district court failed to provide an appropriate limiting instruction. On remand, the district court admitted the same evidence with a limiting instruction; the jury convicted Harding of conspiracy but acquitted him on a possession count; and the court imposed a 365-month sentence.

The key issues on this second appeal were:

• Sufficiency: whether Snowden’s cooperating testimony could support a conspiracy conviction;
• Evidence: whether admitting the 2021 search evidence was an abuse of discretion despite the prior appellate ruling;
• Sentencing: whether alleged Guidelines errors required reversal when the district court said it would impose the same sentence regardless.

2. Summary of the Opinion

The Eleventh Circuit affirmed across the board.

• Sufficiency: The court held the evidence—especially Snowden’s testimony identifying Harding as “Old School” and describing recurring heroin supply—was sufficient. Credibility disputes were for the jury unless testimony was “unbelievable as a matter of law.”
• Rule 404(b) evidence: The panel held the admissibility of the 2021 search evidence was already resolved in the prior appeal; under law-of-the-case, Harding could not relitigate that issue. The district court properly admitted the evidence with a limiting instruction on retrial.
• Sentence: The panel declined to reach procedural-Guidelines challenges because the district court stated it would impose the same sentence “irrespective of the guidelines,” and the sentence was substantively reasonable in light of Harding’s criminal history, seriousness of the offense, and deterrence/incapacitation considerations.

3. Analysis

3.1 Precedents Cited

• United States v. Harding, 104 F.4th 1291 (11th Cir. 2024)
  Role in this appeal: This prior decision did two important things that shaped the second appeal. First, it held the “2021 search evidence was admissible under Rule 404(b) to establish Harding’s intent to distribute heroin” and that the probative value was not substantially outweighed by unfair prejudice. Second, it held the district court erred by treating the evidence as “intrinsic” and by failing to give a limiting instruction. In 2026, that first holding becomes binding via law-of-the-case, while the district court cures the earlier instructional defect by giving the limiting instruction at retrial.
• United States v. Jiminez, 564 F.3d 1280 (11th Cir. 2009)
  Role in this appeal: Supplies the sufficiency-of-the-evidence standard: view evidence in the light most favorable to the government; affirm if a reasonable trier of fact could find guilt beyond a reasonable doubt. The panel uses Jiminez to frame review and to reject Harding’s “insufficient evidence” claim.
• United States v. Gregory, 128 F.4th 1228 (11th Cir. 2025)
  Role in this appeal: Provides (1) the elements of a § 846 drug conspiracy and (2) the credibility rule that appellate courts assume the jury resolved credibility in favor of the verdict unless testimony is “unbelievable as a matter of law.” Gregory is the core doctrinal support for affirming a conspiracy conviction based largely on a cooperating witness.
• United States v. Thompson, 422 F.3d 1285 (11th Cir. 2005)
  Role in this appeal: Defines “incredible as a matter of law” narrowly—only where the witness describes things physically impossible or contrary to natural laws. This makes Harding’s attack on Snowden’s motives (cooperation for leniency) legally insufficient to undo the verdict.
• United States v. Jordan, 429 F.3d 1032 (11th Cir. 2005)
  Role in this appeal: Establishes the law of the case doctrine: issues decided explicitly or by necessary implication in a prior appeal cannot be relitigated in later stages of the same case. The panel applies Jordan to bar Harding’s renewed argument that the 2021 search evidence was irrelevant/unduly prejudicial under Rule 404(b).
• United States v. Sotelo, 130 F.4th 1229 (11th Cir. 2025)
  Role in this appeal: Provides the abuse-of-discretion framework for substantive reasonableness (improper weighting of factors, ignoring significant factors, clear error of judgment). It anchors the court’s reasonableness review of the 365-month sentence.
• United States v. Grushko, 50 F.4th 1 (11th Cir. 2022)
  Role in this appeal: Authorizes affirmance without resolving alleged procedural sentencing errors when the district court says it would impose the same sentence anyway and the sentence is substantively reasonable. Grushko is the panel’s gateway to sidestep disputes over drug quantity and enhancements.
• United States v. Keene, 470 F.3d 1347 (11th Cir. 2006)
  Role in this appeal: The underlying “same sentence anyway” principle quoted through Grushko: it is pointless to remand for Guidelines errors when the district court would impose the same (reasonable) sentence. Keene effectively turns some Guidelines disputes into non-prejudicial issues when the record shows an alternative identical sentence.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc)
  Role in this appeal: Supplies the “definite and firm conviction” benchmark for finding a clear error of judgment in substantive-reasonableness review. The panel invokes Irey to conclude the 365-month sentence falls within permissible discretion.

3.2 Legal Reasoning

A. Sufficiency of the evidence: cooperating-witness testimony and conspiracy proof

Harding’s sufficiency attack focused on Snowden’s incentives to cooperate. The panel’s reasoning follows settled Eleventh Circuit doctrine:

• Credibility is for the jury. The court presumes the jury resolved contradictions and motives in favor of the verdict. A cooperation agreement and hope for leniency create impeachment material, not legal “incredibility.”
• “Unbelievable as a matter of law” is exceedingly narrow. By using Thompson’s definition (impossible observations or events), the panel rejects Harding’s effort to transform impeachment into insufficiency.
• Conspiracy elements can be inferred. Applying Gregory, the panel emphasizes the government need not prove Harding knew every detail; knowledge of the essential nature and voluntary participation suffice. Snowden’s account of repeated heroin supply over time supports the inference of an agreement and Harding’s knowing participation.

B. Rule 404(b) on retrial: law-of-the-case limits re-litigation

The evidentiary issue is shaped by the procedural history. In 2024, the court already held the 2021 search evidence admissible under Rule 404(b) to show intent and not unduly prejudicial (while requiring a limiting instruction). On retrial, the district court admitted the evidence and delivered the instruction. On appeal, the panel treats Harding’s renewed admissibility challenge as barred by law-of-the-case (Jordan).

Crucially, the panel does not reopen (or refine) the Rule 404(b) balancing analysis; it treats the earlier holding as controlling and focuses on whether the retrial complied with the mandated limiting-instruction framework—which it did.

C. Sentencing: when alleged procedural errors do not drive the outcome

Harding raised procedural challenges to the base offense level and enhancements (career offender, firearm, manager/supervisor). The panel relies on Grushko (quoting Keene) to avoid those issues because:

• The district court stated it would impose the same 365-month sentence “irrespective of the guidelines,” creating a clear alternative-sentence record; and
• The panel found the sentence substantively reasonable under the § 3553(a) factors—especially criminal history, seriousness, deterrence, and incapacitation.

Thus, the appellate inquiry becomes: even assuming Guidelines error, is the ultimate sentence reasonable? Applying Sotelo and Irey, the panel answered yes.

3.3 Impact

• Rule 404(b) retrials: stability after remand. The decision underscores that once an appellate court has ruled evidence admissible under Rule 404(b), a defendant generally cannot re-argue admissibility on remand and re-appeal; the fight shifts to compliance with the appellate mandate (e.g., proper limiting instructions). This promotes finality and narrows retrial disputes to genuinely new circumstances.
• Cooperating witnesses: high bar for insufficiency reversal. The opinion reaffirms that cooperation incentives rarely create appellate sufficiency problems. Unless testimony is physically impossible, credibility remains for the jury—even if the witness is central to identity and agreement proof.
• “Same sentence anyway” doctrine: incentivizes explicit alternative sentences. By affirming without reaching Guidelines disputes, the opinion reinforces a practical lesson: a district court that clearly states an identical alternative sentence (and ties it to § 3553(a) factors) can insulate the judgment from certain procedural-Guidelines challenges, shifting appellate scrutiny to substantive reasonableness.
• Litigation strategy effects. Defendants may focus more on contesting the substantive reasonableness record—mitigation, rehabilitation evidence, disparity arguments—when the district court creates a robust alternative-sentence explanation.

4. Complex Concepts Simplified

• Rule 404(b) evidence (other-acts evidence): Evidence of “other” conduct not charged in the indictment generally cannot be used to show the defendant’s “bad character” or propensity. But it can be used for specific purposes such as proving intent, knowledge, motive, or identity—if its probative value is not substantially outweighed by unfair prejudice.
• “Intrinsic” vs. Rule 404(b): “Intrinsic” evidence is considered part of the charged offense story itself; Rule 404(b) evidence is separate and needs a limited-purpose justification. The prior appeal rejected the intrinsic label for the 2021 search evidence but allowed it under Rule 404(b).
• Limiting instruction: A direction from the judge telling jurors the narrow purpose for which they may consider other-acts evidence (here: knowledge/intent), and that it cannot be used to convict simply because the defendant may have done other wrongs. The absence of such an instruction drove the 2024 reversal; providing it supported affirmance here.
• Law of the case: Once an appellate court decides an issue in the same case, the issue generally stays decided. It prevents repetitive litigation and gives effect to appellate mandates on remand.
• Sufficiency of evidence vs. credibility: “Sufficiency” asks whether any reasonable jury could convict on the evidence. “Credibility” asks whether the jury should believe a witness. Appellate courts rarely second-guess credibility—especially where cross-examination exposed biases and the jury still convicted.
• Procedural vs. substantive sentencing reasonableness: “Procedural” focuses on correct Guidelines calculations and proper method. “Substantive” asks whether the final sentence is reasonable under § 3553(a). Under Grushko/Keene, an appellate court may bypass some procedural disputes if the judge clearly would impose the same sentence anyway and that sentence is substantively reasonable.

5. Conclusion

United States v. James Harding illustrates three durable appellate principles in the Eleventh Circuit: (1) a cooperating witness’s motives are classic impeachment for the jury, not a sufficiency defect absent physical impossibility; (2) when the court has already deemed evidence admissible under Rule 404(b), law-of-the-case sharply limits relitigation on retrial—particularly where the remand problem (here, the limiting instruction) is cured; and (3) alleged Guidelines errors may not warrant reversal where the district court makes a clear “same sentence irrespective of the guidelines” statement and the sentence is substantively reasonable under § 3553(a).